Contracts
MASTER SUBSCRIPTION AGREEMENT
Effective March 15th 2024
DownloadTable of Contents
MASTER SUBSCRIPTION AGREEMENT
This master subscription agreement, ("MSA") which may include any relevant ordering documents and exhibits (collectively, “Agreement”), is made by and between CB Information Services, Inc., a corporation validly existing under the laws of Delaware (“CB Insights”) and the specific person or entity identified as the licensee or customer or party thereto in the associated agreement, ordering document, or purchase order (“Customer” or “You”). Customer and CB Insights may be collectively referred to as the “Parties” or individually as a “Party.” This MSA governs Your purchase and use of the Services and Licensed Materials (as defined herein, respectively) and shall be effective as of the date electronically accepted or last signed, whichever the case may be (“Effective Date”). CB Insights may amend this MSA at any time by posting a revised version on legal.cbinsights.com. Each revised version will state its effective date, which will be on or after the date posted by CB Insights. If the revised version materially reduces Your rights under this MSA, CB Insights will send notice to the email address it has on file, and request acceptance of the materially changed version. Otherwise, Your continued use of the Services after the effective date of a non-materially revised version of this MSA constitutes your acceptance of the terms.
The Parties acknowledge that the terms 'Order Form' and 'Webpage Checkout', as defined below, refer to the specific applicable ordering document executed or accepted, as the case may be, by Customer. The term "or" when used between 'Order Form' and 'Webpage Checkout' shall not be interpreted to mutually exclude Your obligations, responsibilities, or liabilities if You purchase Services through both ordering documents.
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Services
Notwithstanding any of the foregoing:
(i) to the extent Customer receives any Licensed Materials through a CB Insights API or other direct data feed, Customer agrees it may only use such retrieved Licensed Materials for internal purposes and may not distribute such received Licensed Materials to any third parties; no raw data from either the CB Insights platform or data solutions (API and data feed) may be included in any of Customer’s databases or systems that are accessible by Customer’s clients or otherwise used as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using such raw data as a primary source to create and/or maintain any market index or database that Customer publishes or distributes to third parties; and
(ii) Customer may use and apply information from Transcripts for the purpose of internal business activities, but (x) in connection with Buyer Transcripts or Investor Transcripts, under no circumstances shall Customer be permitted to identify, quote, or attribute insights or opinions to a Transcript participant or to CB Insights (for the sake of clarity, the foregoing (x) does not apply to Earnings Transcripts) and (y) any written materials provided in connection to any Transcript may not be redistributed, disseminated, published, or displayed, in whole or in part, with any third parties without prior written permission of CB Insights.
d. Limitations. Customer shall not, and shall cause its Users to not: (i) distribute Licensed Materials to a third-party in any quantity or manner that would serve as a substitute for the purchase of a subscription to the Services or Licensed Materials by the recipient; (ii) use the Licensed Materials to train or teach any large language model or other artificial intelligence algorithm; (iii) scrape, strip, mine, or manipulate the Services, including through introduction of software or automated agents such as a bot or webcrawler; (iv) work around any technical limitations CB Insights imposes, or attempt to otherwise disrupt the operation of the Services; (v) use the Services in a manner contrary to or in violation of any applicable laws; (vi) use the Services in any manner except as expressly permitted in this MSA; (vii) market, sell, license, or commercially distribute the Services to third parties or use as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using the Licensed Materials as a primary source to create and/or maintain any market index, database, interface, mobile platform, or software program that the Customer publishes or distributes or commercially provides to third parties; (viii) decompile or reverse engineer any software relating to the Services; or (ix) use the Services in any manner which competes against CB Insights.
e. AI-powered Functionality. Certain features of the Services may be powered by large language model(s) or other artificial intelligence algorithm(s) (“AI-powered Functionality”). Customer may provide input to the AI-powered Functionality through freeform text (“Input") or via selection of pre-determined sets of skills. The Services may generate responsive output based on the Input and skills selection (“Output”). Customer remains responsible for all Input provided to the Services, and Customer represents and warrants that it: (i) has all rights, licenses, and any other permissions necessary to provide the Input, and (ii) will not provide any Input that (x) is illegal, fraudulent, abusive, or harmful, (y) infringes the rights of privacy or publicity of any third party, or infringes, violates, or misappropriates any patent, copyright, trademark, or trade secret right of any third party, or (z) contains any Confidential Information or any information relating to an identified or identifiable natural person, including information that is protected as personal data, personal information, or personally identifiable information under applicable data protection law(s). Customer acknowledges that due to the nature of the Services and the rapidly evolving nature of artificial intelligence, Output may not be accurate and may from time to time include misleading results that appear accurate but are not, and Output may not be unique and other CB Insights customers may receive similar or even identical Output from the Services. As between Customer and CB Insights, CB Insights retains all rights, title, and interest in and to all Output; Customer may use Output in accordance with this MSA. Output may be customized based on Customer’s platform usage history (for example, saved searches); CB Insights continues to own all Output, but no such customized Output will be shared with other CB Insights customers. For the sake of clarity, Customer continues to own Customer Data, and CB Insights does not use Customer Data to train or teach any large language model or other artificial intelligence algorithm.
f. Links to Other Websites. Customer acknowledges and agrees that Users may, through hypertext or other computer links available in the Services, elect to gain access to websites operated by individuals or entities other than CB Insights. Such hyperlinks are provided for Customer’s and its Users’ reference and convenience only and are the exclusive responsibility of the owners of each such website. Customer agrees and acknowledges that CB Insights is not responsible for the content or operation of such websites, and that CB Insights shall have no liability to Customer, Users, or any other person or entity for the use of third-party websites. Customer and/or its Users are solely responsible for determining the extent to which Users may use any content at any other such websites. Additionally, Customer acknowledges and agrees that such websites may be subject to terms and conditions which may be different from this MSA and which will govern with respect to Users’ use of such websites.
g. Registration and User ID Security. Some of the Services require secure login through a unique username and password (collectively, “User ID”). If Users access the Services using secure User IDs, Customer agrees as follows (and shall compel its Users to agree) for purposes of initial registration and general User ID security: (i) as part of the registration process which may be necessary to obtain access to the Services, Customer shall provide certain truthful registration information to CB Insights (subject to all confidentiality obligations stated herein), with each registration being for a single User only; (ii) Users shall have access to the Services during the Subscription Term through the User ID, which may be used by Users to gain access to the Services only for so long as such Users are authorized to access and use the Services in accordance with the terms of this MSA or the applicable Order Form or Webpage Checkout; and (iii) Customer agrees to treat the User ID as confidential and, as to the Users, not to disclose or share such User ID, either directly or indirectly, to any person other than as directed by Customer or permitted by CB Insights in writing. Notwithstanding anything to the contrary stated herein, CB Insights shall not be liable to Customer or any third person or entity for any loss or damage directly arising from Customer’s failure to comply with these security requirements.
h. Monitoring; Compliance. Subject to any confidentiality obligations contained herein or in an applicable Order Form or Webpage Checkout, CB Insights reserves the right to monitor the use of the Services to ensure compliance with the terms of this MSA, including verifying the number of Customer’s Users, and to maintain and improve the provision of the Services. If CB Insights reasonably suspects non-compliance with the terms of this MSA by Customer or any of its Users, CB Insights reserves the right to suspend access to the Services until Customer remedies such non-compliance to CB Insights’ reasonable satisfaction.
i. Beta Releases. From time to time, CB Insights may offer Customer the opportunity to use certain experimental features within or versions of the Services that are made available on a trial basis (each a “Beta Release”). ALL BETA RELEASES ARE PROVIDED “AS IS,” WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR OBLIGATIONS OF ANY KIND. Use of any Beta Release is solely at Customer’s risk and, notwithstanding anything to the contrary, CB Insights will have no liability related to Customer’s use of any Beta Release. CB Insights may modify or remove any Beta Release at any time. Use of any Beta Release may be subject to additional terms and conditions.
2. Fees and Payment Terms
- Fees. Customer will pay CB Insights all Fees in accordance with this Section 2 and the applicable Order Form or Webpage Checkout. Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable and Fees paid are non-refundable unless this MSA or an applicable Order Form or Webpage checkout is terminated for cause by Customer pursuant to Section 8(c), in which case any prepaid, unearned Fees will be refunded in a prorated amount.
- Invoices and Payment. Customer shall pay Fees according to the terms of the applicable Order Form or Webpage Checkout. If Customer adds Users via the Services in excess of the number of licensed Users set forth in the applicable Order Form or Webpage Checkout, CB Insights reserves the right to invoice Customer for a true-up to the actual number of Users at a prorated amount of the annual rate stated in the applicable Order Form or Webpage Checkout; such additional Users shall be deemed Users under this MSA and for any renewals of the applicable Order Form or Webpage Checkout.
- Late Charges; Suspension. Overdue Fees shall accrue late interest charges at the rate of 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. Customer acknowledges that failure to timely pay Fees may result in loss of access to the Services.
- Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from CB Insights’ provision of the Services hereunder, except any taxes assessed upon CB Insights’ net income or payroll. If CB Insights is required to directly pay Taxes related to Customer’s use or receipt of any Services, Customer agrees to promptly reimburse CB Insights for any amounts paid by CB Insights.
3. Proprietary Rights
- Customer Data. As between Customer and CB Insights, Customer retains all rights, title, and interest in and to the Customer Data. Except as expressly set out in this MSA, no right, title, or license under any Customer Data is granted to CB Insights or implied hereby, and for any Customer Data that is licensed to CB Insights, no title or ownership rights are transferred with such license.
- License to CB Insights. Notwithstanding the foregoing, Customer hereby grants CB Insights a limited, non-exclusive, non- transferable (except in connection with the permitted assignment of this MSA), and royalty-free license under Customer IPR to access and use the Customer Data made available to CB Insights or any of its Affiliates, solely as necessary for CB Insights to provide the Services to Customer pursuant to this MSA.
- CB Insights Property. As between CB Insights and Customer, CB Insights retains all rights, title, and interest in and to the CB Insights Property, and except as expressly set out in this MSA, no right, title, or license under any CB Insights Property is granted to Customer or implied hereby. For avoidance of doubt, the granting of any license herein does not affect the ownership of any Licensed Materials, whether tangible or intangible, and, unless expressly stated otherwise in an Order Form or Webpage Checkout, none of the Licensed Materials accessed through the Services shall be considered “Works Made for Hire” as defined by the copyright laws of the United States.
- Feedback. If Customer provides CB Insights with any ideas, comments or suggestions relating to the Services or Licensed Materials (“Feedback”), CB Insights retains all rights in such Feedback, and anything created as a result (including new Licensed Materials or any derivative works) are owned solely by CB Insights. For avoidance of doubt, no of Customer IPR or Customer Confidential Information shall be considered Feedback.
4. Confidentiality and Data Security
- Confidentiality. During the term of this MSA and for a period of three (3) years thereafter, each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its Affiliates, officers, directors, employees, subcontractors, agents or prospective financing sources or acquirers who need to know such information in connection with this MSA and who are bound by written agreements requiring the protection of such Confidential Information.
- Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's expense, if the Disclosing Party wishes to contest the disclosure.
- Return of Confidential Information. At any time upon the request of the Disclosing Party, or in the event of termination of this MSA, the Receiving Party will return, or destroy as so directed by the Disclosing Party, all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form; provided, however, the Receiving Party shall not be required to return or destroy electronic copies that are automatically stored in accordance with Receiving Party’s generally applicable backup policies and which are not reasonably accessible by the Receiving Party (“Backup Media”). All Backup Media shall remain subject to the confidentiality obligations set forth herein, notwithstanding the expiration or termination of this MSA, so long as it remains undeleted.
- Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 4, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
- Customer Data Security. Except as provided otherwise herein, CB Insights agrees and acknowledges that it shall consider Customer Data to be Customer’s Confidential Information. Customer agrees and acknowledges that CB Insights may use Customer Data only for the purposes of providing, maintaining, and improving the Services to and for the Customer. Notwithstanding the foregoing, Customer agrees and acknowledges that CB Insights will treat Customer Data in accordance with the CB Insights Privacy Policy and Data Processing Addendum, each located at legal.cbinsights.com.
5. Warranties; Disclaimers
- Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this MSA. Customer warrants that it will not use the Services for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party. CB Insights warrants to Customer that during the applicable Subscription Term the Services purchased by Customer will substantially perform in all material respects with the applicable portions of the Documentation; provided however, that such warranty shall not apply to non-conformities, errors, or problems caused by acts within the control of Customer or any of its Representatives, or arising from Customer’s negligence or improper use of the Services, from unauthorized modifications made to the Services, from use of the Services in an unsupported manner, or from interoperability issues arising from devices or equipment or browsers used by Customer to access the Services, or that arises from Customer’s or any third party’s software or systems
- Disclaimer. THE LICENSED MATERIALS AVAILABLE THROUGH THE SERVICES HAVE BEEN GATHERED BY CB INSIGHTS FROM SOURCES BELIEVED BY CB INSIGHTS TO BE RELIABLE AND HAVE BEEN ARRANGED IN A WAY THAT CB INSIGHTS BELIEVES WILL INCREASE THE EASE OF ACCESS, USE, AND UTILITY OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS MSA, (1) NEITHER PARTY MAKES ANY ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO THE OTHER PARTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (2) EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND (3) CB INSIGHTS’ LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICES AGAIN. CUSTOMER AGREES AND ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. CB INSIGHTS DOES NOT REPRESENT OR WARRANT THAT: (I) THE SERVICES WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS; (II) THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM ITS USE WILL BE ACCURATE OR RELIABLE; OR (III) ALL DEFICIENCIES IN THE SERVICES CAN BE FOUND OR CORRECTED. CB INSIGHTS WILL NOT BE RESPONSIBLE FOR: (A) LOSS OF DATA THAT IS NOT DUE TO A BREACH OF THIS MSA BY CB INSIGHTS; (B) THE INABILITY OF CUSTOMER OR ANY USER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET.
- No Professional Advice. CUSTOMER AGREES AND ACKNOWLEDGES THAT NONE OF THE SERVICES OR PROVISION OF LICENSED MATERIALS CONSTITUTES PROFESSIONAL ADVICE, OPINION, OR RECOMMENDATION BY CB INSIGHTS. CB INSIGHTS DOES NOT CLAIM TO BE AND IS NOT A BROKER, DEALER OR INVESTMENT ADVISOR AND NOTHING HEREIN SHALL CONSTITUTE A SALE OR OFFER TO BUY, SELL, OR RECOMMEND ANY SECURITIES OR COMPANIES. CUSTOMER ACKNOWLEDGES THAT IT MAKES ITS OWN INVESTMENT DECISIONS BASED UPON ITS OWN DUE DILIGENCE, INVESTIGATION AND OTHER SPECIFIC INVESTMENT CRITERIA.
- Transcript Disclaimer. CB Insights has not undertaken to verify the accuracy of any information or data provided in any Transcript. Any statements, views or opinions contained in any Transcript do not represent the statements, views, or opinions of CB Insights. CB Insights expressly disclaims any responsibility or liability for the content of any Transcript or for any consequences that may arise from the use of or reliance on the information or data contained in any Transcript, to the fullest extent permitted by law.
6. Indemnification
- Indemnification by CB Insights. CB Insights will defend and pay Customer, its employees, directors and officers (the “Customer Indemnified Parties”) from and against any and all costs, damages and expenses, including reasonable attorneys’ fees (collectively, “Losses”), suffered or incurred by any Customer Indemnified Party, as a result of any claim brought by a third party (“Third Party Claim”) against a Customer Indemnified Party alleging that the use of the Services in accordance with the terms and conditions of this MSA infringes any patent, copyright, trademark or trade secret right of such third party (an “Infringement Claim”). Without limiting the foregoing, in the event that the Services or any part thereof is likely to, in CB Insights’ sole opinion, or do become the subject of an Infringement Claim, CB Insights may, at its option and expense: (i) procure for Customer the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non- infringing replacement for such item, (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the MSA and any outstanding Order Forms or Webpage Checkouts and refund to Customer Fees paid by Customer to CB Insights for the infringing items in an amount prorated to reflect the period of time between the date Customer was unable to use the Services due to such Infringement Claim and the remaining days in the current Subscription Term. CB Insights shall have no liability for any Infringement Claim arising from (1) Customer’s supply to CB Insights of any Customer Data; (2) use of the Services other than in accordance with the MSA or in combination with any software, hardware, network or system not supplied by CB Insights if the alleged infringement relates to such combination; (3) any modification or alteration of the Services (other than by CB Insights), if the alleged infringement arises in connection with such modification or alteration; or (4) Customer’s violation of applicable law or third party rights.
- Indemnification by Customer. Customer will defend and pay CB Insights, its employees, directors and officers (the “CB Insights Indemnified Parties”) from and against any and all Losses, suffered or incurred by any CB Insights Indemnified Party, arising from any Third Party Claim against any CB Insights Indemnified Party: (i) alleging that any Customer Data or Customer’s use of the Services beyond the license granted in this MSA (x) violates applicable law, (y) violates the rights of privacy or publicity of any third party, or (z) infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party, and/or (ii) of infringement or misappropriation excluded from CB Insights’ foregoing indemnity obligations under Section 6(a).
- Indemnification Conditions. The Parties’ obligations under this Section 6 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim subject to indemnification under this Section 6, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section 6 are subject to the limitations and exclusions set forth in Section 7 below, and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable Third Party Claim.
7. Limitation of Liability
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS MSA, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE (THE “LIABILITY CAP”), EXCEPT THAT: (I) LIABILITY ARISING OUT OF A BREACH OF THE OBLIGATIONS IN SECTION 4 (CONFIDENTIALITY AND DATA SECURITY) WILL INSTEAD BE LIMITED TO THE HIGHER LIMIT OF THREE TIMES (3X) THE LIABILITY CAP; AND (II) CUSTOMER’S BREACH OF SECTION 1(d) AND THE GROSS NEGLIGENCE AND WILLFUL MISCONDUCT OF EITHER PARTY WILL NOT BE LIMITED BY THE LIABILITY CAP. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS MSA FAIL OF THEIR ESSENTIAL PURPOSE.
- Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THIS MSA.
8. Term and Termination
- Term of MSA. This MSA commences on the Effective Date and shall remain in effect until terminated in accordance with Section 8(c).
- Term of Subscriptions. Customer’s access to the purchased Services shall commence on the start date specified in the relevant Order Form or Webpage Checkout and continue for the Subscription Term specified on such Order Form or Webpage Checkout. If Customer purchases access to the Services through CB Insights' website, Customer’s Subscription Term will automatically renew upon the last day of the then-current Term unless Customer opts out of such renewal at least thirty (30) days prior to such date.
- Termination. Either Party may terminate this MSA and/or any Order Form or Webpage Checkout by providing written notice to the other Party in the event (i) the other Party materially breaches any of its duties, obligations or responsibilities under this MSA and fails to cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach, or provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan; (ii) a receiver, trustee, administrator, or administrative receiver is appointed for the other Party or its property; (iii) the other Party makes an assignment for the benefit of creditors; (iv) any proceedings should be commenced against the other Party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings shall not be vacated or set aside within sixty (60) days from the date of commencement thereof; or (v) the other Party is liquidated or dissolved. In addition, a Party may terminate this MSA by providing written notice to the other Party if there are no Order Forms or Webpage Checkouts in effect for more than ninety (90) days, continuously. For avoidance of doubt, neither Party may terminate this MSA or any applicable Order Form or Webpage Checkout for convenience during the Subscription Term.
- Effect of Termination. Expiration or termination of one Order Form or Webpage Checkout shall not affect any other Order Forms or Webpage Checkouts. Upon termination of this MSA for any reason or termination of an Order Form or Webpage Checkout, Customer shall (and shall ensure that all Users provisioned access pursuant to the applicable Order Form shall) immediately cease accessing and using the Services and Licensed Materials, and Customer must promptly delete and destroy all copies of Licensed Materials stored on Customer systems or that is otherwise in Customer’s possession or under Customer’s control. Customer may, however, retain Licensed Materials in aggregate form that is included in Work Product, articles, blogs, or other content or materials, that were created in accordance with the terms of this MSA prior to the effective date of termination. Additionally, Customer may retain Licensed Materials which are required to be retained pursuant to regulatory or other data-retention policies. Customer is prohibited from using Licensed Materials after termination in any other manner. Upon request by CB Insights, Customer shall provide sworn certification in a form provided by CB Insights by a duly authorized officer of Customer that all Licensed Materials have been destroyed as required herein.
- Surviving Provisions. The following provisions shall survive the termination or expiration of this MSA for any reason and shall remain in effect after any such termination or expiration: Sections 1(d), 2, 3(a) and (c), 4, 7, 8(d) and (e), and 9. Termination or expiration of this MSA shall not affect any obligation accrued or arising prior to such termination or expiration.
9. Miscellaneous Provisions
- Relationship. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties and CB Insights will be considered an independent contractor when performing any Services hereunder.
- Customer Affiliates. An Affiliate or parent of Customer may also purchase Services subject to the terms of this MSA by executing Order Forms with CB Insights hereunder. By entering into an Order Form hereunder, the Affiliate agrees to be bound by the terms of this MSA as if it were an original party hereto.
- Entire Understanding. This MSA (including all Exhibits and Order Forms or Webpage Checkouts, all of which are incorporated herein by reference) constitutes the entire agreement between the Parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this MSA. To the extent of any conflict or inconsistency between the provisions in the body of this MSA and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Customer purchase order or in any other ordering documentation (excluding Order Forms) are hereby rejected; should Customer submit a purchase order or other ordering documentation to CB Insights (excluding Order Forms), such submission is deemed to be Customer’s acceptance of this MSA. Such terms will not be deemed incorporated into or form any part of this MSA, and all such terms or conditions are null and void.
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 1(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Modification; Waiver and Cumulative Remedies. Except for CB Insights’ modification or update of the Services, or any policies as necessary to comply with applicable law, rules, regulations, no modification of this MSA, and no waiver of any breach of this MSA or right under this MSA, is legally binding against the other Party unless in writing and signed or electronically accepted by both Parties. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
- Arbitration; Governing Law; Venue. The parties hereto agree that any dispute, claim or controversy arising out of or relating to this MSA or the breach, termination, enforcement, interpretation or validity hereof or thereof, including the determination of the scope or applicability of this MSA to arbitrate, shall be determined by final and binding arbitration in New York City, New York (except for an action for interim equitable relief otherwise permitted under this MSA and/or unless otherwise agreed by the Parties), before a sole arbitrator, in accordance with the laws of the State of New York for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and Procedures; provided, however, if the Parties mutually elect, the arbitration can be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures instead of its Comprehensive Arbitration Rules and Procedures. The arbitrator’s decision shall be reduced to writing, signed by the arbitrator, and mailed to each of the parties and their legal counsel. All decisions of the arbitrator shall be final, binding and conclusive on the parties. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a decision in accordance with applicable law in any court having jurisdiction thereof. The Parties will pay their own costs (including, without limitation, attorneys’ fees) and expenses in connection with such arbitration.
- Publicity. Any press release developed by a Party regarding this MSA shall be subject to the prior written consent of the other Party. CB Insights may identify Customer as a user of the Services by referencing Customer’s name and logo, provided that such reference is consistent with Customer’s generally applicable branding guidelines and that CB Insights will cease making such references after receiving written notice from Customer to do so.
- Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, CB Insights may assign this MSA in its entirety, together with all rights and obligations hereunder, without consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this MSA. Any attempt by a Party to assign its rights or obligations under this MSA in breach of this section shall be void and of no effect. Subject to the foregoing, this MSA shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
- Notices. All notices under this MSA shall be in writing and shall be delivered to the emails or addresses first set forth in the Order Form(s) or Webpage Checkout(s), as applicable. Either Party may change its address for notice by giving notice of such address change in the manner provided herein. All communications and notices to be made or given pursuant to this MSA shall be in the English language.
- Anti-Corruption. Customer acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any CB Insights employees, agent or representative in connection with this MSA, other than reasonable gifts and entertainment provided in the ordinary course of business. Customer will promptly notify CB Insights if it offers or receives any such improper payment or transfer in connection with this MSA.
- Severability. If any provision of this MSA is held by a court of competent jurisdiction to be contrary to law, 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 MSA shall remain in effect.
10. Definitions
- “Affiliate” of a Party means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity (and the correlative terms, “controlled by” and “under common control with”) means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.
- “CB Insights Property” means (i) the Services, (ii) all Licensed Materials supplied by CB Insights in connection with, or used by CB Insights in providing, any of the foregoing, and (iii) all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to any of the foregoing. For clarity, CB Insights Property includes any information, data, or other content derived from CB Insights’ authorized monitoring of any User’s access to or use of the Services but does not include Customer Data.
- “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed, including pricing and other terms set forth in an Order Form or Webpage Checkout. The CB Insights Property shall constitute CB Insights’ Confidential Information regardless of the means or manner by which it is disclosed. Customer Data shall constitute Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information that a Receiving Party can show: (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; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
- “Customer Data” means all data or information submitted, electronic or otherwise, by or on behalf of Customer to the Services and/or to CB Insights, including Input, and all patent, copyright, trade secret or other intellectual property rights embodied in or related to any of the foregoing (the “Customer IPR”).
- “Documentation” means all documentation and other instructional material, if applicable, made available by CB Insights regarding the use of the Services.
- “Fees” means all fees specified in or otherwise incurred pursuant to an Order Form or Webpage Checkout.
- “License” means a current and valid license to access or use the Services, and which may include, but is not limited to, purchased subscription to the Services for one or more Users, or any other valid and authorized right/license as permitted by CB Insights.
- “Licensed Materials” means all content and data and reports, including without limitation, metrics, calculations, text, research, ratings, rankings, opinions, photographs, video, audio, graphics, tools, analytics, functionality, Output, products and information displayed and/or otherwise provided by the Services.
- “Order Form” means an ordering document for Services purchased from CB Insights that has been executed hereunder by the Parties, or as the case may be, electronically accepted by the Customer, including without limitation any attached or associated statement of work.
- “Representatives” means with respect to any individual and/or the entity on whose behalf such individual is entering into a commercial agreement with CB Insights, all users, employees, agents, subcontractors and other representatives of such individual or entity (as applicable).
- “Services” means any of the paid or trial subscriptions to various online, web-based applications, software services, data feeds or data delivery materials, application programming interface (“API”), data downloads and plugins as well as certain standalone or recurring research services or reports, including Transcripts, provided by CB Insights directly or via certain websites owned and operated by CB Insights, as well as (i) the Licensed Materials contained therein, and (ii) any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.
- “Subscription Term” means the subscription period set forth in the applicable Order Form or Webpage Checkout during which CB Insights agrees to provide the Services to Customer.
- "Transcript" means a transcript of a scripted conversation with a third party, such as a software buyer or an investor (respectively, a “Buyer Transcript” or “Investor Transcript”), or a transcript of a company earnings call (an “Earnings Transcript”).
- “User” means a person directly employed by Customer who has an email address with Customer’s organization and is the recipient of the Services.
- "Webpage Checkout" means an ordering document for Services purchased through a self-service checkout process through CB Insights' website.
Effective March 11th 2024 to March 15th 2024
DownloadTable of Contents
MASTER SUBSCRIPTION AGREEMENT
This master subscription agreement, ("MSA") which may include any relevant ordering documents and exhibits (collectively, “Agreement”), is made by and between CB Information Services, Inc., a corporation validly existing under the laws of Delaware (“CB Insights”) and the specific person or entity identified as the licensee or customer or party thereto in the associated agreement, ordering document, or purchase order (“Customer” or “You”). Customer and CB Insights may be collectively referred to as the “Parties” or individually as a “Party.” This MSA governs Your purchase and use of the Services and Licensed Materials (as defined herein, respectively) and shall be effective as of the date electronically accepted or last signed, whichever the case may be (“Effective Date”). CB Insights may amend this MSA at any time by posting a revised version on legal.cbinsights.com. Each revised version will state its effective date, which will be on or after the date posted by CB Insights. If the revised version materially reduces Your rights under this MSA, CB Insights will send notice to the email address it has on file, and request acceptance of the materially changed version. Otherwise, Your continued use of the Services after the effective date of a non-materially revised version of this MSA constitutes your acceptance of the terms.
The Parties acknowledge that the terms 'Order Form' and 'Webpage Checkout', as defined below, refer to the specific applicable ordering document executed or accepted, as the case may be, by Customer. The term "or" when used between 'Order Form' and 'Webpage Checkout' shall not be interpreted to mutually exclude Your obligations, responsibilities, or liabilities if You purchase Services through both ordering documents.
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Services
Notwithstanding any of the foregoing:
(i) to the extent Customer receives any Licensed Materials through a CB Insights API or other direct data feed, Customer agrees it may only use such retrieved Licensed Materials for internal purposes and may not distribute such received Licensed Materials to any third parties; no raw data from either the CB Insights platform or data solutions (API and data feed) may be included in any of Customer’s databases or systems that are accessible by Customer’s clients or otherwise used as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using such raw data as a primary source to create and/or maintain any market index or database that Customer publishes or distributes to third parties; and
(ii) Customer may use and apply information from Transcripts for the purpose of internal business activities, but (x) in connection with Buyer Transcripts or Investor Transcripts, under no circumstances shall Customer be permitted to identify, quote, or attribute insights or opinions to a Transcript participant or to CB Insights (for the sake of clarity, the foregoing (x) does not apply to Earnings Transcripts) and (y) any written materials provided in connection to any Transcript may not be redistributed, disseminated, published, or displayed, in whole or in part, with any third parties without prior written permission of CB Insights.
d. Limitations. Customer shall not, and shall cause its Users to not: (i) distribute Licensed Materials to a third-party in any quantity or manner that would serve as a substitute for the purchase of a subscription to the Services or Licensed Materials by the recipient; (ii) use the Licensed Materials to train or teach any large language model or other artificial intelligence algorithm; (iii) scrape, strip, mine, or manipulate the Services, including through introduction of software or automated agents such as a bot or webcrawler; (iv) work around any technical limitations CB Insights imposes, or attempt to otherwise disrupt the operation of the Services; (v) use the Services in a manner contrary to or in violation of any applicable laws; (vi) use the Services in any manner except as expressly permitted in this MSA; (vii) market, sell, license, or commercially distribute the Services to third parties or use as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using the Licensed Materials as a primary source to create and/or maintain any market index, database, interface, mobile platform, or software program that the Customer publishes or distributes or commercially provides to third parties; (viii) decompile or reverse engineer any software relating to the Services; (ix) use the Services in any manner which competes against CB Insights.
e. AI-powered Functionality. Certain features of the Services may be powered by large language model(s) or other artificial intelligence algorithm(s) (“AI-powered Functionality”). Customer may provide input to the AI-powered Functionality through freeform text (“Input") or via selection of pre-determined sets of skills. The Services may generate responsive output based on the Input and skills selection (“Output”). Customer remains responsible for all Input provided to the Services, and Customer represents and warrants that it: (i) has all rights, licenses, and any other permissions necessary to provide the Input, and (ii) will not provide any Input that (x) is illegal, fraudulent, abusive, or harmful, (y) infringes the rights of privacy or publicity of any third party, or infringes, violates, or misappropriates any patent, copyright, trademark, or trade secret right of any third party, or (z) contains any Confidential Information or any information relating to an identified or identifiable natural person, including information that is protected as personal data, personal information, or personally identifiable information under applicable data protection law(s). Customer acknowledges that due to the nature of the Services and the rapidly evolving nature of artificial intelligence, Output may not be accurate and may from time to time include misleading results that appear accurate but are not, and Output may not be unique and other CB Insights customers may receive similar or even identical Output from the Services. As between Customer and CB Insights, CB Insights retains all rights, title, and interest in and to all Output; Customer may use Output in accordance with this MSA. Output may be customized based on Customer’s platform usage history (for example, saved searches); CB Insights continues to own all Output, but no such customized Output will be shared with other CB Insights customers. For the sake of clarity, Customer continues to own Customer Data, and CB Insights does not use Customer Data to train or teach any large language model or other artificial intelligence algorithm.
f. Links to Other Websites. Customer acknowledges and agrees that Users may, through hypertext or other computer links available in the Services, elect to gain access to websites operated by individuals or entities other than CB Insights. Such hyperlinks are provided for Customer’s and its Users’ reference and convenience only and are the exclusive responsibility of the owners of each such website. Customer agrees and acknowledges that CB Insights is not responsible for the content or operation of such websites, and that CB Insights shall have no liability to Customer, Users, or any other person or entity for the use of third-party websites. Customer and/or its Users are solely responsible for determining the extent to which Users may use any content at any other such websites. Additionally, Customer acknowledges and agrees that such websites may be subject to terms and conditions which may be different from this MSA and which will govern with respect to Users’ use of such websites.
g. Registration and User ID Security. Some of the Services require secure login through a unique username and password (collectively, “User ID”). If Users access the Services using secure User IDs, Customer agrees as follows (and shall compel its Users to agree) for purposes of initial registration and general User ID security: (i) as part of the registration process which may be necessary to obtain access to the Services, Customer shall provide certain truthful registration information to CB Insights (subject to all confidentiality obligations stated herein), with each registration being for a single User only; (ii) Users shall have access to the Services during the Subscription Term through the User ID, which may be used by Users to gain access to the Services only for so long as such Users are authorized to access and use the Services in accordance with the terms of this MSA or the applicable Order Form or Webpage Checkout; and (iii) Customer agrees to treat the User ID as confidential and, as to the Users, not to disclose or share such User ID, either directly or indirectly, to any person other than as directed by Customer or permitted by CB Insights in writing. Notwithstanding anything to the contrary stated herein, CB Insights shall not be liable to Customer or any third person or entity for any loss or damage directly arising from Customer’s failure to comply with these security requirements.
h. Monitoring; Compliance. Subject to any confidentiality obligations contained herein or in an applicable Order Form or Webpage Checkout, CB Insights reserves the right to monitor the use of the Services to ensure compliance with the terms of this MSA, including verifying the number of Customer’s Users, and to maintain and improve the provision of the Services. If CB Insights reasonably suspects non-compliance with the terms of this MSA by Customer or any of its Users, CB Insights reserves the right to suspend access to the Services until Customer remedies such non-compliance to CB Insights’ reasonable satisfaction.
i. Beta Releases. From time to time, CB Insights may offer Customer the opportunity to use certain experimental features within or versions of the Services that are made available on a trial basis (each a “Beta Release”). ALL BETA RELEASES ARE PROVIDED “AS IS,” WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR OBLIGATIONS OF ANY KIND. Use of any Beta Release is solely at Customer’s risk and, notwithstanding anything to the contrary, CB Insights will have no liability related to Customer’s use of any Beta Release. CB Insights may modify or remove any Beta Release at any time. Use of any Beta Release may be subject to additional terms and conditions.
2. Fees and Payment Terms
- Fees. Customer will pay CB Insights all Fees in accordance with this Section 2 and the applicable Order Form or Webpage Checkout. Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable and Fees paid are non-refundable unless this MSA or an applicable Order Form or Webpage checkout is terminated for cause by Customer pursuant to Section 8(c), in which case any prepaid, unearned Fees will be refunded in a prorated amount.
- Invoices and Payment. Customer shall pay Fees according to the terms of the applicable Order Form or Webpage Checkout. If Customer adds Users via the Services in excess of the number of licensed Users set forth in the applicable Order Form or Webpage Checkout, CB Insights reserves the right to invoice Customer for a true-up to the actual number of Users at a prorated amount of the annual rate stated in the applicable Order Form or Webpage Checkout; such additional Users shall be deemed Users under this MSA and for any renewals of the applicable Order Form or Webpage Checkout.
- Late Charges; Suspension. Overdue Fees shall accrue late interest charges at the rate of 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. Customer acknowledges that failure to timely pay Fees may result in loss of access to the Services.
- Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from CB Insights’ provision of the Services hereunder, except any taxes assessed upon CB Insights’ net income or payroll. If CB Insights is required to directly pay Taxes related to Customer’s use or receipt of any Services, Customer agrees to promptly reimburse CB Insights for any amounts paid by CB Insights.
3. Proprietary Rights
- Customer Data. As between Customer and CB Insights, Customer retains all rights, title, and interest in and to the Customer Data. Except as expressly set out in this MSA, no right, title, or license under any Customer Data is granted to CB Insights or implied hereby, and for any Customer Data that is licensed to CB Insights, no title or ownership rights are transferred with such license.
- License to CB Insights. Notwithstanding the foregoing, Customer hereby grants CB Insights a limited, non-exclusive, non- transferable (except in connection with the permitted assignment of this MSA), and royalty-free license under Customer IPR to access and use the Customer Data made available to CB Insights or any of its Affiliates, solely as necessary for CB Insights to provide the Services to Customer pursuant to this MSA.
- CB Insights Property. As between CB Insights and Customer, CB Insights retains all rights, title, and interest in and to the CB Insights Property, and except as expressly set out in this MSA, no right, title, or license under any CB Insights Property is granted to Customer or implied hereby. For avoidance of doubt, the granting of any license herein does not affect the ownership of any Licensed Materials, whether tangible or intangible, and, unless expressly stated otherwise in an Order Form or Webpage Checkout, none of the Licensed Materials accessed through the Services shall be considered “Works Made for Hire” as defined by the copyright laws of the United States.
- Feedback. If Customer provides CB Insights with any ideas, comments or suggestions relating to the Services or Licensed Materials (“Feedback”), CB Insights retains all rights in such Feedback, and anything created as a result (including new Licensed Materials or any derivative works) are owned solely by CB Insights. For avoidance of doubt, no of Customer IPR or Customer Confidential Information shall be considered Feedback.
4. Confidentiality and Data Security
- Confidentiality. During the term of this MSA and for a period of three (3) years thereafter, each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its Affiliates, officers, directors, employees, subcontractors, agents or prospective financing sources or acquirers who need to know such information in connection with this MSA and who are bound by written agreements requiring the protection of such Confidential Information.
- Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's expense, if the Disclosing Party wishes to contest the disclosure.
- Return of Confidential Information. At any time upon the request of the Disclosing Party, or in the event of termination of this MSA, the Receiving Party will return, or destroy as so directed by the Disclosing Party, all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form; provided, however, the Receiving Party shall not be required to return or destroy electronic copies that are automatically stored in accordance with Receiving Party’s generally applicable backup policies and which are not reasonably accessible by the Receiving Party (“Backup Media”). All Backup Media shall remain subject to the confidentiality obligations set forth herein, notwithstanding the expiration or termination of this MSA, so long as it remains undeleted.
- Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 4, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
- Customer Data Security. Except as provided otherwise herein, CB Insights agrees and acknowledges that it shall consider Customer Data to be Customer’s Confidential Information. Customer agrees and acknowledges that CB Insights may use Customer Data only for the purposes of providing, maintaining, and improving the Services to and for the Customer. Notwithstanding the foregoing, Customer agrees and acknowledges that CB Insights will treat Customer Data in accordance with the CB Insights Privacy Policy and Data Processing Addendum, each located at legal.cbinsights.com.
5. Warranties; Disclaimers
- Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this MSA. Customer warrants that it will not use the Services for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party. CB Insights warrants to Customer that during the applicable Subscription Term the Services purchased by Customer will substantially perform in all material respects with the applicable portions of the Documentation; provided however, that such warranty shall not apply to non-conformities, errors, or problems caused by acts within the control of Customer or any of its Representatives, or arising from Customer’s negligence or improper use of the Services, from unauthorized modifications made to the Services, from use of the Services in an unsupported manner, or from interoperability issues arising from devices or equipment or browsers used by Customer to access the Services, or that arises from Customer’s or any third party’s software or systems
- Disclaimer. THE LICENSED MATERIALS AVAILABLE THROUGH THE SERVICES HAVE BEEN GATHERED BY CB INSIGHTS FROM SOURCES BELIEVED BY CB INSIGHTS TO BE RELIABLE AND HAVE BEEN ARRANGED IN A WAY THAT CB INSIGHTS BELIEVES WILL INCREASE THE EASE OF ACCESS, USE, AND UTILITY OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS MSA, (1) NEITHER PARTY MAKES ANY ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO THE OTHER PARTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (2) EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND (3) CB INSIGHTS’ LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICES AGAIN. CUSTOMER AGREES AND ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. CB INSIGHTS DOES NOT REPRESENT OR WARRANT THAT: (I) THE SERVICES WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS; (II) THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM ITS USE WILL BE ACCURATE OR RELIABLE; OR (III) ALL DEFICIENCIES IN THE SERVICES CAN BE FOUND OR CORRECTED. CB INSIGHTS WILL NOT BE RESPONSIBLE FOR: (A) LOSS OF DATA THAT IS NOT DUE TO A BREACH OF THIS MSA BY CB INSIGHTS; (B) THE INABILITY OF CUSTOMER OR ANY USER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET.
- No Professional Advice. CUSTOMER AGREES AND ACKNOWLEDGES THAT NONE OF THE SERVICES OR PROVISION OF LICENSED MATERIALS CONSTITUTES PROFESSIONAL ADVICE, OPINION, OR RECOMMENDATION BY CB INSIGHTS. CB INSIGHTS DOES NOT CLAIM TO BE AND IS NOT A BROKER, DEALER OR INVESTMENT ADVISOR AND NOTHING HEREIN SHALL CONSTITUTE A SALE OR OFFER TO BUY, SELL, OR RECOMMEND ANY SECURITIES OR COMPANIES. CUSTOMER ACKNOWLEDGES THAT IT MAKES ITS OWN INVESTMENT DECISIONS BASED UPON ITS OWN DUE DILIGENCE, INVESTIGATION AND OTHER SPECIFIC INVESTMENT CRITERIA.
- Transcript Disclaimer. CB Insights has not undertaken to verify the accuracy of any information or data provided in any Transcript. Any statements, views or opinions contained in any Transcript do not represent the statements, views, or opinions of CB Insights. CB Insights expressly disclaims any responsibility or liability for the content of any Transcript or for any consequences that may arise from the use of or reliance on the information or data contained in any Transcript, to the fullest extent permitted by law.
6. Indemnification
- Indemnification by CB Insights. CB Insights will defend and pay Customer, its employees, directors and officers (the “Customer Indemnified Parties”) from and against any and all costs, damages and expenses, including reasonable attorneys’ fees (collectively, “Losses”), suffered or incurred by any Customer Indemnified Party, as a result of any claim brought by a third party (“Third Party Claim”) against a Customer Indemnified Party alleging that the use of the Services in accordance with the terms and conditions of this MSA infringes any patent, copyright, trademark or trade secret right of such third party (an “Infringement Claim”). Without limiting the foregoing, in the event that the Services or any part thereof is likely to, in CB Insights’ sole opinion, or do become the subject of an Infringement Claim, CB Insights may, at its option and expense: (i) procure for Customer the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non- infringing replacement for such item, (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the MSA and any outstanding Order Forms or Webpage Checkouts and refund to Customer Fees paid by Customer to CB Insights for the infringing items in an amount prorated to reflect the period of time between the date Customer was unable to use the Services due to such Infringement Claim and the remaining days in the current Subscription Term. CB Insights shall have no liability for any Infringement Claim arising from (1) Customer’s supply to CB Insights of any Customer Data; (2) use of the Services other than in accordance with the MSA or in combination with any software, hardware, network or system not supplied by CB Insights if the alleged infringement relates to such combination; (3) any modification or alteration of the Services (other than by CB Insights), if the alleged infringement arises in connection with such modification or alteration; or (4) Customer’s violation of applicable law or third party rights.
- Indemnification by Customer. Customer will defend and pay CB Insights, its employees, directors and officers (the “CB Insights Indemnified Parties”) from and against any and all Losses, suffered or incurred by any CB Insights Indemnified Party, arising from any Third Party Claim against any CB Insights Indemnified Party: (i) alleging that any Customer Data or Customer’s use of the Services beyond the license granted in this MSA (x) violates applicable law, (y) violates the rights of privacy or publicity of any third party, or (z) infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party, and/or (ii) of infringement or misappropriation excluded from CB Insights’ foregoing indemnity obligations under Section 6(a).
- Indemnification Conditions. The Parties’ obligations under this Section 6 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim subject to indemnification under this Section 6, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section 6 are subject to the limitations and exclusions set forth in Section 7 below, and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable Third Party Claim.
7. Limitation of Liability
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS MSA, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE (THE “LIABILITY CAP”), EXCEPT THAT: (I) LIABILITY ARISING OUT OF A BREACH OF THE OBLIGATIONS IN SECTION 4 (CONFIDENTIALITY AND DATA SECURITY) WILL INSTEAD BE LIMITED TO THE HIGHER LIMIT OF THREE TIMES (3X) THE LIABILITY CAP; AND (II) CUSTOMER’S BREACH OF SECTION 1(d) AND THE GROSS NEGLIGENCE AND WILLFUL MISCONDUCT OF EITHER PARTY WILL NOT BE LIMITED BY THE LIABILITY CAP. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS MSA FAIL OF THEIR ESSENTIAL PURPOSE.
- Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THIS MSA.
8. Term and Termination
- Term of MSA. This MSA commences on the Effective Date and shall remain in effect until terminated in accordance with Section 8(c).
- Term of Subscriptions. Customer’s access to the purchased Services shall commence on the start date specified in the relevant Order Form or Webpage Checkout and continue for the Subscription Term specified on such Order Form or Webpage Checkout. If Customer purchases access to the Services through CB Insights' website, Customer’s Subscription Term will automatically renew upon the last day of the then-current Term unless Customer opts out of such renewal at least thirty (30) days prior to such date.
- Termination. Either Party may terminate this MSA and/or any Order Form or Webpage Checkout by providing written notice to the other Party in the event (i) the other Party materially breaches any of its duties, obligations or responsibilities under this MSA and fails to cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach, or provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan; (ii) a receiver, trustee, administrator, or administrative receiver is appointed for the other Party or its property; (iii) the other Party makes an assignment for the benefit of creditors; (iv) any proceedings should be commenced against the other Party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings shall not be vacated or set aside within sixty (60) days from the date of commencement thereof; or (v) the other Party is liquidated or dissolved. In addition, a Party may terminate this MSA by providing written notice to the other Party if there are no Order Forms or Webpage Checkouts in effect for more than ninety (90) days, continuously. For avoidance of doubt, neither Party may terminate this MSA or any applicable Order Form or Webpage Checkout for convenience during the Subscription Term.
- Effect of Termination. Expiration or termination of one Order Form or Webpage Checkout shall not affect any other Order Forms or Webpage Checkouts. Upon termination of this MSA for any reason or termination of an Order Form or Webpage Checkout, Customer shall (and shall ensure that all Users provisioned access pursuant to the applicable Order Form shall) immediately cease accessing and using the Services and Licensed Materials, and Customer must promptly delete and destroy all copies of Licensed Materials stored on Customer systems or that is otherwise in Customer’s possession or under Customer’s control. Customer may, however, retain Licensed Materials in aggregate form that is included in Work Product, articles, blogs, or other content or materials, that were created in accordance with the terms of this MSA prior to the effective date of termination. Additionally, Customer may retain Licensed Materials which are required to be retained pursuant to regulatory or other data-retention policies. Customer is prohibited from using Licensed Materials after termination in any other manner. Upon request by CB Insights, Customer shall provide sworn certification in a form provided by CB Insights by a duly authorized officer of Customer that all Licensed Materials have been destroyed as required herein.
- Surviving Provisions. The following provisions shall survive the termination or expiration of this MSA for any reason and shall remain in effect after any such termination or expiration: Sections 1(d), 2, 3(a) and (c), 4, 7, 8(d) and (e), and 9. Termination or expiration of this MSA shall not affect any obligation accrued or arising prior to such termination or expiration.
9. Miscellaneous Provisions
- Relationship. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties and CB Insights will be considered an independent contractor when performing any Services hereunder.
- Customer Affiliates. An Affiliate or parent of Customer may also purchase Services subject to the terms of this MSA by executing Order Forms with CB Insights hereunder. By entering into an Order Form hereunder, the Affiliate agrees to be bound by the terms of this MSA as if it were an original party hereto.
- Entire Understanding. This MSA (including all Exhibits and Order Forms or Webpage Checkouts, all of which are incorporated herein by reference) constitutes the entire agreement between the Parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this MSA. To the extent of any conflict or inconsistency between the provisions in the body of this MSA and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Customer purchase order or in any other ordering documentation (excluding Order Forms) are hereby rejected; should Customer submit a purchase order or other ordering documentation to CB Insights (excluding Order Forms), such submission is deemed to be Customer’s acceptance of this MSA. Such terms will not be deemed incorporated into or form any part of this MSA, and all such terms or conditions are null and void.
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 1(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Modification; Waiver and Cumulative Remedies. Except for CB Insights’ modification or update of the Services, or any policies as necessary to comply with applicable law, rules, regulations, no modification of this MSA, and no waiver of any breach of this MSA or right under this MSA, is legally binding against the other Party unless in writing and signed or electronically accepted by both Parties. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
- Arbitration; Governing Law; Venue. The parties hereto agree that any dispute, claim or controversy arising out of or relating to this MSA or the breach, termination, enforcement, interpretation or validity hereof or thereof, including the determination of the scope or applicability of this MSA to arbitrate, shall be determined by final and binding arbitration in New York City, New York (except for an action for interim equitable relief otherwise permitted under this MSA and/or unless otherwise agreed by the Parties), before a sole arbitrator, in accordance with the laws of the State of New York for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and Procedures; provided, however, if the Parties mutually elect, the arbitration can be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures instead of its Comprehensive Arbitration Rules and Procedures. The arbitrator’s decision shall be reduced to writing, signed by the arbitrator, and mailed to each of the parties and their legal counsel. All decisions of the arbitrator shall be final, binding and conclusive on the parties. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a decision in accordance with applicable law in any court having jurisdiction thereof. The Parties will pay their own costs (including, without limitation, attorneys’ fees) and expenses in connection with such arbitration.
- Publicity. Any press release developed by a Party regarding this MSA shall be subject to the prior written consent of the other Party. CB Insights may identify Customer as a user of the Services by referencing Customer’s name and logo, provided that such reference is consistent with Customer’s generally applicable branding guidelines and that CB Insights will cease making such references after receiving written notice from Customer to do so.
- Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, CB Insights may assign this MSA in its entirety, together with all rights and obligations hereunder, without consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this MSA. Any attempt by a Party to assign its rights or obligations under this MSA in breach of this section shall be void and of no effect. Subject to the foregoing, this MSA shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
- Notices. All notices under this MSA shall be in writing and shall be delivered to the emails or addresses first set forth in the Order Form(s) or Webpage Checkout(s), as applicable. Either Party may change its address for notice by giving notice of such address change in the manner provided herein. All communications and notices to be made or given pursuant to this MSA shall be in the English language.
- Anti-Corruption. Customer acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any CB Insights employees, agent or representative in connection with this MSA, other than reasonable gifts and entertainment provided in the ordinary course of business. Customer will promptly notify CB Insights if it offers or receives any such improper payment or transfer in connection with this MSA.
- Severability. If any provision of this MSA is held by a court of competent jurisdiction to be contrary to law, 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 MSA shall remain in effect.
10. Definitions
- “Affiliate” of a Party means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity (and the correlative terms, “controlled by” and “under common control with”) means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.
- “CB Insights Property” means (i) the Services, (ii) all Licensed Materials supplied by CB Insights in connection with, or used by CB Insights in providing, any of the foregoing, and (iii) all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to any of the foregoing. For clarity, CB Insights Property includes any information, data, or other content derived from CB Insights’ authorized monitoring of any User’s access to or use of the Services but does not include Customer Data.
- “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed, including pricing and other terms set forth in an Order Form or Webpage Checkout. The CB Insights Property shall constitute CB Insights’ Confidential Information regardless of the means or manner by which it is disclosed. Customer Data shall constitute Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information that a Receiving Party can show: (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; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
- “Customer Data” means all data or information submitted, electronic or otherwise, by or on behalf of Customer to the Services and/or to CB Insights, including Input, and all patent, copyright, trade secret or other intellectual property rights embodied in or related to any of the foregoing (the “Customer IPR”).
- “Documentation” means all documentation and other instructional material, if applicable, made available by CB Insights regarding the use of the Services.
- “Fees” means all fees specified in or otherwise incurred pursuant to an Order Form or Webpage Checkout.
- “License” means a current and valid license to access or use the Services, and which may include, but is not limited to, purchased subscription to the Services for one or more Users, or any other valid and authorized right/license as permitted by CB Insights.
- “Licensed Materials” means all content and data and reports, including without limitation, metrics, calculations, text, research, ratings, rankings, opinions, photographs, video, audio, graphics, tools, analytics, functionality, Output, products and information displayed and/or otherwise provided by the Services.
- “Order Form” means an ordering document for Services purchased from CB Insights that has been executed hereunder by the Parties, or as the case may be, electronically accepted by the Customer, including without limitation any attached or associated statement of work.
- “Representatives” means with respect to any individual and/or the entity on whose behalf such individual is entering into a commercial agreement with CB Insights, all users, employees, agents, subcontractors and other representatives of such individual or entity (as applicable).
- “Services” means any of the paid or trial subscriptions to various online, web-based applications, software services, data feeds or data delivery materials, application programming interface (“API”), data downloads and plugins as well as certain standalone or recurring research services or reports, including Transcripts, provided by CB Insights directly or via certain websites owned and operated by CB Insights, as well as (i) the Licensed Materials contained therein, and (ii) any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.
- “Subscription Term” means the subscription period set forth in the applicable Order Form or Webpage Checkout during which CB Insights agrees to provide the Services to Customer.
- "Transcript" means a transcript of a scripted conversation with a third party, such as a software buyer or an investor (respectively, a “Buyer Transcript” or “Investor Transcript”), or a transcript of a company earnings call (an “Earnings Transcript”).
- “User” means a person directly employed by Customer who has an email address with Customer’s organization and is the recipient of the Services.
- "Webpage Checkout" means an ordering document for Services purchased through a self-service checkout process through CB Insights' website.
Effective September 20th 2023 to March 11th 2024
DownloadTable of Contents
MASTER SUBSCRIPTION AGREEMENT
This master subscription agreement, ("MSA") which may include any relevant ordering documents and exhibits (collectively, “Agreement”), is made by and between CB Information Services, Inc., a corporation validly existing under the laws of Delaware (“CB Insights”) and the specific person or entity identified as the licensee or customer or party thereto in the associated agreement, ordering document, or purchase order (“Customer” or “You”). Customer and CB Insights may be collectively referred to as the “Parties” or individually as a “Party.” This MSA governs Your purchase and use of the Services and Licensed Materials (as defined herein, respectively) and shall be effective as of the date electronically accepted or last signed, whichever the case may be (“Effective Date”). CB Insights may amend this MSA at any time by posting a revised version on legal.cbinsights.com. Each revised version will state its effective date, which will be on or after the date posted by CB Insights. If the revised version materially reduces Your rights under this MSA, CB Insights will send notice to the email address it has on file, and request acceptance of the materially changed version. Otherwise, Your continued use of the Services after the effective date of a non-materially revised version of this MSA constitutes your acceptance of the terms.
The Parties acknowledge that the terms 'Order Form' and 'Webpage Checkout', as defined below, refer to the specific applicable ordering document executed or accepted, as the case may be, by Customer. The term "or" when used between 'Order Form' and 'Webpage Checkout' shall not be interpreted to mutually exclude Your obligations, responsibilities, or liabilities if You purchase Services through both ordering documents.
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Services
- Provision of Services. Subject to the payment of all applicable Fees and for the applicable Subscription Term, CB Insights hereby grants to Customer a non-sublicensable, non-transferable (except as provided herein), non-exclusive right and limited license to use the Services and access the Licensed Materials, in accordance with the terms and conditions of this MSA and all Order Forms or Webpage Checkouts, as applicable. CB Insights reserves the right to revise or discontinue certain features or content of the Services if, in CB Insights’ sole discretion, such action is necessary for the provision of the Services or such features or content are minor and not disruptive to the overall use of the Services. Customer further agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by CB Insights regarding future functionality or features.
- Order Forms and Webpage Checkouts. Each Order Form and Webpage Checkout for Services will describe the License, as well as additional mutually agreed-upon limitations on use of the Services, including, to the extent applicable, Fees, the Subscription Term, the number of permitted Users and the permitted scope of use of the Services. Only individuals employed by the contracting entity shall be designated to receive access to the Services. The rights granted in a License are granted only to Customer, and do not extend to Customer’s shareholders, parents, subsidiaries, or Affiliates, except for an Affiliate who is a party to an Order Form with CB Insights hereunder pursuant to Section 9(b) below. The number of individual Users that shall have access to the Services pursuant to a License is dependent upon the Services purchased as shown on the Order Form or Webpage Checkout (“User Limit”). Customers who purchase firm-wide access are not subject to User Limits (“Firm-wide Access”). For Services purchased through an Order Form, Customer may occasionally switch Users under a License, provided that the number of Users does not exceed the User Limit noted on the Order Form. Violation of the restrictions set forth herein, which shall include sharing User accounts with any unauthorized individuals, will be considered a material breach by Customer.
- Authorized Use. Except as expressly stated otherwise herein or in an applicable Order Form or Webpage Checkout, Users may access the Services and use the Licensed Materials only for the Customer’s internal business activities and may store Licensed Materials on computers or devices or locations owned by or under its control (which may include commercial cloud storage). Users may also extract, quote, and/or distribute limited selections of Licensed Materials in work product for distribution throughout Customer’s organizations to support any of Customer’s businesses (“Work Product”). From time to time, Customer and its Users may also excerpt and distribute limited, insubstantial portions of Licensed Materials (in electronic form or hard copies) to third parties to support any of Customer’s businesses, provided that any publicly available Licensed Materials shall be conspicuously attributed to CB Insights, using the phrase, “SOURCE: CB INSIGHTS” or such other similar language. For clarity, long form research (available within research portal of platform, “Research”) is for User access only; Users may share excerpts of Research in accordance with this MSA. Notwithstanding any of the foregoing, to the extent Customer receives any Licensed Materials through a CB Insights API or other direct data feed, Customer agrees it may only use such retrieved Licensed Materials for internal purposes and may not distribute such received Licensed Materials to any third parties.
- Limitations. Customer shall not, and shall cause its Users to not: (i) distribute Licensed Materials to a third-party in any quantity or manner that would serve as a substitute for the purchase of a subscription to the Services or Licensed Materials by the recipient; (ii) input, upload, or otherwise use the Licensed Materials to train or teach any large language model or other artificial intelligence algorithm; (iii) scrape, strip, or mine the Services, including through introduction of software or automated agents such as a bot or webcrawler; (iv) work around any technical limitations CB Insights imposes, or attempt to otherwise disrupt the operation of the Services; (v) use the Services in a manner contrary to or in violation of any applicable laws; (vi) use the Services in any manner except as expressly permitted in this MSA; (vii) market, sell, license, or commercially distribute the Services to third parties or use as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using the Licensed Materials as a primary source to create and/or maintain any market index, database, interface, mobile platform, or software program that the Customer publishes or distributes or commercially provides to third parties; (viii) decompile or reverse engineer any software relating to the Services; or (ix) use the Services in any manner which competes against CB Insights.
- Links to Other Websites. Customer acknowledges and agrees that Users may, through hypertext or other computer links available in the Services, elect to gain access to websites operated by individuals or entities other than CB Insights. Such hyperlinks are provided for Customer’s and its Users’ reference and convenience only and are the exclusive responsibility of the owners of each such website. Customer agrees and acknowledges that CB Insights is not responsible for the content or operation of such websites, and that CB Insights shall have no liability to Customer, Users, or any other person or entity for the use of third-party websites. Customer and/or its Users are solely responsible for determining the extent to which Users may use any content at any other such websites. Additionally, Customer acknowledges and agrees that such websites may be subject to terms and conditions which may be different from this MSA and which will govern with respect to Users’ use of such websites.
- Registration and User ID Security. Some of the Services require secure login through a unique username and password (collectively, “User ID”). If Users access the Services using secure User IDs, Customer agrees as follows (and shall compel its Users to agree) for purposes of initial registration and general User ID security: (i) as part of the registration process which may be necessary to obtain access to the Services, Customer shall provide certain truthful registration information to CB Insights (subject to all confidentiality obligations stated herein), with each registration being for a single User only; (ii) Users shall have access to the Services during the Subscription Term through the User ID, which may be used by Users to gain access to the Services only for so long as such Users are authorized to access and use the Services in accordance with the terms of this MSA or the applicable Order Form or Webpage Checkout; and (iii) Customer agrees to treat the User ID as confidential and, as to the Users, not to disclose or share such User ID, either directly or indirectly, to any person other than as directed by Customer or permitted by CB Insights in writing. Notwithstanding anything to the contrary stated herein, CB Insights shall not be liable to Customer or any third person or entity for any loss or damage directly arising from Customer’s failure to comply with these security requirements.
- Monitoring; Compliance. Subject to any confidentiality obligations contained herein or in an applicable Order Form or Webpage Checkout, CB Insights reserves the right to monitor the use of the Services to ensure compliance with the terms of this MSA, including verifying the number of Customer’s Users, and to maintain and improve the provision of the Services. If CB Insights reasonably suspects non-compliance with the terms of this MSA by Customer or any of its Users, CB Insights reserves the right to suspend access to the Services until Customer remedies such non-compliance to CB Insights’ reasonable satisfaction.
2. Fees and Payment Terms
- Fees. Customer will pay CB Insights all Fees in accordance with this Section 2 and the applicable Order Form or Webpage Checkout. Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable and Fees paid are non-refundable unless this MSA or an applicable Order Form or Webpage checkout is terminated for cause by Customer pursuant to Section 8(c), in which case any prepaid, unearned Fees will be refunded in a prorated amount.
- Invoices and Payment. Customer shall pay Fees according to the terms of the applicable Order Form or Webpage Checkout. If Customer adds Users via the Services in excess of the number of licensed Users set forth in the applicable Order Form or Webpage Checkout, CB Insights reserves the right to invoice Customer for a true-up to the actual number of Users at a prorated amount of the annual rate stated in the applicable Order Form or Webpage Checkout; such additional Users shall be deemed Users under this MSA and for any renewals of the applicable Order Form or Webpage Checkout.
- Late Charges; Suspension. Overdue Fees shall accrue late interest charges at the rate of 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. Customer acknowledges that failure to timely pay Fees may result in loss of access to the Services.
- Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from CB Insights’ provision of the Services hereunder, except any taxes assessed upon CB Insights’ net income or payroll. If CB Insights is required to directly pay Taxes related to Customer’s use or receipt of any Services, Customer agrees to promptly reimburse CB Insights for any amounts paid by CB Insights.
3. Proprietary Rights
- Customer Data. As between Customer and CB Insights, Customer retains all rights, title, and interest in and to the Customer Data. Except as expressly set out in this MSA, no right, title, or license under any Customer Data is granted to CB Insights or implied hereby, and for any Customer Data that is licensed to CB Insights, no title or ownership rights are transferred with such license.
- License to CB Insights. Notwithstanding the foregoing, Customer hereby grants CB Insights a limited, non-exclusive, non- transferable (except in connection with the permitted assignment of this MSA), and royalty-free license under Customer IPR to access and use the Customer Data made available to CB Insights or any of its Affiliates, solely as necessary for CB Insights to provide the Services to Customer pursuant to this MSA.
- CB Insights Property. As between CB Insights and Customer, CB Insights retains all rights, title, and interest in and to the CB Insights Property, and except as expressly set out in this MSA, no right, title, or license under any CB Insights Property is granted to Customer or implied hereby. For avoidance of doubt, the granting of any license herein does not affect the ownership of any Licensed Materials, whether tangible or intangible, and, unless expressly stated otherwise in an Order Form or Webpage Checkout, none of the Licensed Materials accessed through the Services shall be considered “Works Made for Hire” as defined by the copyright laws of the United States.
4. Confidentiality and Data Security
- Confidentiality. During the term of this MSA and for a period of three (3) years thereafter, each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its Affiliates, officers, directors, employees, subcontractors, agents or prospective financing sources or acquirers who need to know such information in connection with this MSA and who are bound by written agreements requiring the protection of such Confidential Information.
- Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's expense, if the Disclosing Party wishes to contest the disclosure.
- Return of Confidential Information. At any time upon the request of the Disclosing Party, or in the event of termination of this MSA, the Receiving Party will return, or destroy as so directed by the Disclosing Party, all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form; provided, however, the Receiving Party shall not be required to return or destroy electronic copies that are automatically stored in accordance with Receiving Party’s generally applicable backup policies and which are not reasonably accessible by the Receiving Party (“Backup Media”). All Backup Media shall remain subject to the confidentiality obligations set forth herein, notwithstanding the expiration or termination of this MSA, so long as it remains undeleted.
- Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 4, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
- Customer Data Security. Except as provided otherwise herein, CB Insights agrees and acknowledges that it shall consider Customer Data to be Customer’s Confidential Information. Customer agrees and acknowledges that CB Insights may use Customer Data only for the purposes of providing, maintaining, and improving the Services to and for the Customer. Notwithstanding the foregoing, Customer agrees and acknowledges that CB Insights will treat Customer Data in accordance with the CB Insights Data Processing Addendum located at: legal.cbinsights.com.
5. Warranties; Disclaimers
- Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this MSA. Customer warrants that it will not use the Services for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party. CB Insights warrants to Customer that during the applicable Subscription Term the Services purchased by Customer will substantially perform in all material respects with the applicable portions of the Documentation; provided however, that such warranty shall not apply to non-conformities, errors, or problems caused by acts within the control of Customer or any of its Representatives, or arising from Customer’s negligence or improper use of the Services, from unauthorized modifications made to the Services, from use of the Services in an unsupported manner, or from interoperability issues arising from devices or equipment or browsers used by Customer to access the Services, or that arises from Customer’s or any third party’s software or systems
- Disclaimer. THE LICENSED MATERIALS AVAILABLE THROUGH THE SERVICES HAVE BEEN GATHERED BY CB INSIGHTS FROM SOURCES BELIEVED BY CB INSIGHTS TO BE RELIABLE AND HAVE BEEN ARRANGED IN A WAY THAT CB INSIGHTS BELIEVES WILL INCREASE THE EASE OF ACCESS, USE, AND UTILITY OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS MSA, (1) NEITHER PARTY MAKES ANY ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO THE OTHER PARTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (2) EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND (3) CB INSIGHTS LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICES AGAIN. CUSTOMER AGREES AND ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. CB INSIGHTS DOES NOT REPRESENT OR WARRANT THAT: (I) THE SERVICES WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS; (II) THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM ITS USE WILL BE ACCURATE OR RELIABLE; OR (III) ALL DEFICIENCIES IN THE SERVICES CAN BE FOUND OR CORRECTED. CB INSIGHTS WILL NOT BE RESPONSIBLE FOR: (A) LOSS OF DATA THAT IS NOT DUE TO A BREACH OF THIS MSA BY CB INSIGHTS; (B) THE INABILITY OF CUSTOMER OR ANY USER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET.
- No Professional Advice. CUSTOMER AGREES AND ACKNOWLEDGES THAT NONE OF THE SERVICES OR PROVISION OF LICENSED MATERIALS CONSTITUTES PROFESSIONAL ADVICE, OPINION, OR RECOMMENDATION BY CB INSIGHTS. CB INSIGHTS DOES NOT CLAIM TO BE AND IS NOT A BROKER, DEALER OR INVESTMENT ADVISOR AND NOTHING HEREIN SHALL CONSTITUTE A SALE OR OFFER TO BUY, SELL, OR RECOMMEND ANY SECURITIES OR COMPANIES. CUSTOMER ACKNOWLEDGES THAT IT MAKES ITS OWN INVESTMENT DECISIONS BASED UPON ITS OWN DUE DILIGENCE, INVESTIGATION AND OTHER SPECIFIC INVESTMENT CRITERIA.
6. Indemnification
- Indemnification by CB Insights. CB Insights will defend and pay Customer, its employees, directors and officers (the “Customer Indemnified Parties”) from and against any and all costs, damages and expenses, including reasonable attorneys’ fees (collectively, “Losses”), suffered or incurred by any Customer Indemnified Party, as a result of any claim brought by a third party (“Third Party Claim”) against a Customer Indemnified Party alleging that the use of the Services in accordance with the terms and conditions of this MSA infringes any patent, copyright, trademark or trade secret right of such third party (an “Infringement Claim”). Without limiting the foregoing, in the event that the Services or any part thereof is likely to, in CB Insights’ sole opinion, or do become the subject of an Infringement Claim, CB Insights may, at its option and expense: (i) procure for Customer the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non- infringing replacement for such item, (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the MSA and any outstanding Order Forms or Webpage Checkouts and refund to Customer Fees paid by Customer to CB Insights for the infringing items in an amount prorated to reflect the period of time between the date Customer was unable to use the Services due to such Infringement Claim and the remaining days in the current Subscription Term. CB Insights shall have no liability for any Infringement Claim arising from (1) Customer’s use or supply to CB Insights of any Customer Data; (2) use of the Services other than in accordance with the MSA or in combination with any software, hardware, network or system not supplied by CB Insights if the alleged infringement relates to such combination; (3) any modification or alteration of the Services (other than by CB Insights), if the alleged infringement arises in connection with such modification or alteration; or (4) Customer’s violation of applicable law or third party rights.
- Indemnification by Customer. Customer will defend and pay CB Insights, its employees, directors and officers (the “CB Insights Indemnified Parties”) from and against any and all Losses, suffered or incurred by any CB Insights Indemnified Party, arising from any Third Party Claim against any CB Insights Indemnified Party : (i) alleging that any Customer Data or Customer’s use of the Services beyond the license granted in this MSA violates the rights of privacy or publicity of any third party, or infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party, and/or (ii) of infringement or misappropriation excluded from CB Insights’ foregoing indemnity obligations under Section 6(a).
- Indemnification Conditions. The Parties’ obligations under this Section 6 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim subject to indemnification under this Section 6, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section 6 are subject to the limitations and exclusions set forth in Section 7 below, and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable Third Party Claim.
7. Limitation of Liability
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS MSA, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE (THE “LIABILITY CAP”), EXCEPT THAT: (I) LIABILITY ARISING OUT OF A BREACH OF THE OBLIGATIONS IN SECTION 4 (CONFIDENTIALITY AND DATA SECURITY) WILL INSTEAD BE LIMITED TO THE HIGHER LIMIT OF THREE TIMES (3X) THE LIABILITY CAP; AND (II) CUSTOMER’S BREACH OF SECTION 1(d) AND THE GROSS NEGLIGENCE AND WILLFUL MISCONDUCT OF EITHER PARTY WILL NOT BE LIMITED BY THE LIABILITY CAP. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS MSA FAIL OF THEIR ESSENTIAL PURPOSE.
- Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THIS MSA.
8. Term and Termination
- Term of MSA. This MSA commences on the Effective Date and shall remain in effect until terminated in accordance with Section 8(c).
- Term of Subscriptions. Customer’s access to the purchased Services shall commence on the start date specified in the relevant Order Form or Webpage Checkout and continue for the Subscription Term specified on such Order Form or Webpage Checkout. If Customer purchases access to the Services through CB Insights' website, Customer’s Subscription Term will automatically renew upon the last day of the then-current Term unless Customer opts out of such renewal at least thirty (30) days prior to such date.
- Termination. Either Party may terminate this MSA and/or any Order Form or Webpage Checkout by providing written notice to the other Party in the event (i) the other Party materially breaches any of its duties, obligations or responsibilities under this MSA and fails to cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach, or provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan; (ii) a receiver, trustee, administrator, or administrative receiver is appointed for the other Party or its property; (iii) the other Party makes an assignment for the benefit of creditors; (iv) any proceedings should be commenced against the other Party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings shall not be vacated or set aside within sixty (60) days from the date of commencement thereof; or (v) the other Party is liquidated or dissolved. In addition, a Party may terminate this MSA by providing written notice to the other Party if there are no Order Forms or Webpage Checkouts in effect for more than ninety (90) days, continuously. For avoidance of doubt, neither Party may terminate this MSA or any applicable Order Form or Webpage Checkout for convenience during the Subscription Term.
- Effect of Termination. Expiration or termination of one Order Form or Webpage Checkout shall not affect any other Order Forms or Webpage Checkouts. Upon termination of this MSA for any reason or termination of an Order Form or Webpage Checkout, Customer shall (and shall ensure that all Users provisioned access pursuant to the applicable Order Form shall) immediately cease accessing and using the Services and Licensed Materials, and Customer must delete and destroy all copies of Licensed Materials stored on Customer systems or that is otherwise in Customer’s possession or under Customer’s control. Customer may, however, retain Licensed Materials in aggregate form that is included in Work Product, articles, blogs, or other content or materials, that were created in accordance with the terms of this MSA prior to the effective date of termination. Additionally, Customer may retain Licensed Materials which are required to be retained pursuant to regulatory or other data-retention policies.
- Surviving Provisions. The following provisions shall survive the termination or expiration of this MSA for any reason and shall remain in effect after any such termination or expiration: Sections 1(d), 2, 3(a) and (c), 4, 7, 8(d) and (e), and 9. Termination or expiration of this MSA shall not affect any obligation accrued or arising prior to such termination or expiration.
9. Miscellaneous Provisions
- Relationship. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties and CB Insights will be considered an independent contractor when performing any Services hereunder.
- Customer Affiliates. An Affiliate or parent of Customer may also purchase Services subject to the terms of this MSA by executing Order Forms with CB Insights hereunder. By entering into an Order Form hereunder, the Affiliate agrees to be bound by the terms of this MSA as if it were an original party hereto.
- Entire Understanding. This MSA (including all Exhibits and Order Forms or Webpage Checkouts, all of which are incorporated herein by reference) constitutes the entire agreement between the Parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this MSA. To the extent of any conflict or inconsistency between the provisions in the body of this MSA and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Customer purchase order or in any other ordering documentation (excluding Order Forms) are hereby rejected. Such terms will not be deemed incorporated into or form any part of this MSA, and all such terms or conditions are null and void.
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 1(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Modification; Waiver and Cumulative Remedies. Except for CB Insights’ modification or update of the Services, or any policies as necessary to comply with applicable law, rules, regulations, no modification of this MSA, and no waiver of any breach of this MSA or right under this MSA, is legally binding against the other Party unless in writing and signed or electronically accepted by both Parties. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
- Arbitration; Governing Law; Venue. The parties hereto agree that any dispute, claim or controversy arising out of or relating to this MSA or the breach, termination, enforcement, interpretation or validity hereof or thereof, including the determination of the scope or applicability of this MSA to arbitrate, shall be determined by final and binding arbitration in New York City, New York (except for an action for interim equitable relief otherwise permitted under this MSA and/or unless otherwise agreed by the Parties), before a sole arbitrator, in accordance with the laws of the State of New York for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and Procedures; provided, however, if the Parties mutually elect, the arbitration can be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures instead of its Comprehensive Arbitration Rules and Procedures. The arbitrator’s decision shall be reduced to writing, signed by the arbitrator, and mailed to each of the parties and their legal counsel. All decisions of the arbitrator shall be final, binding and conclusive on the parties. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a decision in accordance with applicable law in any court having jurisdiction thereof. The Parties will pay their own costs (including, without limitation, attorneys’ fees) and expenses in connection with such arbitration.
- Publicity. Any press release developed by a Party regarding this MSA shall be subject to the prior written consent of the other Party. CB Insights may identify Customer as a user of the Services by referencing Customer’s name and logo, provided that such reference is consistent with Customer’s generally applicable branding guidelines and that CB Insights will cease making such references after receiving written notice from Customer to do so.
- Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, CB Insights may assign this MSA in its entirety, together with all rights and obligations hereunder, without consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this MSA. Any attempt by a Party to assign its rights or obligations under this MSA in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
- Notices. All notices under this MSA shall be in writing and shall be delivered to the emails or addresses first set forth in the Order Form(s) or Webpage Checkout(s), as applicable. Either Party may change its address for notice by giving notice of such address change in the manner provided herein. All communications and notices to be made or given pursuant to this MSA shall be in the English language.
- Anti-Corruption. Customer acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any CB Insights employees, agent or representative in connection with this MSA, other than reasonable gifts and entertainment provided in the ordinary course of business. Customer will promptly notify CB Insights if it offers or receives any such improper payment or transfer in connection with this MSA.
- Severability. If any provision of this MSA is held by a court of competent jurisdiction to be contrary to law, 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 MSA shall remain in effect.
10. Definitions.
- “Affiliate” of a Party means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity (and the correlative terms, “controlled by” and “under common control with”) means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.
- “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed, including pricing and other terms set forth in an Order Form or Webpage Checkout. The CB Insights Property shall constitute CB Insights’ Confidential Information regardless of the means or manner by which it is disclosed. Customer Data shall constitute Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information that a Receiving Party can show: (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; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
- “License” means a current and valid license to access or use the Services, and which may include, but is not limited to, purchased subscription to the Services for one or more Users, or any other valid and authorized right/license as permitted by CB Insights.
- “Licensed Materials” means all content and data and reports, including without limitation, metrics, calculations, text, research, ratings, rankings, opinions, photographs, video, audio, graphics, tools, analytics, functionality, products and information displayed and/or otherwise provided by the Services.
- “Customer Data” means, other than the Utilization Data, all data or information submitted, electronic or otherwise, by or on behalf of Customer to the Services and/or to CB Insights and all patent, copyright, trade secret or other intellectual property rights embodied in or related to any of the foregoing (the “Customer IPR”).
- “Documentation” means all documentation and other instructional material, if applicable, made available by CB Insights regarding the use of the Services.
- “Fees” means all fees specified in or otherwise incurred pursuant to an Order Form or Webpage Checkout.
- “CB Insights Property” means (i) the Services, (ii) all Licensed Materials supplied by CB Insights in connection with, or used by CB Insights in providing, any of the foregoing, and (iii) all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to any of the foregoing. For clarity, CB Insights Property includes Utilization Data and any information, data, or other content derived from CB Insights’ authorized monitoring of any User’s access to or use of the Services but does not include Customer Data.
- “Order Form” means an ordering document for Services purchased from CB Insights that has been executed hereunder by the Parties, or as the case may be, electronically accepted by the Customer, including without limitation any attached or associated statement of work.
- “Representatives” means with respect to any individual and/or the entity on whose behalf such individual is entering into a commercial agreement with CB Insights, all users, employees, agents, subcontractors and other representatives of such individual or entity (as applicable).
- “Services” means any of the paid or trial subscriptions to various online, web-based applications, software services, data feeds or data delivery materials, application programming interface (“API”), data downloads and plugins as well as certain standalone or recurring research services or reports provided by CB Insights directly or via certain websites owned and operated by CB Insights, as well as (i) the Licensed Materials contained therein, and (ii) any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.
- “Subscription Term” means the subscription period set forth in the applicable Order Form or Webpage Checkout during which CB Insights agrees to provide the Services to Customer.
- “User” means a person directly employed by Customer who has an email address with Customer’s organization and is the recipient of the Services.
- “Utilization Data” means data and information related to Customer’s use of the Services that is used by CB Insights in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
- "Webpage Checkout" means an ordering document for Services purchased through a self-service checkout process through CB Insights' website.
Exhibit A
Additional Yardstiq Terms of Service
- Definitions.
Yardstiq Transcript: Transcripts of Analyst-led conversations with Buyers. Conversations are generally interview-style wherein Analysts question Buyers about the purchase process or usage of a particular software product.
Analyst: The individual leading the conversation with a Buyer. Analysts ask Buyers structured and specific questions regarding the Buyer’s purchase process and/or use of a particular software product.
Buyer. The individual being interviewed by the Analyst. The Buyer may be a software buyer, end-user, or otherwise have specific insight into the purchasing process or usage of a software product or service.
Custom Transcript. A Yardstiq Transcript which does not already exist in the CB Insights platform.
Transcript Research. Includes Software Buyer’s Guides and Vendor Scorecards. Software Buyer’s Guides provide questions which Buyers ask when evaluating categories of software. Vendor Scorecards compare companies within a particular technology market.
- Content and Disclaimer. Yardstiq Transcripts reflect discussions conducted between Analysts and Buyers. CB Insights has not undertaken to verify the accuracy of any information or data provided in any Yardstiq Transcript. Any statements, views or opinions contained in any Yardstiq Transcript do not represent the statements, views, or opinions of CB Insights. CB Insights expressly disclaims any responsibility or liability for the content of any Yardstiq Transcript or for any consequences that may arise from the use of or reliance on the information or data contained in any Yardstiq Transcript to the fullest extent permitted by law.
- Custom Transcripts. Customer may request that CB Insights produce a specific Yardstiq Transcript that is not currently listed on CB Insights’ Yardstiq platform. Contents of the Custom Transcript shall be incorporated into the Yardstiq database and accessible by all Yardstiq customers. CB Insights reserves the right to refuse Custom Transcript requests at its sole discretion. In the event CB Insights cannot complete a Custom Transcript requested, Customer shall have any funds paid for the specific Custom Transcript returned.
- Limitations on Use. Customer may use and apply information from Transcripts for the purpose of internal business activities, but under no circumstances shall Customer be permitted to identify or quote Buyers or attribute insights or opinions to Buyers or CB Insights. Any written materials provided in connection to a Transcript or use of the Yardstiq Service may not be redistributed, disseminated, published, or displayed, in whole or in part, with any third parties without prior written permission of CB Insights.
Exhibit B
Additional API Terms of Service
Additional Terms (API)
- API - Internal Use Only. As to Licensed Materials accessed through the API, Customer may only use the Licensed Materials for the Customer's internal business activities.
- API - Limitation on LLM/AI Training. Customer may not input, upload, or otherwise use the Licensed Materials obtained via the API or Data Feed to train or teach any large language model or other artificial intelligence algorithm.
- API - Effects of Termination. Upon termination of this Order or failure to renew the same upon expiration, Customer shall immediately cease accessing and using the Licensed Materials accessed through the API and shall promptly destroy all Licensed Materials accessed through the API in Customer’s possession, except that Customer may retain copies of Licensed Materials as necessary for any data retention requirements. Notwithstanding the foregoing, Customer is prohibited from using the Licensed Materials accessed through the API after termination of this Order in any other manner. Upon request by CB Insights, Customer shall provide sworn certification in a form provided by CB Insights by a duly authorized officer of Customer that all Licensed Materials accessed through the API have been destroyed as required herein.
- Delivery Method for the Services.
Software: access provided via www.cbinsights.com; API
API: authentication is through JWT (JSON Web Tokens) via JSON web signature and JSON web encryption.
No Raw Data in Customer Commercial Databases/Platforms. For clarity, no raw data from either the Platform or Data Solutions (API and Data Feed) may be included in any of Customer's databases or systems that are accessible by Customer's clients or otherwise used as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using such raw data as a primary source to create and/or maintain any market index or database that Customer publishes or distributes to third parties.
Effective July 13th 2023 to September 20th 2023
DownloadTable of Contents
MASTER SUBSCRIPTION AGREEMENT
This master subscription agreement, ("MSA") which may include any relevant ordering documents and exhibits (collectively, “Agreement”), is made by and between CB Information Services, Inc., a corporation validly existing under the laws of Delaware (“CB Insights”) and the specific person or entity identified as the licensee or customer or party thereto in the associated agreement, ordering document, or purchase order (“Customer” or “You”). Customer and CB Insights may be collectively referred to as the “Parties” or individually as a “Party.” This MSA governs Your purchase and use of the Services and Licensed Materials (as defined herein, respectively) and shall be effective as of the date electronically accepted or last signed, whichever the case may be (“Effective Date”). CB Insights may amend this MSA at any time by posting a revised version on legal.cbinsights.com. Each revised version will state its effective date, which will be on or after the date posted by CB Insights. If the revised version materially reduces Your rights under this MSA, CB Insights will send notice to the email address it has on file, and request acceptance of the materially changed version. Otherwise, Your continued use of the Services after the effective date of a non-materially revised version of this MSA constitutes your acceptance of the terms.
The Parties acknowledge that the terms 'Order Form' and 'Webpage Checkout', as defined below, refer to the specific applicable ordering document executed or accepted, as the case may be, by Customer. The term "or" when used between 'Order Form' and 'Webpage Checkout' shall not be interpreted to mutually exclude Your obligations, responsibilities, or liabilities if You purchase Services through both ordering documents.
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Services
2. Fees and Payment Terms
3. Proprietary Rights
4. Confidentiality and Data Security
5. Warranties; Disclaimers
6. Indemnification
7. Limitation of Liability
8. Term and Termination
9. Miscellaneous Provisions
10. Definitions.
Exhibit A
Additional Yardstiq Terms of Service
Yardstiq Transcript: Transcripts of Analyst-led conversations with Buyers. Conversations are generally interview-style wherein Analysts question Buyers about the purchase process or usage of a particular software product.
Analyst: The individual leading the conversation with a Buyer. Analysts ask Buyers structured and specific questions regarding the Buyer’s purchase process and/or use of a particular software product.
Buyer. The individual being interviewed by the Analyst. The Buyer may be a software buyer, end-user, or otherwise have specific insight into the purchasing process or usage of a software product or service.
Custom Transcript. A Yardstiq Transcript which does not already exist in the CB Insights platform.
Transcript Research. Includes Software Buyer’s Guides and Vendor Scorecards. Software Buyer’s Guides provide questions which Buyers ask when evaluating categories of software. Vendor Scorecards compare companies within a particular technology market.
CB Insights reserves the right to refuse Custom Transcript requests at its sole discretion. In the event CB Insights cannot complete a Custom Transcript requested, Customer shall have any funds paid for the specific Custom Transcript returned.
Exhibit B
Additional API Terms of Service
Additional Terms (API)
- API - Internal Use Only. As to Licensed Materials accessed through the API, Customer may only use the Licensed Materials for the Customer's internal business activities.
- API - Limitation on LLM/AI Training. Customer may not input, upload, or otherwise use the Licensed Materials obtained via the API or Data Feed to train or teach any large language model or other artificial intelligence algorithm;
- API - Effects of Termination. Upon termination of this Order or failure to renew the same upon expiration, Customer shall immediately cease accessing and using the Licensed Materials accessed through the API and shall promptly destroy all Licensed Materials accessed through the API in Customer's possession, except that Customer may retain copies of Licensed Materials as necessary for any data retention requirements. Notwithstanding the foregoing, Customer is prohibited from using the Licensed Materials accessed through the API after termination of this Order in any other manner. Upon request by CB Insights, Customer shall provide sworn certification in a form provided by CB Insights by a duly authorized officer of Customer that all Licensed Materials accessed through the API have been destroyed as required herein.
- Delivery Method for the Services.
- Software: access provided via www.cbinsights.com; API
- API: authentication is through JWT (JSON Web Tokens) via JSON web signature and JSON web encryption.
No Raw Data in Customer Commercial Databases/Platforms. For clarity, no raw data from either the Platform or Data Solutions (API and Data Feed) may be included in any of Customer's databases or systems that are accessible by Customer's clients or otherwise used as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using such raw data as a primary source to create and/or maintain any market index or database that Customer publishes or distributes to third parties.
Effective June 1st 2023 to July 13th 2023
DownloadTable of Contents
MASTER SUBSCRIPTION AGREEMENT
This master subscription agreement, ("MSA") which may include any relevant ordering documents and exhibits (collectively, “Agreement”), is made by and between CB Information Services, Inc., a corporation validly existing under the laws of Delaware (“CB Insights”) and the specific person or entity identified as the licensee or customer or party thereto in the associated agreement, ordering document, or purchase order (“Customer” or “You”). Customer and CB Insights may be collectively referred to as the “Parties” or individually as a “Party.” This MSA governs Your purchase and use of the Services and Licensed Materials (as defined herein, respectively) and shall be effective as of the date electronically accepted or last signed, whichever the case may be (“Effective Date”). CB Insights may amend this MSA at any time by posting a revised version on legal.cbinsights.com. Each revised version will state its effective date, which will be on or after the date posted by CB Insights. If the revised version materially reduces Your rights under this MSA, CB Insights will send notice to the email address it has on file, and request acceptance of the materially changed version. Otherwise, Your continued use of the Services after the effective date of a non-materially revised version of this MSA constitutes your acceptance of the terms.
The Parties acknowledge that the terms 'Order Form' and 'Webpage Checkout', as defined below, refer to the specific applicable ordering document executed or accepted, as the case may be, by Customer. The term "or" when used between 'Order Form' and 'Webpage Checkout' shall not be interpreted to mutually exclude Your obligation's, responsibilities, or liabilities if You purchase Services through both ordering documents.
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Services
2. Fees and Payment Terms
3. Proprietary Rights
4. Confidentiality and Data Security
5. Warranties; Disclaimers
6. Indemnification
7. Limitation of Liability
8. Term and Termination
9. Miscellaneous Provisions
10. Definitions.
Exhibit A
Additional Yardstiq Terms of Service
Yardstiq Transcript: Transcripts of Analyst-led conversations with Buyers. Conversations are generally interview-style wherein Analysts question Buyers about the purchase process or usage of a particular software product.
Analyst: The individual leading the conversation with a Buyer. Analysts ask Buyers structured and specific questions regarding the Buyer’s purchase process and/or use of a particular software product.
Buyer. The individual being interviewed by the Analyst. The Buyer may be a software buyer, end-user, or otherwise have specific insight into the purchasing process or usage of a software product or service.
Custom Transcript. A Yardstiq Transcript which does not already exist in the CB Insights platform.
Transcript Research. Includes Software Buyer’s Guides and Vendor Scorecards. Software Buyer’s Guides provide questions which Buyers ask when evaluating categories of software. Vendor Scorecards compare companies within a particular technology market.
CB Insights reserves the right to refuse Custom Transcript requests at its sole discretion. In the event CB Insights cannot complete a Custom Transcript requested, Customer shall have any funds paid for the specific Custom Transcript returned.
Exhibit B
Additional API Terms of Service
Additional Terms (API)
- API (Internal Use Only). As to Licensed Materials accessed through the API, Customer may only use the Licensed Materials for the Customer's internal business activities.
- Customer may not input, upload, or otherwise use the Licensed Materials obtained via the API or Data Feed to train or teach any large language model or other artificial intelligence algorithm;
- API (Effects of Termination). Upon termination of this Order or failure to renew the same upon expiration, Customer shall immediately cease accessing and using the Licensed Materials accessed through the API and shall promptly destroy all Licensed Materials accessed through the API in Customer's possession, except that Customer may retain copies of Licensed Materials as necessary for any data retention requirements. Notwithstanding the foregoing, Customer is prohibited from using the Licensed Materials accessed through the API after termination of this Order in any other manner. Upon request by CB Insights, Customer shall provide sworn certification in a form provided by CB Insights by a duly authorized officer of Customer that all Licensed Materials accessed through the API have been destroyed as required herein.
- Delivery Method for the Services. Software: access provided via www.cbinsights.com; API
API: Authentication is through JWT (JSON Web Tokens) via JSON web signature and JSON web encryption.
No Raw Data in Customer Commercial Databases/Platforms. For clarity, no raw data from either the Platform or Data Solutions (API and Data Feed) may be included in any of Customer's databases or systems that are accessible by Customer's clients or otherwise used as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using such raw data as a primary source to create and/or maintain any market index or database that Customer publishes or distributes to third parties.
Effective April 5th 2023 to June 1st 2023
DownloadTable of Contents
MASTER SUBSCRIPTION AGREEMENT
This master subscription agreement, ("MSA") which may include any relevant ordering documents and exhibits (collectively, “Agreement”), is made by and between CB Information Services, Inc., a corporation validly existing under the laws of Delaware (“CB Insights”) and the specific person or entity identified as the licensee or customer or party thereto in the associated agreement, ordering document, or purchase order (“Customer” or “You”). Customer and CB Insights may be collectively referred to as the “Parties” or individually as a “Party.” This MSA governs Your purchase and use of the Services and Licensed Materials (as defined herein, respectively) and shall be effective as of the date electronically accepted or last signed, whichever the case may be (“Effective Date”). CB Insights may amend this MSA at any time by posting a revised version on legal.cbinsights.com. Each revised version will state its effective date, which will be on or after the date posted by CB Insights. If the revised version materially reduces Your rights under this MSA, CB Insights will send notice to the email address it has on file, and request acceptance of the materially changed version. Otherwise, Your continued use of the Services after the effective date of a non-materially revised version of this MSA constitutes your acceptance of the terms.
The Parties acknowledge that the terms 'Order Form' and 'Webpage Checkout', as defined below, refer to the specific applicable ordering document executed or accepted, as the case may be, by Customer. The term "or" when used between 'Order Form' and 'Webpage Checkout' shall not be interpreted to mutually exclude Your obligation's, responsibilities, or liabilities if You purchase Services through both ordering documents.
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Services
2. Fees and Payment Terms
3. Proprietary Rights
4. Confidentiality and Data Security
5. Warranties; Disclaimers
6. Indemnification
7. Limitation of Liability
8. Term and Termination
9. Miscellaneous Provisions
10. Definitions.
Exhibit A
Additional Yardstiq Terms of Service
Yardstiq Transcript: Transcripts of Analyst-led conversations with Buyers. Conversations are generally interview-style wherein Analysts question Buyers about the purchase process or usage of a particular software product.
Analyst: The individual leading the conversation with a Buyer. Analysts ask Buyers structured and specific questions regarding the Buyer’s purchase process and/or use of a particular software product.
Buyer. The individual being interviewed by the Analyst. The Buyer may be a software buyer, end-user, or otherwise have specific insight into the purchasing process or usage of a software product or service.
Custom Transcript. A Yardstiq Transcript which does not already exist in the CB Insights platform.
Transcript Research. Includes Software Buyer’s Guides and Vendor Scorecards. Software Buyer’s Guides provide questions which Buyers ask when evaluating categories of software. Vendor Scorecards compare companies within a particular technology market.
CB Insights reserves the right to refuse Custom Transcript requests at its sole discretion. In the event CB Insights cannot complete a Custom Transcript requested, Customer shall have any funds paid for the specific Custom Transcript returned.
Exhibit B
Additional API Terms of Service
Additional Terms (API)
- API (Internal Use Only). As to Licensed Materials accessed through the API, Customer may only use the Licensed Materials for the Customer's internal business activities.
- API (Effects of Termination). Upon termination of this Order or failure to renew the same upon expiration, Customer shall immediately cease accessing and using the Licensed Materials accessed through the API and shall promptly destroy all Licensed Materials accessed through the API in Customer's possession, except that Customer may retain copies of Licensed Materials as necessary for any data retention requirements. Notwithstanding the foregoing, Customer is prohibited from using the Licensed Materials accessed through the API after termination of this Order in any other manner. Upon request by CB Insights, Customer shall provide sworn certification in a form provided by CB Insights by a duly authorized officer of Customer that all Licensed Materials accessed through the API have been destroyed as required herein.
- Delivery Method for the Services. Software: access provided via www.cbinsights.com; API
API: Authentication is through JWT (JSON Web Tokens) via JSON web signature and JSON web encryption.
No Raw Data in Customer Commercial Databases/Platforms. For clarity, no raw data from either the Platform or Data Solutions (API and Data Feed) may be included in any of Customer's databases or systems that are accessible by Customer's clients or otherwise used as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using such raw data as a primary source to create and/or maintain any market index or database that Customer publishes or distributes to third parties.
Effective April 3rd 2023 to April 5th 2023
DownloadTable of Contents
MASTER SUBSCRIPTION AGREEMENT
This master subscription agreement, ("MSA") which may include any relevant ordering documents and exhibits (collectively, “Agreement”), is made by and between CB Information Services, Inc., a corporation validly existing under the laws of Delaware (“CB Insights”) and the specific person or entity identified as the licensee or customer or party thereto in the associated agreement, ordering document, or purchase order (“Customer” or “You”). Customer and CB Insights may be collectively referred to as the “Parties” or individually as a “Party.” This MSA governs Your purchase and use of the Services and Licensed Materials (as defined herein, respectively) and shall be effective as of the date electronically accepted or last signed, whichever the case may be (“Effective Date”). CB Insights may amend this MSA at any time by posting a revised version on legal.cbinsights.com. Each revised version will state its effective date, which will be on or after the date posted by CB Insights. If the revised version materially reduces Your rights under this MSA, CB Insights will send notice to the email address it has on file, and request acceptance of the materially changed version. Otherwise, Your continued use of the Services after the effective date of a non-materially revised version of this MSA constitutes your acceptance of the terms.
The Parties acknowledge that the terms 'Order Form' and 'Webpage Checkout', as defined below, refer to the specific applicable ordering document executed or accepted, as the case may be, by Customer. The term "or" when used between 'Order Form' and 'Webpage Checkout' shall not be interpreted to mutually exclude Your obligation's, responsibilities, or liabilities if You purchase Services through both ordering documents.
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Services
2. Fees and Payment Terms
3. Proprietary Rights
4. Confidentiality and Data Security
5. Warranties; Disclaimers
6. Indemnification
7. Limitation of Liability
8. Term and Termination
9. Miscellaneous Provisions
10. Definitions.
Exhibit A
Additional Yardstiq Terms of Service
Yardstiq Transcript: Transcripts of Analyst-led conversations with Buyers. Conversations are generally interview-style wherein Analysts question Buyers about the purchase process or usage of a particular software product.
Analyst: The individual leading the conversation with a Buyer. Analysts ask Buyers structured and specific questions regarding the Buyer’s purchase process and/or use of a particular software product.
Buyer. The individual being interviewed by the Analyst. The Buyer may be a software buyer, end-user, or otherwise have specific insight into the purchasing process or usage of a software product or service.
Custom Transcript. A Yardstiq Transcript which does not already exist in the CB Insights platform.
Transcript Research. Includes Software Buyer’s Guides and Vendor Scorecards. Software Buyer’s Guides provide questions which Buyers ask when evaluating categories of software. Vendor Scorecards compare companies within a particular technology market.
CB Insights reserves the right to refuse Custom Transcript requests at its sole discretion. In the event CB Insights cannot complete a Custom Transcript requested, Customer shall have any funds paid for the specific Custom Transcript returned.
Exhibit B
Additional API Terms of Service
Additional Terms (API)
- API (Internal Use Only). As to Licensed Materials accessed through the API, Licensee may only use the Licensed Materials for the Licensee’s internal business activities.
- API (Effects of Termination). Upon termination of this Order or failure to renew the same upon expiration, Licensee shall immediately cease accessing and using the Licensed Materials accessed through the API and shall promptly destroy all Licensed Materials accessed through the API in Licensee’s possession, except that Licensee may retain copies of Licensed Materials as necessary for any data retention requirements. Notwithstanding the foregoing, Licensee is prohibited from using the Licensed Materials accessed through the API after termination of this Order in any other manner. Upon request by Licensor, Licensee shall provide sworn certification in a form provided by Licensor by a duly authorized officer of Licensee that all Licensed Materials accessed through the API have been destroyed as required herein.
- Delivery Method for the Services. Software: access provided via www.cbinsights.com; API
API: Authentication is through JWT (JSON Web Tokens) via JSON web signature and JSON web encryption.
No Raw Data in Licensee Commercial Databases/Platforms. For clarity, no raw data from either the Platform or Data Solutions (API and Data Feed) may be included in any of Licensee’s databases or systems that are accessible by Licensee’s clients or otherwise used as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using such raw data as a primary source to create and/or maintain any market index or database that Licensee publishes or distributes to third parties.
Effective April 3rd 2023 to April 3rd 2023
DownloadTable of Contents
MASTER SUBSCRIPTION AGREEMENT
This master subscription agreement, ("MSA") which may include any relevant ordering documents and exhibits (collectively, “Agreement”), is made by and between CB Information Services, Inc., a corporation validly existing under the laws of Delaware (“CB Insights”) and the specific person or entity identified as the licensee or customer or party thereto in the associated agreement, ordering document, or purchase order (“Customer” or “You”). Customer and CB Insights may be collectively referred to as the “Parties” or individually as a “Party.” This MSA governs Your purchase and use of the Services and Licensed Materials (as defined herein, respectively) and shall be effective as of the date electronically accepted or last signed, whichever the case may be (“Effective Date”). CB Insights may amend this MSA at any time by posting a revised version on legal.cbinsights.com. Each revised version will state its effective date, which will be on or after the date posted by CB Insights. If the revised version materially reduces Your rights under this MSA, CB Insights will send notice to the email address it has on file, and request acceptance of the materially changed version. Otherwise, Your continued use of the Services after the effective date of a non-materially revised version of this MSA constitutes your acceptance of the terms.
The Parties acknowledge that the terms 'Order Form' and 'Webpage Checkout', as defined below, refer to the specific applicable ordering document executed or accepted, as the case may be, by Customer. The term "or" when used between 'Order Form' and 'Webpage Checkout' shall not be interpreted to mutually exclude Your obligation's, responsibilities, or liabilities if You purchase Services through both ordering documents.
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Services
2. Fees and Payment Terms
3. Proprietary Rights
4. Confidentiality and Data Security
5. Warranties; Disclaimers
6. Indemnification
7. Limitation of Liability
8. Term and Termination
9. Miscellaneous Provisions
10. Definitions.
Exhibit A
Additional Yardstiq Terms of Service
Yardstiq Transcript: Transcripts of Analyst-led conversations with Buyers. Conversations are generally interview-style wherein Analysts question Buyers about the purchase process or usage of a particular software product.
Analyst: The individual leading the conversation with a Buyer. Analysts ask Buyers structured and specific questions regarding the Buyer’s purchase process and/or use of a particular software product.
Buyer. The individual being interviewed by the Analyst. The Buyer may be a software buyer, end-user, or otherwise have specific insight into the purchasing process or usage of a software product or service.
Custom Transcript. A Yardstiq Transcript which does not already exist in the CB Insights platform.
Transcript Research. Includes Software Buyer’s Guides and Vendor Scorecards. Software Buyer’s Guides provide questions which Buyers ask when evaluating categories of software. Vendor Scorecards compare companies within a particular technology market.
CB Insights reserves the right to refuse Custom Transcript requests at its sole discretion. In the event CB Insights cannot complete a Custom Transcript requested, Customer shall have any funds paid for the specific Custom Transcript returned.
Exhibit B
Additional API Terms of Service
Additional Terms (API)
- API (Internal Use Only). As to Licensed Materials accessed through the API, Licensee may only use the Licensed Materials for the Licensee’s internal business activities.
- API (Effects of Termination). Upon termination of this Order or failure to renew the same upon expiration, Licensee shall immediately cease accessing and using the Licensed Materials accessed through the API and shall promptly destroy all Licensed Materials accessed through the API in Licensee’s possession, except that Licensee may retain copies of Licensed Materials as necessary for any data retention requirements. Notwithstanding the foregoing, Licensee is prohibited from using the Licensed Materials accessed through the API after termination of this Order in any other manner. Upon request by Licensor, Licensee shall provide sworn certification in a form provided by Licensor by a duly authorized officer of Licensee that all Licensed Materials accessed through the API have been destroyed as required herein.
- Delivery Method for the Services. Software: access provided via www.cbinsights.com; API
API: Authentication is through JWT (JSON Web Tokens) via JSON web signature and JSON web encryption.
No Raw Data in Licensee Commercial Databases/Platforms. For clarity, no raw data from either the Platform or Data Solutions (API and Data Feed) may be included in any of Licensee’s databases or systems that are accessible by Licensee’s clients or otherwise used as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using such raw data as a primary source to create and/or maintain any market index or database that Licensee publishes or distributes to third parties.
Effective April 3rd 2023 to April 3rd 2023
DownloadTable of Contents
MASTER SUBSCRIPTION AGREEMENT
This master subscription agreement, ("MSA") which may include any relevant ordering documents and exhibits (collectively, “Agreement”), is made by and between CB Information Services, Inc., a corporation validly existing under the laws of Delaware (“CB Insights”) and the specific person or entity identified as the licensee or customer or party thereto in the associated agreement, ordering document, or purchase order (“Customer” or “You”). Customer and CB Insights may be collectively referred to as the “Parties” or individually as a “Party.” This MSA governs Your purchase and use of the Services and Licensed Materials (as defined herein, respectively) and shall be effective as of the date electronically accepted or last signed, whichever the case may be (“Effective Date”). CB Insights may amend this MSA at any time by posting a revised version on legal.cbinsights.com. Each revised version will state its effective date, which will be on or after the date posted by CB Insights. If the revised version materially reduces Your rights under this MSA, CB Insights will send notice to the email address it has on file, and request acceptance of the materially changed version. Otherwise, Your continued use of the Services after the effective date of a non-materially revised version of this MSA constitutes your acceptance of the terms.
The Parties acknowledge that the terms 'Order Form' and 'Webpage Checkout', as defined below, refer to the specific applicable ordering document executed or accepted, as the case may be, by Customer. The term "or" when used between 'Order Form' and 'Webpage Checkout' shall not be interpreted to mutually exclude Your obligation's, responsibilities, or liabilities if You purchase Services through both ordering documents.
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Services
- Provision of Services. Subject to the payment of all applicable Fees and for the applicable Subscription Term, CB Insights hereby grants to Customer a non-sublicensable, non-transferable (except as provided herein), non-exclusive right and limited license to use the Services and access the Licensed Materials, in accordance with the terms and conditions of this MSA and all Order Forms or Webpage Checkouts, as applicable. CB Insights reserves the right to revise or discontinue certain features or content of the Services if, in CB Insights sole discretion, such action is necessary for the provision of the Services or such features or content are minor and not disruptive to the overall use of the Services. Customer further agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by CB Insights regarding future functionality or features.
- Order Forms and Webpage Checkouts. Each Order Form and Webpage Checkout for Services will describe the License, as well as additional mutually agreed-upon limitations on use of the Services, including, to the extent applicable, Fees, the Subscription Term, the number of permitted Users and the permitted scope of use of the Services. Only individuals employed by the contracting entity shall be designated to receive access to the Services. The rights granted in a License are granted only to Customer, and do not extend to Customer’s shareholders, parents, subsidiaries, or Affiliates. The number of individual Users that shall have access to the Services pursuant to a License is dependent upon the Services purchased as shown on the Order Form or Webpage Checkout (“User Limit”). Customers who purchase firm-wide access are not subject to User Limits (“Firm-wide Access”). For Services purchased through an Order Form, Customer may occasionally switch Users under a License, provided that the number of Users does not exceed the User Limit noted on the Order Form. Violation of the restrictions set forth herein, which shall include sharing User accounts with any unauthorized individuals, will be considered a material breach by Customer.
- Authorized Use. Except as expressly stated otherwise herein or in an applicable Order Form or Webpage Checkout, Users may access the Services and use the Licensed Materials only for the Customer’s internal business activities and may store Licensed Materials on computers or devices or locations owned by or under its control (which may include commercial
cloud storage). Users may also extract, quote, and/or distribute limited selections of Licensed Materials in work product for distribution throughout Customer’s organizations to support any of Customer’s businesses (“Work Product”). From time to time, Customer and its Users may also excerpt and distribute limited, insubstantial portions of Licensed Materials (in electronic form or hard copies) to third parties to support any of Customer’s businesses, provided that any publicly available Licensed Materials shall be conspicuously attributed to CB Insights, using the phrase, “SOURCE: CB INSIGHTS” or such other similar language. Notwithstanding the foregoing, to the extent Customer receives any Licensed Materials through a CB Insights API or other direct data feed, Customer agrees it may only use such retrieved Licensed Materials for internal purposes and may not distribute such received Licensed Materials to any third parties.
- Limitations. Customer shall not, and shall cause its Users to not: (i) distribute Licensed Materials to a third-party in any quantity or manner that would serve as a substitute for the purchase of a subscription to the Services or Licensed Materials by the recipient; (ii) use the Services in a manner contrary to or in violation of any applicable laws or in any other manner except as expressly permitted in this MSA; (iii) market, sell, license, or commercially distribute the Services to third parties or use as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using the Licensed Materials as a primary source to create and/or maintain any market index, database, interface, mobile platform, or software program that the Customer publishes or distributes or commercially provides to third parties; (iv) decompile or reverse engineer any software relating to the Services; or (v) use the Services in any manner which competes against CB Insights.
- Links to Other Websites. Customer acknowledges and agrees that Users may, through hypertext or other computer links available in the Services, elect to gain access to websites operated by individuals or entities other than CB Insights. Such hyperlinks are provided for Customer’s and its Users’ reference and convenience only and are the exclusive responsibility of the owners of each such website. Customer agrees and acknowledges that CB Insights is not responsible for the content or operation of such websites, and that CB Insights shall have no liability to Customer, Users, or any other person or entity for the use of third-party websites. Customer and/or its Users are solely responsible for determining the extent to which Users may use any content at any other such websites. Additionally, Customer acknowledges and agrees that such websites may be subject to different terms and conditions which may be different from this MSA and which will govern with respect to Users’ use of such websites.
- Registration and User ID Security. Some of the Services require secure login through a unique username and password (collectively, “User ID”). If Users access the Services using secure User IDs, Customer agrees as follows (and shall compel its Users to agree) for purposes of initial registration and general User ID security: (i) as part of the registration process which may be necessary to obtain access to the Services, Customer shall provide certain truthful registration information to CB Insights (subject to all confidentiality obligations stated herein), with each registration being for a single User only; (ii) Users shall have access to the Services during the Subscription Term through the User ID, which may be used by Users to gain access to the Services only for so long as such Users are authorized to access and use the Services in accordance with the terms of this MSA or the applicable Order Form or Webpage Checkout; and (iii) Customer agrees to treat the User ID as confidential and, as to the Users, not to disclose or share such User ID, either directly or indirectly, to any person other than as directed by Customer or permitted by CB Insights in writing. Notwithstanding anything to the contrary stated herein, CB Insights shall not be liable to Customer or any third person or entity for any loss or damage directly arising from own Customer’s failure to comply with these security requirements. Subject to any confidentiality obligations contained herein or in an applicable Order Form or Webpage Checkout, CB Insights reserves the right to monitor the use of the Services solely to ensure compliance with the terms of this MSA and to maintain and improve the provision of the Services.
Fees and Payment Terms
- Fees. Customer will pay CB Insights all Fees in accordance with this Section 2 and the applicable Order Form or Webpage Checkout. Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable and Fees paid are non-refundable unless this MSA or an applicable Order Form or Webpage checkout, is terminated for cause pursuant to Section 8(c), in which case any prepaid, unearned Fees will be refunded in a prorated amount. Customer acknowledges that failure to timely pay invoiced Fees may result in loss of access to the Services.
- Invoices and Payment. Customer shall pay Fees according to the terms of the applicable Order Form or Webpage Checkout.
- Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from CB Insights provision of the Services hereunder, except any taxes assessed upon CB Insights’ net income or payroll. If CB Insights is required to directly pay Taxes related to Customer’s use or receipt of any Services, Customer agrees to promptly reimburse CB Insights for any amounts paid by CB Insights.
Proprietary Rights
- Customer Data. As between Customer and CB Insights, Customer retains all rights, title, and interest in and to the Customer Data. Except as expressly set out in this MSA, no right, title, or license under any Customer Data is granted to CB Insights or implied hereby, and for any Customer Data that is licensed to CB Insights, no title or ownership rights are transferred with such license.
- License to CB Insights. Notwithstanding the foregoing, Customer hereby grants CB Insights a limited, non-exclusive, non- transferable (except in connection with the permitted assignment of this MSA), and royalty-free license under Customer IPR to access and use the Customer Data made available to CB Insights or any of its Affiliates, solely as necessary for CB Insights to provide the Services to Customer pursuant to this MSA.
- CB Insights Property. As between CB Insights and Customer, CB Insights retains all rights, title, and interest in and to the CB Insights Property, and except as expressly set out in this MSA, no right, title, or license under any CB Insights Property is granted to Customer or implied hereby. For avoidance of doubt, the granting of any license herein does not affect the ownership of any Licensed Materials, whether tangible or intangible, and, unless expressly stated otherwise in an Order Form or Webpage Checkout, none of the Licensed Materials accessed through the Services shall be considered a “Works Made for Hire” as defined by the copyright laws of the United States.
Confidentiality and Data Security
- Confidentiality. During the term of this MSA and for a period of three (3) years thereafter, each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its Affiliates, officers, directors, employees, subcontractors, agents or prospective financing sources or acquirers who need to know such information in connection with this MSA and who are bound by written agreements requiring the protection of such Confidential Information.
- Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's expense, if the Disclosing Party wishes to contest the disclosure.
- Return of Confidential Information. At any time upon the request of the Disclosing Party, or in the event of termination of this MSA, the Receiving Party will return, or destroy as so directed by the Disclosing Party, all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form; provided, however, the Receiving Party shall not be required to return or destroy electronic copies that are automatically stored in accordance with Receiving Party’s generally applicable backup policies and which are not reasonably accessible by the Receiving Party (“Backup Media”). All Backup Media shall remain subject to the confidentiality obligations set forth herein, notwithstanding the expiration or termination of this MSA, so long as it remains undeleted.
- Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 4, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
- Customer Data Security. Except as provided otherwise herein, CB Insights agrees and acknowledges that it shall consider Customer Data to be Customer’s Confidential Information. Customer agrees and acknowledges that CB Insights may use Customer Data only for the purposes providing, maintaining, and improving the Services to and for the Customer. Notwithstanding the foregoing, Customer agrees and acknowledges that CB Insights will treat Customer Data in accordance with the CB Insights Data Processing Addendum located at: legal.cbinsights.com.
Warranties; Disclaimers
- Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this MSA. Customer warrants that it will not use the Services for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party. CB Insights warrants to Customer that during the applicable Subscription Term the Services purchased by Customer will substantially perform in all material respects with the applicable portions of the Documentation; provided however, that such warranty shall not apply to non-conformities, errors, or problems caused by acts within the control of Customer or any of its Representatives, or arising from Customer’s negligence or improper use of the Services, from unauthorized modifications made to the Services, from use of the Services in an unsupported manner, or from interoperability issues arising from devices or equipment or browsers used by Customer to access the Services, or that arises from Customer’s or any third party’s software or systems
- Disclaimer. THE LICENSED MATERIALS AVAILABLE THROUGH THE SERVICES HAVE BEEN GATHERED BY CB INSIGHTS FROM SOURCES BELIEVED BY CB INSIGHTS TO BE RELIABLE AND HAVE BEEN ARRANGED IN A WAY THAT CB INSIGHTS BELIEVES WILL INCREASE THE EASE OF ACCESS, USE, AND UTILITY OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS MSA, (1) NEITHER PARTY MAKES ANY ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO THE OTHER PARTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (2) EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND (3) CB INSIGHTS LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICES AGAIN. CUSTOMER AGREES AND ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. CB INSIGHTS DOES NOT REPRESENT OR WARRANT THAT: (I) THE SERVICES WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS; (II) THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM ITS USE WILL BE ACCURATE OR RELIABLE; OR (III) ALL DEFICIENCIES IN THE SERVICES CAN BE FOUND OR CORRECTED. CB INSIGHTS WILL NOT BE RESPONSIBLE FOR: (A) LOSS OF DATA THAT IS NOT DUE TO A BREACH OF THIS MSA BY CB INSIGHTS; (B) THE INABILITY OF CUSTOMER OR ANY USER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET
- No Professional Advice. CUSTOMER AGREES AND ACKNOWLEDGES THAT NONE OF THE SERVICES OR PROVISION OF LICENSED MATERIALS CONSTITUTES PROFESSIONAL ADVICE, OPINION, OR RECOMMENDATION BY CB INSIGHTS. CB INSIGHTS DOES NOT CLAIM TO BE AND IS NOT A BROKER, DEALER OR INVESTMENT ADVISOR AND NOTHING HEREIN SHALL CONSTITUTE A SALE OR OFFER TO BUY, SELL, OR RECOMMEND ANY SECURITIES OR COMPANIES. CUSTOMER ACKNOWLEDGES THAT IT MAKES ITS OWN INVESTMENT DECISIONS BASED UPON ITS OWN DUE DILIGENCE, INVESTIGATION AND OTHER SPECIFIC INVESTMENT CRITERIA.
Indemnification
- Indemnification by CB Insights. CB Insights will defend and pay Customer, its employees, directors and officers (the “Customer Indemnified Parties”) from and against any and all costs, damages and expenses, including reasonable attorneys’ fees (collectively, “Losses”), suffered or incurred by any Customer Indemnified Party, as a result of any claim brought by a third party (“Third Party Claim”) against a Customer Indemnified Party alleging that the use of the Services in accordance with the terms and conditions of this MSA infringes any patent, copyright, trademark or trade secret right of such third party
(an “Infringement Claim”). Without limiting the foregoing, in the event that the Services or any part thereof is likely to, in CB Insights’ sole opinion, or do become the subject of an Infringement Claim, CB Insights may, at its option and expense: (i) procure for Customer the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non- infringing replacement for such item, or (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the MSA and any outstanding Order Forms or Webpage Checkouts and refund to Customer Fees paid by Customer to CB Insights for the infringing items in an amount prorated to reflect the period of time between the date Customer was unable to use the Services due to such Infringement Claim and the remaining days in the current Subscription Term. CB Insights shall have no liability for any Infringement Claim arising from (1) Customer’s use or supply to CB Insights of any Customer Data; (2) use of the Services other than in accordance with the MSA or in combination with any software, hardware, network or system not supplied by CB Insights if the alleged infringement relates to such combination; (3) any modification or alteration of the Services (other than by CB Insights), if the alleged infringement arises in connection with such modification or alteration; or (4) Customer’s violation of applicable law or third party rights.
- Indemnification by Customer. Customer will defend and pay CB Insights, its employees, directors and officers (the “CB Insights Indemnified Parties”) from and against any and all Losses, suffered or incurred by any CB Insights Indemnified Party, arising from any Third Party Claim against an CB Insights Indemnified Party : (i) alleging that any Customer Data or Customer’s use of the Services beyond the license granted in this MSA violates the rights of privacy or publicity of any third party, or infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party, and/or (ii) of infringement or misappropriation excluded from CB Insights’ foregoing indemnity obligations under Section 6(a).
- Indemnification Conditions. The Parties’ obligations under this Section 6 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim subject to indemnification under this Section 6, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section 6 are subject to the limitations and exclusions set forth in Section 7 below, and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable Third Party Claim.
Limitation of Liability
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS MSA, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE (THE “LIABILITY CAP”), EXCEPT THAT: (I) LIABILITY ARISING OUT OF A BREACH OF THE OBLIGATIONS IN SECTION 4 (CONFIDENTIALITY AND DATA SECURITY) WILL INSTEAD BE LIMITED TO THE HIGHER LIMIT OF THREE TIMES (3X) THE LIABILITY CAP; AND (II) CUSTOMER’S BREACH OF SECTION 1(d) AND THE GROSS NEGLIGENCE AND WILLFUL MISCONDUCT OF EITHER PARTY WILL NOT BE LIMITED BY THE LIABILITY CAP. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS MSA FAIL OF THEIR ESSENTIAL PURPOSE.
- Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THIS MSA.
Term and Termination
- Term of MSA. This MSA commences on the Effective Date and shall remain in effect until terminated in accordance with Section 8(c).
- Term of Subscriptions. Customer’s access to the purchased Services shall commence on the start date specified in the relevant Order Form or Webpage Checkout and continue for the Subscription Term specified on such Order Form or Webpage Checkout. Pricing for any renewal term may increase by up to ten percent (10%) above the applicable pricing in the prior Subscription Term to the current per-unit list pricing. Except as expressly provided in an applicable Order Form, renewal of any promotional or one-time priced offerings may be priced at the certain list price in effect at the time of the applicable renewal. If Customer purchases access to the Services through CB Insights' website, Customer’s Subscription Term will automatically renew upon the last day of the then-current Term unless Customer opts out of such renewal at least thirty (30) days prior to such date.
- Termination. Either Party may terminate this MSA and/or any Order Form or Webpage Checkout by providing written notice to the other Party in the event (i) the other Party materially breaches any of its duties, obligations or responsibilities under this MSA and fails to cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach, or provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan; (ii) a receiver, trustee, administrator, or administrative receiver is appointed for the other Party or its property; (iii) the other Party makes an assignment for the benefit of creditors; (iv) any proceedings should be commenced against the other Party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings shall not be vacated or set aside within sixty (60) days from the date of commencement thereof; or (v) the other Party is liquidated or dissolved. In addition, a Party may terminate this MSA by providing written notice to the other Party if there are no Order Forms or Webpage Checkouts in effect for more than ninety (90) days, continuously. For avoidance of doubt, neither Party may terminate this MSA or any applicable Order Form or Webpage Checkout for convenience during the Subscription Term.
- Effect of Termination. Expiration or termination of one Order Form or Webpage Checkout shall not affect any other Order Forms or Webpage Checkouts. Upon termination of this MSA for any reason or termination of an Order Form or Webpage Checkout, Customer shall (and shall ensure that all Users provisioned access pursuant to the applicable Order Form shall) immediately cease accessing and using the Services and Licensed Materials, and Customer must delete and destroy all copies of Licensed Materials stored on Customer systems or that is otherwise in Customer’s possession or under Customer’s control. Customer may, however, retain Licensed Materials in aggregate form that is included in Work Product, articles, blogs, or other content or materials, that were created in accordance with the terms of this MSA prior to the effective date of termination. Additionally, Customer may retain Licensed Materials which are required to be retained pursuant to regulatory or other data-retention policies.
- Surviving Provisions. The following provisions shall survive the termination or expiration of this MSA for any reason and shall remain in effect after any such termination or expiration: Sections 1(d), 2, 3(a) and (c), 4, 7, 8(d) and (e), and 9. Termination or expiration of this MSA shall not affect any obligation accrued or arising prior to such termination or expiration.
Miscellaneous Provisions
- Relationship. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties and CB Insights will be considered an independent contractor when performing any Services hereunder.
- Customer Affiliates. An Affiliate or parent of Customer may also purchase Services subject to the terms of this MSA by executing Order Forms with CB Insights hereunder. By entering into an Order Form hereunder, the Affiliate agrees to be bound by the terms of this MSA as if it were an original party hereto.
- Entire Understanding. This MSA (including all Exhibits and Order Forms or Webpage Checkouts, all of which are incorporated herein by reference) constitutes the entire agreement between the Parties as to its subject matter, and
supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this MSA. To the extent of any conflict or inconsistency between the provisions in the body of this MSA and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Customer purchase order or in any other ordering documentation (excluding Order Forms) are hereby rejected. Such terms will not be deemed incorporated into or form any part of this MSA, and all such terms or conditions are null and void.
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 1(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Modification; Waiver and Cumulative Remedies. Except for CB Insights’ modification or update of the Services, or any policies as necessary to comply with applicable law, rules, regulations, no modification of this MSA, and no waiver of any breach of this MSA or right under this MSA, is legally binding against the other Party unless in writing and signed or electronically accepted by both Parties. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
- Arbitration; Governing Law; Venue. The parties hereto agree that any dispute, claim or controversy arising out of or relating to this MSA or the breach, termination, enforcement, interpretation or validity hereof or thereof, including the determination of the scope or applicability of this MSA to arbitrate, shall be determined by final and binding arbitration in New York City, New York (except for an action for interim equitable relief otherwise permitted under this MSA and/or unless otherwise agreed by the parties), before a sole arbitrator, in accordance with the laws of the State of New York for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and Procedures; provided, however, if the Parties mutually elect, the arbitration can be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures instead of its Comprehensive Arbitration Rules and Procedures. The arbitrator’s decision shall be reduced to writing, signed by the arbitrator, and mailed to each of the parties and their legal counsel. All decisions of the arbitrator shall be final, binding and conclusive on the parties. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a decision in accordance with applicable law in any court having jurisdiction thereof. The Parties will pay their own costs (including, without limitation, attorneys’ fees) and expenses in connection with such arbitration.
- Publicity. Any press release developed by a Party regarding this MSA shall be subject to the prior written consent of the other Party. CB Insights may identify Customer as a user of the Services by referencing Customer’s name and logo, provided that such reference is consistent with Customer’s generally applicable branding guidelines and that CB Insights will cease making such references after receiving written notice from Customer to do so.
- Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, CB Insights may assign this MSA in its entirety, together with all rights and obligations hereunder, without consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this MSA. Any attempt by a Party to assign its rights or obligations under this MSA in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
- Notices. All notices under this MSA shall be in writing and shall be delivered to the emails or addresses first set forth in the Order Form(s) or Webpage Checkout(s), as applicable. Either Party may change its address for notice by giving notice of such address change in the manner provided herein. All communications and notices to be made or given pursuant to
this MSA shall be in the English language.
- Anti-Corruption. Customer acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any CB Insights employees, agent or representative in connection with this MSA, other than reasonable gifts and entertainment provided in the ordinary course of business. Customer will promptly notify CB Insights if it offers or receives any such improper payment or transfer in connection with this MSA.
- Severability. If any provision of this MSA is held by a court of competent jurisdiction to be contrary to law, 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 MSA shall remain in effect
Definitions.
- “Affiliate” of a Party means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity (and the correlative terms, “controlled by” and “under common control with”) means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.
- “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed, including pricing and other terms set forth in an Order Form or Webpage Checkout. The CB Insights Property shall constitute CB Insights’ Confidential Information regardless of the means or manner by which it is disclosed. Customer Data shall constitute Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information that a Receiving Party can show: (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; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
- “License” means a current and valid license to access or use the Services, and which may include, but is not limited to, purchased subscription to the Services for one or more Users, or any other valid and authorized right/license as permitted by CB Insights.
- “Licensed Materials” means all content and data and reports, including without limitation, metrics, calculations, text, research, ratings, rankings, opinions, photographs, video, audio, graphics, tools, analytics, functionality, products and information displayed and/or otherwise provided by the Services.
- “Customer Data” means, other than the Utilization Data, all data or information submitted, electronic or otherwise, by or on behalf of Customer to the Services and/or to CB Insights and all patent, copyright, trade secret or other intellectual property rights embodied in or related to any of the foregoing (the “Customer IPR”).
- “Documentation” means all documentation and other instructional material, if applicable, made available by CB Insights regarding the use of the Services.
- “Fees” means all fees specified in or otherwise incurred pursuant to an Order Form or Webpage Checkout.
- “CB Insights Property” means (i) the Services, (ii) all Licensed Materials supplied by CB Insights in connection with, or used by CB Insights in providing, any of the foregoing, and (iii) all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to any of the foregoing. For clarity, CB Insights Property includes Utilization Data and any information, data, or other content derived from CB Insights’ authorized monitoring of any User’s access to or use of the
Services but does not include Customer Data.
- “Order Form” means an ordering document for Services purchased from CB Insights that has been executed hereunder by the Parties, or as the case may be, electronically accepted by the Customer, including without limitation any attached or associated statement of work.
- “Representatives” means with respect to any individual and/or the entity on whose behalf such individual is entering into a commercial agreement with CB Insights, all users, employees, agents, subcontractors and other representatives of such individual or entity (as applicable).
- “Services” means any of the paid or trial subscriptions to various online, web-based applications, software services, data feeds or data delivery materials, application programming interface (“API”), data downloads and plugins as well as certain standalone or recurring research services or reports provided by CB Insights directly or via certain websites owned and operated by CB Insights, as well as (i) the Licensed Materials contained therein, and (ii) any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.
- “Subscription Term” means the subscription period set forth in the applicable Order Form or Webpage Checkout during which CB Insights agrees to provide the Services to Customer.
- “User” means a person directly employed by Customer who has an email address with Customer’s organization and is the recipient of the Services.
- “Utilization Data” means data and information related to Customer’s use of the Services that is used by CB Insights in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
- "Webpage Checkout" means an ordering document for Services purchased through a self-service checkout process through CB Insights' website.
- Definitions.
Exhibit A
Additional Yardstiq Terms of Service
Yardstiq Transcript: Transcripts of Analyst-led conversations with Buyers. Conversations are generally interview-style wherein Analysts question Buyers about the purchase process or usage of a particular software product.
Analyst: The individual leading the conversation with a Buyer. Analysts ask Buyers structured and specific questions regarding the Buyer’s purchase process and/or use of a particular software product.
Buyer. The individual being interviewed by the Analyst. The Buyer may be a software buyer, end-user, or otherwise have specific insight into the purchasing process or usage of a software product or service.
Custom Transcript. A Yardstiq Transcript which does not already exist in the CB Insights platform.
Transcript Research. Includes Software Buyer’s Guides and Vendor Scorecards. Software Buyer’s Guides provide questions which Buyers ask when evaluating categories of software. Vendor Scorecards compare companies within a particular technology market.
- Content and Disclaimer. Yardstiq Transcripts reflect discussions between Analysts and Buyers conducted. CB Insights has not undertaken to verify the accuracy of any information or data provided in any Yardstiq Transcript. Any statements, views or opinions contained in any Yardstiq Transcript do not represent the statements, views, or opinions of CB Insights. CB Insights expressly disclaims any responsibility or liability for the content of any Yardstiq Transcript or for any consequences that may arise from the use of or reliance on the information or data contained in any Yardstiq Transcript to the fullest extent permitted by law.
- Custom Transcripts. Customer may request that CB Insights produce a specific Yardstiq Transcript that is not currently listed on CB Insights’ Yardstiq platform. Contents of the Custom Transcript shall be incorporated into the Yardstiq database and accessible by all Yardstiq Customers.
CB Insights reserves the right to refuse Custom Transcript requests at its sole discretion. In the event CB Insights cannot complete a Custom Transcript requested, Customer shall have any funds paid for the specific Custom Transcript returned.
- Limitations on Use. Customer may use and apply information from Transcripts for the purpose of internal business activities, but under no circumstances shall Customer be permitted to identify or quote Buyers or attribute insights or opinions to Buyers or CB Insights. Any written materials provided in connection to a Transcript or use of the Yardstiq Service may not be redistributed, disseminated, published, or displayed, in whole or in part, with any third parties without prior written permission of CB Insights.
Exhibit B
Additional API Terms of Service
Additional Terms (API)
- API (Internal Use Only). As to Licensed Materials accessed through the API, Licensee may only use the Licensed Materials for the Licensee’s internal business activities.
- API (Effects of Termination). Upon termination of this Order or failure to renew the same upon expiration, Licensee shall immediately cease accessing and using the Licensed Materials accessed through the API and shall promptly destroy all Licensed Materials accessed through the API in Licensee’s possession, except that Licensee may retain copies of Licensed Materials as necessary for any data retention requirements. Notwithstanding the foregoing, Licensee is prohibited from using the Licensed Materials accessed through the API after termination of this Order in any other manner. Upon request by Licensor, Licensee shall provide sworn certification in a form provided by Licensor by a duly authorized officer of Licensee that all Licensed Materials accessed through the API have been destroyed as required herein.
- Delivery Method for the Services. Software: access provided via www.cbinsights.com; API
API: Authentication is through JWT (JSON Web Tokens) via JSON web signature and JSON web encryption.
No Raw Data in Licensee Commercial Databases/Platforms. For clarity, no raw data from either the Platform or Data Solutions (API and Data Feed) may be included in any of Licensee’s databases or systems that are accessible by Licensee’s clients or otherwise used as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using such raw data as a primary source to create and/or maintain any market index or database that Licensee publishes or distributes to third parties.
Effective March 28th 2023 to April 3rd 2023
DownloadTable of Contents
This master subscription agreement, ("MSA") which may include any relevant ordering documents and exhibits (collectively, “Agreement”), is made by and between CB Information Services, Inc., a corporation validly existing under the laws of Delaware (“CB Insights” or “Licensor”) and the specific person or entity identified as the licensee or customer or party thereto in the associated agreement, ordering document, or purchase order (“Licensee” or “You”). Licensee and Licensor may be collectively referred to as the “Parties” or individually as a “Party.” This MSA governs Your purchase and use of the Services and Licensed Materials (as defined herein, respectively) and shall be effective as of the date electronically accepted or last signed, whichever the case may be (“Effective Date”). CB Insights may amend this MSA at any time by posting a revised version on legal.cbinsights.com. Each revised version will state its effective date, which will be on or after the date posted by CB Insights. If the revised version materially reduces Your rights under this MSA, CB Insights will send notice to the email address it has on file, and request acceptance of the materially changed version. Otherwise, Your continued use of the Services after the effective date of a non-materially revised version of this MSA constitutes your acceptance of the terms.
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Services
- Provision of Services. Subject to the payment of all applicable Fees and for the applicable Subscription Term, Licensor hereby grants to Licensee a non-sublicensable, non-transferable (except as provided herein), non-exclusive right and limited license to use the Services and access the Licensed Materials, in accordance with the terms and conditions of this MSA and all Order Forms or Webpage Checkouts, as applicable. Licensor reserves the right to revise or discontinue certain features or content of the Services if, in Licensor’s sole discretion, such action is necessary for the provision of the Services or such features or content are minor and not disruptive to the overall use of the Services. Licensee further agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Licensor regarding future functionality or features.
- Order Forms and Webpage Checkouts. Each Order Form and Webpage Checkout for Services will describe the License, as well as additional mutually agreed-upon limitations on use of the Services, including, to the extent applicable, Fees, the Subscription Term, the number of and/or class of permitted Users and the permitted scope of use of the Services. The number of authorized, individual Users that shall have access to the Services pursuant to a License is limited to individuals that are part of one or more designated business department(s) or functional group(s) within the Licensee’s organization (“Business Group”). The Order Form will specifically identify and list the particular Business Group and total number of authorized Users (“User Limit”). For each License, only Users who are a member of the designated Business Group may access the Services. For Services purchased through an Order Form, Licensee may occasionally switch Users under a License, provided that (i) the number of Users does not exceed the User Limit, and (ii) new Users are members of the same Business Group designated as such in the applicable Order Form. Violation of the restrictions set forth herein, which shall include sharing User accounts with any unauthorized individuals, will be considered a material breach by Licensee. Unless expressly referenced otherwise in an Order Form or Webpage Checkout, the rights granted in a License are granted only to Licensee, and do not extend to Licensee’s shareholders, parents, subsidiaries, affiliates or other related entities or individuals not included in the definition of Licensee on the Order Form or Webpage Checkout. Such related affiliates must execute a separate Order Form or Webpage Checkout in order to use the Services and Licensed Materials.
- Authorized Use. Except as expressly stated otherwise herein or in an applicable Order Form or Webpage Checkout, Users may access the Services and use the Licensed Materials only for the Licensee’s internal business activities and may store Licensed Materials on computers or devices or locations owned by or under its control (which may include commercial cloud storage). Users may also extract, quote, and/or distribute limited selections of Licensed Materials in work product for distribution throughout Licensee’s organizations to support any of Licensee’s businesses (“Work Product”). From time to time, Licensee and its Users may also excerpt and distribute limited, insubstantial portions of Licensed Materials (in electronic form or hard copies) to third parties to support any of Licensee’s businesses, provided that any publicly available Licensed Materials shall be conspicuously attributed to Licensor, using the phrase, “SOURCE: CB INSIGHTS” or such other similar language. Notwithstanding the foregoing, to the extent Licensee receives any Licensed Materials through a Licensor API or other direct data feed, Licensee agrees it may only use such retrieved Licensed Materials for internal purposes and may not distribute such received Licensed Materials to any third parties.
- Limitations. Licensee shall not, and shall cause its Users to not: (i) distribute Licensed Materials to a third-party in any quantity or manner that would serve as a substitute for the purchase of a subscription to the Services or Licensed Materials by the recipient; (ii) use the Services in a manner contrary to or in violation of any applicable laws or in any other manner except as expressly permitted in this MSA; (iii) market, sell, license, or commercially distribute the Services to third parties or use as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using the Licensed Materials as a primary source to create and/or maintain any market index, database, interface, mobile platform, or software program that the Licensee publishes or distributes or commercially provides to third parties; (iv) decompile or reverse engineer any software relating to the Services; or (v) use the Services in any manner which competes against Licensor.
- Links to Other Websites. Licensee acknowledges and agrees that Users may, through hypertext or other computer links available in the Services, elect to gain access to websites operated by individuals or entities other than Licensor. Such hyperlinks are provided for Licensee’s and its Users’ reference and convenience only and are the exclusive responsibility of the owners of each such website. Licensee agrees and acknowledges that Licensor is not responsible for the content or operation of such websites, and that Licensor shall have no liability to Licensee, Users, or any other person or entity for the use of third-party websites. Licensee and/or its Users are solely responsible for determining the extent to which Users may use any content at any other such websites. Additionally, Licensee acknowledges and agrees that such websites may be subject to different terms and conditions which may be different from this MSA and which will govern with respect to Users’ use of such websites.
- Registration and User ID Security. Some of the Services require secure login through a unique username and password (collectively, “User ID”). If Users access the Services using secure User IDs, Licensee agrees as follows (and shall compel its Users to agree) for purposes of initial registration and general User ID security: (i) as part of the registration process which may be necessary to obtain access to the Services, Licensee shall provide certain truthful registration information to Licensor (subject to all confidentiality obligations stated herein), with each registration being for a single User only; (ii) Users shall have access to the Services during the Subscription Term through the User ID, which may be used by Users to gain access to the Services only for so long as such Users are authorized to access and use the Services in accordance with the terms of this MSA or the applicable Order Form or Webpage Checkout; and (iii) Licensee agrees to treat the User ID as confidential and, as to the Users, not to disclose or share such User ID, either directly or indirectly, to any person other than as directed by Licensee or permitted by Licensor in writing. Notwithstanding anything to the contrary stated herein, Licensor shall not be liable to Licensee or any third person or entity for any loss or damage directly arising from own Licensee’s failure to comply with these security requirements. Subject to any confidentiality obligations contained herein or in an applicable Order Form or Webpage Checkout, Licensor reserves the right to monitor the use of the Services solely to ensure compliance with the terms of this MSA and to maintain and improve the provision of the Services.
2. Fees and Payment Terms
- Fees. Licensee will pay Licensor all Fees in accordance with this Section 2 and the applicable Order Form or Webpage Checkout. Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable and Fees paid are non-refundable unless this MSA or an applicable Order Form or Webpage checkout, is terminated for cause pursuant to Section 8(c), in which case any prepaid, unearned Fees will be refunded in a prorated amount. Licensee acknowledges that failure to timely pay invoiced Fees may result in loss of access to the Services.
- Invoices and Payment. Licensee shall pay Fees according to the terms of the applicable Order Form or Webpage Checkout.
- Taxes. Licensee is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from Licensor’s provision of the Services hereunder, except any taxes assessed upon Licensor’s net income or payroll. If Licensor is required to directly pay Taxes related to Licensee’s use or receipt of any Services, Licensee agrees to promptly reimburse Licensor for any amounts paid by Licensor.
3. Proprietary Rights
- Licensee Property. As between Licensee and Licensor, Licensee retains all rights, title, and interest in and to the Licensee Property. Except as expressly set out in this MSA, no right, title, or license under any Licensee Data is granted to Licensor or implied hereby, and for any Licensee Property that is licensed to Licensor, no title or ownership rights are transferred with such license.
- License to Licensor. Notwithstanding the foregoing, Licensee hereby grants Licensor a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this MSA), and royalty-free license under Licensee IPR to access and use the Licensee Data and any other Licensee Property made available to Licensor or any of its Affiliates, solely as necessary for Licensor to provide the Services to Licensee pursuant to this MSA.
- Licensor Property. As between Licensor and Licensee, Licensor retains all rights, title, and interest in and to the Licensor Property, and except as expressly set out in this MSA, no right, title, or license under any Licensor Property is granted to Licensee or implied hereby. For avoidance of doubt, the granting of any license herein does not affect the ownership of any Licensed Materials, whether tangible or intangible, and, unless expressly stated otherwise in an Order Form or Webpage Checkout, none of the Licensed Materials accessed through the Services shall be considered a “Works Made for Hire” as defined by the copyright laws of the United States.
4. Confidentiality and Data Security
- Confidentiality. During the term of this MSA and for a period of three (3) years thereafter, each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its Affiliates, officers, directors, employees, subcontractors, agents or prospective financing sources or acquirers who need to know such information in connection with this MSA and who are bound by written agreements requiring the protection of such Confidential Information.
- Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's expense, if the Disclosing Party wishes to contest the disclosure.
- Return of Confidential Information. At any time upon the request of the Disclosing Party, or in the event of termination of this MSA, the Receiving Party will return, or destroy as so directed by the Disclosing Party, all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form; provided, however, the Receiving Party shall not be required to return or destroy electronic copies that are automatically stored in accordance with Receiving Party’s generally applicable backup policies and which are not reasonably accessible by the Receiving Party (“Backup Media”). All Backup Media shall remain subject to the confidentiality obligations set forth herein, notwithstanding the expiration or termination of this MSA, so long as it remains undeleted.
- Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 4, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
- Licensee Data Security. Except as provided otherwise herein, Licensor agrees and acknowledges that it shall consider Licensee Data to be Licensee’s Confidential Information. Licensee agrees and acknowledges that Licensor may use Licensee Data only for the purposes providing, maintaining, and improving the Services to and for the Licensee. Notwithstanding the foregoing, Licensee agrees and acknowledges that Licensor will treat Licensee Data in accordance with the Licensor’s privacy statement located at: legal.cbinsights.com.
5. Warranties; Disclaimers
- Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this MSA. Licensee warrants that it will not use the Services for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party. Licensor warrants to Licensee that during the applicable Subscription Term the Services purchased by Licensee will substantially perform in all material respects with the applicable portions of the Documentation; provided however, that such warranty shall not apply to non-conformities, errors, or problems caused by acts within the control of Licensee or any of its Representatives, or arising from Licensee’s negligence or improper use of the Services, from unauthorized modifications made to the Services, from use of the Services in an unsupported manner, or from interoperability issues arising from devices or equipment or browsers used by Licensee to access the Services, or that arises from Licensee’s or any third party’s software or systems
- Disclaimer. THE LICENSED MATERIALS AVAILABLE THROUGH THE SERVICES HAVE BEEN GATHERED BY LICENSOR FROM SOURCES BELIEVED BY LICENSOR TO BE RELIABLE AND HAVE BEEN ARRANGED IN A WAY THAT LICENSOR BELIEVES WILL INCREASE THE EASE OF ACCESS, USE, AND UTILITY OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS MSA, (1) NEITHER PARTY MAKES ANY ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO THE OTHER PARTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (2) EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND (3) LICENSOR’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICES AGAIN. LICENSEE AGREES AND ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. LICENSOR DOES NOT REPRESENT OR WARRANT THAT: (I) THE SERVICES WILL MEET LICENSEE’S BUSINESS REQUIREMENTS; (II) THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM ITS USE WILL BE ACCURATE OR RELIABLE; OR (III) ALL DEFICIENCIES IN THE SERVICES CAN BE FOUND OR CORRECTED. LICENSOR WILL NOT BE RESPONSIBLE FOR: (A) LOSS OF DATA THAT IS NOT DUE TO A BREACH OF THIS MSA BY LICENSOR; (B) THE INABILITY OF LICENSEE OR ANY USER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET
- No Professional Advice. LICENSEE AGREES AND ACKNOWLEDGES THAT NONE OF THE SERVICES OR PROVISION OF LICENSED MATERIALS CONSTITUTES PROFESSIONAL ADVICE, OPINION, OR RECOMMENDATION BY LICENSOR. LICENSOR DOES NOT CLAIM TO BE AND IS NOT A BROKER, DEALER OR INVESTMENT ADVISOR AND NOTHING HEREIN SHALL CONSTITUTE A SALE OR OFFER TO BUY, SELL, OR RECOMMEND ANY SECURITIES OR COMPANIES. LICENSEE ACKNOWLEDGES THAT IT MAKES ITS OWN INVESTMENT DECISIONS BASED UPON ITS OWN DUE DILIGENCE, INVESTIGATION AND OTHER SPECIFIC INVESTMENT CRITERIA.
6. Indemnification
- Indemnification by Licensor. Licensor will defend and pay Licensee, its employees, directors and officers (the “Licensee Indemnified Parties”) from and against any and all costs, damages and expenses, including reasonable attorneys’ fees (collectively, “Losses”), suffered or incurred by any Licensee Indemnified Party, as a result of any claim brought by a third party (“Third Party Claim”) against a Licensee Indemnified Party alleging that the use of the Services in accordance with the terms and conditions of this MSA infringes any patent, copyright, trademark or trade secret right of such third party (an “Infringement Claim”). Without limiting the foregoing, in the event that the Services or any part thereof is likely to, in Licensor’s sole opinion, or do become the subject of an Infringement Claim, Licensor may, at its option and expense: (i) procure for Licensee the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non-infringing replacement for such item, or (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the MSA and any outstanding Order Forms or Webpage Checkouts and refund to Licensee Fees paid by Licensee to Licensor for the infringing items in an amount prorated to reflect the period of time between the date Licensee was unable to use the Services due to such Infringement Claim and the remaining days in the current Subscription Term. Licensor shall have no liability for any Infringement Claim arising from (1) Licensee’s use or supply to Licensor of any Licensee Property; (2) use of the Services other than in accordance with the MSA or in combination with any software, hardware, network or system not supplied by Licensor if the alleged infringement relates to such combination; (3) any modification or alteration of the Services (other than by Licensor), if the alleged infringement arises in connection with such modification or alteration; or (4) Licensee’s violation of applicable law or third party rights.
- Indemnification by Licensee. Licensee will defend and pay Licensor, its employees, directors and officers (the “Licensor Indemnified Parties”) from and against any and all Losses, suffered or incurred by any Licensor Indemnified Party, arising from any Third Party Claim against an Licensor Indemnified Party : (i) alleging that any Licensee Property or Licensee’s use of the Services beyond the license granted in this MSA violates the rights of privacy or publicity of any third party, or infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party, and/or (ii) of infringement or misappropriation excluded from Licensor’s foregoing indemnity obligations under Section 6(a).
- Indemnification Conditions. The Parties’ obligations under this Section 6 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim subject to indemnification under this Section 6, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section 6 are subject to the limitations and exclusions set forth in Section 7 below, and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable Third Party Claim.
7. Limitation of Liability
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS MSA, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM LICENSEE HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE (THE “LIABILITY CAP”), EXCEPT THAT: (I) LIABILITY ARISING OUT OF A BREACH OF THE OBLIGATIONS IN SECTION 4 (CONFIDENTIALITY AND DATA SECURITY) WILL INSTEAD BE LIMITED TO THE HIGHER LIMIT OF THREE TIMES (3X) THE LIABILITY CAP; (II) LICENSEE’S BREACH OF SECTION 1(d) SHALL BE LIMITED TO THE HIGHER LIMIT OF TEN TIMES (10X) THE LIABILITY CAP; AND (III) THE GROSS NEGLIGENCE AND WILLFUL MISCONDUCT OF EITHER PARTY WILL NOT BE LIMITED BY THE LIABILITY CAP. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS MSA FAIL OF THEIR ESSENTIAL PURPOSE.
- Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THIS MSA.
8. Term and Termination
- Term of MSA. This MSA commences on the Effective Date and shall remain in effect until terminated in accordance with Section 8(c).
- Term of Subscriptions. Licensee’s access to the purchased Services shall commence on the start date specified in the relevant Order Form or Webpage Checkout and continue for the Subscription Term specified on such Order Form or Webpage Checkout. Pricing for any renewal term may increase by up to five percent (5%) above the applicable pricing in the prior Subscription Term to the current per-unit list pricing. Except as expressly provided in an applicable Order Form, renewal of any promotional or one-time priced offerings may be priced at the certain list price in effect at the time of the applicable renewal. If Licensee purchases access to the Services through Licensor's website, Licensee's Subscription Term will automatically renew upon the last day of the then-current Term unless Licensee opts out of such renewal at least thirty (30) days prior to such date.
- Termination. Either Party may terminate this MSA and/or any Order Form or Webpage Checkout by providing written notice to the other Party in the event (i) the other Party materially breaches any of its duties, obligations or responsibilities under this MSA and fails to cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach, or provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan; (ii) a receiver, trustee, administrator, or administrative receiver is appointed for the other Party or its property; (iii) the other Party makes an assignment for the benefit of creditors; (iv) any proceedings should be commenced against the other Party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings shall not be vacated or set aside within sixty (60) days from the date of commencement thereof; or (v) the other Party is liquidated or dissolved. In addition, a Party may terminate this MSA by providing written notice to the other Party if there are no Order Forms or Webpage Checkouts in effect for more than ninety (90) days, continuously. For avoidance of doubt, neither Party may terminate this MSA or any applicable Order Form or Webpage Checkout for convenience during the Subscription Term.
- Effect of Termination. Expiration or termination of one Order Form or Webpage Checkout shall not affect any other Order Forms or Webpage Checkouts. Upon termination of this MSA for any reason or termination of a Team License in an Order Form or Webpage Checkout, Licensee shall (and shall ensure that all Users within an applicable Team License shall) immediately cease accessing and using the Services and Licensed Materials, and Licensee must delete and destroy all copies of Licensed Materials stored on Licensee systems or that is otherwise in Licensee’s possession or under Licensee’s control. Licensee may, however, retain Licensed Materials in aggregate form that is included in Work Product, articles, blogs, or other content or materials, that were created in accordance with the terms of this MSA prior to the effective date of termination. Additionally, Licensee may retain Licensed Materials which are required to be retained pursuant to regulatory or other data-retention policies.
- Surviving Provisions. The following provisions shall survive the termination or expiration of this MSA for any reason and shall remain in effect after any such termination or expiration: Sections 1(d), 2, 3(a) and (c), 4, 7, 8(d) and (e), and 9. Termination or expiration of this MSA shall not affect any obligation accrued or arising prior to such termination or expiration.
9. Miscellaneous Provisions
- Relationship. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties and Licensor will be considered an independent contractor when performing any Services hereunder.
- Licensee Affiliates. An Affiliate or parent of Licensee may purchase Services subject to the terms of this MSA by executing Order Forms with Licensor hereunder. By entering into an Order Form hereunder, the Affiliate agrees to be bound by the terms of this MSA as if it were an original party hereto.
- Entire Understanding. This MSA (including all Exhibits and Order Forms or Webpage Checkouts, all of which are incorporated herein by reference) constitutes the entire agreement between the Parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this MSA. To the extent of any conflict or inconsistency between the provisions in the body of this MSA and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Licensee purchase order or in any other ordering documentation (excluding Order Forms) are hereby rejected. Such terms will not be deemed incorporated into or form any part of this MSA, and all such terms or conditions are null and void.
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Licensee, Section 1(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Modification; Waiver and Cumulative Remedies. Except for Licensor’s modification or update of the Services, or any policies as necessary to comply with applicable law, rules, regulations, no modification of this MSA, and no waiver of any breach of this MSA or right under this MSA, is legally binding against the other Party unless in writing and signed or electronically accepted by both Parties. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
- Arbitration; Governing Law; Venue. The parties hereto agree that any dispute, claim or controversy arising out of or relating to this MSA or the breach, termination, enforcement, interpretation or validity hereof or thereof, including the determination of the scope or applicability of this MSA to arbitrate, shall be determined by final and binding arbitration in New York City, New York (except for an action for interim equitable relief otherwise permitted under this MSA and/or unless otherwise agreed by the parties), before a sole arbitrator, in accordance with the laws of the State of New York for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and Procedures; provided, however, if the Parties mutually elect, the arbitration can be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures instead of its Comprehensive Arbitration Rules and Procedures. The arbitrator’s decision shall be reduced to writing, signed by the arbitrator, and mailed to each of the parties and their legal counsel. All decisions of the arbitrator shall be final, binding and conclusive on the parties. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a decision in accordance with applicable law in any court having jurisdiction thereof. The Parties will pay their own costs (including, without limitation, attorneys’ fees) and expenses in connection with such arbitration.
- Publicity. Any press release developed by a Party regarding this MSA shall be subject to the prior written consent of the other Party. Licensor may identify Licensee as a user of the Services by referencing Licensee’s name and logo, provided that such reference is consistent with Licensee’s generally applicable branding guidelines and that Licensor will cease making such references after receiving written notice from Licensee to do so.
- Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, Licensor may assign this MSA in its entirety, together with all rights and obligations hereunder, without consent of Licensee, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this MSA. Any attempt by a Party to assign its rights or obligations under this MSA in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
- Notices. All notices under this MSA shall be in writing and shall be delivered to the emails or addresses first set forth in the Order Form(s) or Webpage Checkout(s), as applicable. Either Party may change its address for notice by giving notice of such address change in the manner provided herein. All communications and notices to be made or given pursuant to this MSA shall be in the English language.
- Anti-Corruption. Licensee acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any Licensor employees, agent or representative in connection with this MSA, other than reasonable gifts and entertainment provided in the ordinary course of business. Licensee will promptly notify Licensor if it offers or receives any such improper payment or transfer in connection with this MSA.
- Severability. If any provision of this MSA is held by a court of competent jurisdiction to be contrary to law, 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 MSA shall remain in effect
- “Affiliate” of a Party means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity (and the correlative terms, “controlled by” and “under common control with”) means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.
- “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed, including pricing and other terms set forth in an Order Form or Webpage Checkout. The Licensor Property shall constitute Licensor’s Confidential Information regardless of the means or manner by which it is disclosed. Licensee Data shall constitute Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information that a Receiving Party can show: (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; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
- “License” means a current and valid license to access or use the Services, and which may include, but is not limited to, purchased subscription to the Services for one or more Users associated with a Team License, or any other valid and authorized right/license as permitted by Licensor.
- “Licensed Materials” means all content and data and reports, including without limitation, metrics, calculations, text, research, ratings, rankings, opinions, photographs, video, audio, graphics, tools, analytics, functionality, products and information displayed and/or otherwise provided by the Services.
- “Licensee Data” means, other than the Utilization Data, all data or information submitted, electronic or otherwise, by or on behalf of Licensee to the Services and/or to Licensor.
- “Licensee Property” means (i) the Licensee Data, and (ii) all patent, copyright, trade secret or other intellectual property rights embodied in or related to any of the foregoing (the “Licensee IPR”).
- “Documentation” means all documentation and other instructional material, if applicable, made available by Licensor regarding the use of the Services.
- “Fees” means all fees specified in or otherwise incurred pursuant to an Order Form or Webpage Checkout.
- “Licensor Property” means (i) the Services, (ii) all Licensed Materials supplied by Licensor in connection with, or used by Licensor in providing, any of the foregoing, and (iii) all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to any of the foregoing. For clarity, Licensor Property includes Utilization Data and any information, data, or other content derived from Licensor’s authorized monitoring of any User’s access to or use of the Services but does not include Licensee Data.
- “Order Form” means an ordering document for Services purchased from Licensor that has been executed hereunder by the Parties, including without limitation any attached or associated statement of work.
- “Representatives” means with respect to any individual and/or the entity on whose behalf such individual is entering into a commercial agreement with Licensor, all users, employees, agents, subcontractors and other representatives of such individual or entity (as applicable).
- “Services” means any of the paid or trial subscriptions to various online, web-based applications, software services, data feeds or data delivery materials, application programming interface (“API”), data downloads and plugins as well as certain standalone or recurring research services or reports provided by CB Insights directly or via certain websites owned and operated by Licensor, as well as (i) the Licensed Materials contained therein, and (ii) any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.
- “Subscription Term” means the subscription period set forth in the applicable Order Form or Webpage Checkout during which Licensor agrees to provide the Services to Licensee.
- “Team License” means a License specifically for a defined number of individual Users within or among the designated Business Group(s) (as defined herein) who typically work closely together on a daily basis and are part of the same immediate chain-of-command. Individuals who only periodically work together or tangentially support the designated Business Group may not be considered Users under a Team License and must be part of their own, separate License.
- “User” means a person directly affiliated with Licensee who has an email address with Licensee’s organization and is the recipient of the Services.
- “Utilization Data” means data and information related to Licensee’s use of the Services that is used by Licensor in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
- "Webpage Checkout" means an ordering document for Services purchased through a self-service checkout process through Licensor's website.
Effective March 28th 2023 to March 28th 2023
DownloadTable of Contents
This master subscription agreement, ("MSA") which may include any relevant ordering documents and exhibits (collectively, “Agreement”), is made by and between CB Information Services, Inc., a corporation validly existing under the laws of Delaware (“CB Insights” or “Licensor”) and the specific person or entity identified as the licensee or customer or party thereto in the associated agreement, ordering document, or purchase order (“Licensee” or “You”). Licensee and Licensor may be collectively referred to as the “Parties” or individually as a “Party.” This MSA governs Your purchase and use of the Services and Licensed Materials (as defined herein, respectively) and shall be effective as of the date electronically accepted or last signed, whichever the case may be (“Effective Date”). CB Insights may amend this MSA at any time by posting a revised version on legal.cbinsights.com. Each revised version will state its effective date, which will be on or after the date posted by CB Insights. If the revised version materially reduces Your rights under this MSA, CB Insights will send notice to the email address it has on file, and request acceptance of the materially changed version. Otherwise, Your continued use of the Services after the effective date of a non-materially revised version of this MSA constitutes your acceptance of the terms.
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Services
- Provision of Services. Subject to the payment of all applicable Fees and for the applicable Subscription Term, Licensor hereby grants to Licensee a non-sublicensable, non-transferable (except as provided herein), non-exclusive right and limited license to use the Services and access the Licensed Materials, in accordance with the terms and conditions of this MSA and all Order Forms or Webpage Checkouts, as applicable. Licensor reserves the right to revise or discontinue certain features or content of the Services if, in Licensor’s sole discretion, such action is necessary for the provision of the Services or such features or content are minor and not disruptive to the overall use of the Services. Licensee further agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Licensor regarding future functionality or features.
- Order Forms and Webpage Checkouts. Each Order Form and Webpage Checkout for Services will describe the License, as well as additional mutually agreed-upon limitations on use of the Services, including, to the extent applicable, Fees, the Subscription Term, the number of and/or class of permitted Users and the permitted scope of use of the Services. The number of authorized, individual Users that shall have access to the Services pursuant to a License is limited to individuals that are part of one or more designated business department(s) or functional group(s) within the Licensee’s organization (“Business Group”). The Order Form will specifically identify and list the particular Business Group and total number of authorized Users (“User Limit”). For each License, only Users who are a member of the designated Business Group may access the Services. For Services purchased through an Order Form, Licensee may occasionally switch Users under a License, provided that (i) the number of Users does not exceed the User Limit, and (ii) new Users are members of the same Business Group designated as such in the applicable Order Form. Violation of the restrictions set forth herein, which shall include sharing User accounts with any unauthorized individuals, will be considered a material breach by Licensee. Unless expressly referenced otherwise in an Order Form or Webpage Checkout, the rights granted in a License are granted only to Licensee, and do not extend to Licensee’s shareholders, parents, subsidiaries, affiliates or other related entities or individuals not included in the definition of Licensee on the Order Form or Webpage Checkout. Such related affiliates must execute a separate Order Form or Webpage Checkout in order to use the Services and Licensed Materials.
- Authorized Use. Except as expressly stated otherwise herein or in an applicable Order Form or Webpage Checkout, Users may access the Services and use the Licensed Materials only for the Licensee’s internal business activities and may store Licensed Materials on computers or devices or locations owned by or under its control (which may include commercial cloud storage). Users may also extract, quote, and/or distribute limited selections of Licensed Materials in work product for distribution throughout Licensee’s organizations to support any of Licensee’s businesses (“Work Product”). From time to time, Licensee and its Users may also excerpt and distribute limited, insubstantial portions of Licensed Materials (in electronic form or hard copies) to third parties to support any of Licensee’s businesses, provided that any publicly available Licensed Materials shall be conspicuously attributed to Licensor, using the phrase, “SOURCE: CB INSIGHTS” or such other similar language. Notwithstanding the foregoing, to the extent Licensee receives any Licensed Materials through a Licensor API or other direct data feed, Licensee agrees it may only use such retrieved Licensed Materials for internal purposes and may not distribute such received Licensed Materials to any third parties.
- Limitations. Licensee shall not, and shall cause its Users to not: (i) distribute Licensed Materials to a third-party in any quantity or manner that would serve as a substitute for the purchase of a subscription to the Services or Licensed Materials by the recipient; (ii) use the Services in a manner contrary to or in violation of any applicable laws or in any other manner except as expressly permitted in this MSA; (iii) market, sell, license, or commercially distribute the Services to third parties or use as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using the Licensed Materials as a primary source to create and/or maintain any market index, database, interface, mobile platform, or software program that the Licensee publishes or distributes or commercially provides to third parties; (iv) decompile or reverse engineer any software relating to the Services; or (v) use the Services in any manner which competes against Licensor.
- Links to Other Websites. Licensee acknowledges and agrees that Users may, through hypertext or other computer links available in the Services, elect to gain access to websites operated by individuals or entities other than Licensor. Such hyperlinks are provided for Licensee’s and its Users’ reference and convenience only and are the exclusive responsibility of the owners of each such website. Licensee agrees and acknowledges that Licensor is not responsible for the content or operation of such websites, and that Licensor shall have no liability to Licensee, Users, or any other person or entity for the use of third-party websites. Licensee and/or its Users are solely responsible for determining the extent to which Users may use any content at any other such websites. Additionally, Licensee acknowledges and agrees that such websites may be subject to different terms and conditions which may be different from this MSA and which will govern with respect to Users’ use of such websites.
- Registration and User ID Security. Some of the Services require secure login through a unique username and password (collectively, “User ID”). If Users access the Services using secure User IDs, Licensee agrees as follows (and shall compel its Users to agree) for purposes of initial registration and general User ID security: (i) as part of the registration process which may be necessary to obtain access to the Services, Licensee shall provide certain truthful registration information to Licensor (subject to all confidentiality obligations stated herein), with each registration being for a single User only; (ii) Users shall have access to the Services during the Subscription Term through the User ID, which may be used by Users to gain access to the Services only for so long as such Users are authorized to access and use the Services in accordance with the terms of this MSA or the applicable Order Form or Webpage Checkout; and (iii) Licensee agrees to treat the User ID as confidential and, as to the Users, not to disclose or share such User ID, either directly or indirectly, to any person other than as directed by Licensee or permitted by Licensor in writing. Notwithstanding anything to the contrary stated herein, Licensor shall not be liable to Licensee or any third person or entity for any loss or damage directly arising from own Licensee’s failure to comply with these security requirements. Subject to any confidentiality obligations contained herein or in an applicable Order Form or Webpage Checkout, Licensor reserves the right to monitor the use of the Services solely to ensure compliance with the terms of this MSA and to maintain and improve the provision of the Services.
2. Fees and Payment Terms
- Fees. Licensee will pay Licensor all Fees in accordance with this Section 2 and the applicable Order Form or Webpage Checkout. Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable and Fees paid are non-refundable unless this MSA or an applicable Order Form or Webpage checkout, is terminated for cause pursuant to Section 8(c), in which case any prepaid, unearned Fees will be refunded in a prorated amount. Licensee acknowledges that failure to timely pay invoiced Fees may result in loss of access to the Services.
- Invoices and Payment. Licensee shall pay Fees according to the terms of the applicable Order Form or Webpage Checkout.
- Taxes. Licensee is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from Licensor’s provision of the Services hereunder, except any taxes assessed upon Licensor’s net income or payroll. If Licensor is required to directly pay Taxes related to Licensee’s use or receipt of any Services, Licensee agrees to promptly reimburse Licensor for any amounts paid by Licensor.
3. Proprietary Rights
- Licensee Property. As between Licensee and Licensor, Licensee retains all rights, title, and interest in and to the Licensee Property. Except as expressly set out in this MSA, no right, title, or license under any Licensee Data is granted to Licensor or implied hereby, and for any Licensee Property that is licensed to Licensor, no title or ownership rights are transferred with such license.
- License to Licensor. Notwithstanding the foregoing, Licensee hereby grants Licensor a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this MSA), and royalty-free license under Licensee IPR to access and use the Licensee Data and any other Licensee Property made available to Licensor or any of its Affiliates, solely as necessary for Licensor to provide the Services to Licensee pursuant to this MSA.
- Licensor Property. As between Licensor and Licensee, Licensor retains all rights, title, and interest in and to the Licensor Property, and except as expressly set out in this MSA, no right, title, or license under any Licensor Property is granted to Licensee or implied hereby. For avoidance of doubt, the granting of any license herein does not affect the ownership of any Licensed Materials, whether tangible or intangible, and, unless expressly stated otherwise in an Order Form or Webpage Checkout, none of the Licensed Materials accessed through the Services shall be considered a “Works Made for Hire” as defined by the copyright laws of the United States.
4. Confidentiality and Data Security
- Confidentiality. During the term of this MSA and for a period of three (3) years thereafter, each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its Affiliates, officers, directors, employees, subcontractors, agents or prospective financing sources or acquirers who need to know such information in connection with this MSA and who are bound by written agreements requiring the protection of such Confidential Information.
- Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's expense, if the Disclosing Party wishes to contest the disclosure.
- Return of Confidential Information. At any time upon the request of the Disclosing Party, or in the event of termination of this MSA, the Receiving Party will return, or destroy as so directed by the Disclosing Party, all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form; provided, however, the Receiving Party shall not be required to return or destroy electronic copies that are automatically stored in accordance with Receiving Party’s generally applicable backup policies and which are not reasonably accessible by the Receiving Party (“Backup Media”). All Backup Media shall remain subject to the confidentiality obligations set forth herein, notwithstanding the expiration or termination of this MSA, so long as it remains undeleted.
- Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 4, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
- Licensee Data Security. Except as provided otherwise herein, Licensor agrees and acknowledges that it shall consider Licensee Data to be Licensee’s Confidential Information. Licensee agrees and acknowledges that Licensor may use Licensee Data only for the purposes providing, maintaining, and improving the Services to and for the Licensee. Notwithstanding the foregoing, Licensee agrees and acknowledges that Licensor will treat Licensee Data in accordance with the Licensor’s privacy statement located at: legal.cbinsights.com.
5. Warranties; Disclaimers
- Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this MSA. Licensee warrants that it will not use the Services for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party. Licensor warrants to Licensee that during the applicable Subscription Term the Services purchased by Licensee will substantially perform in all material respects with the applicable portions of the Documentation; provided however, that such warranty shall not apply to non-conformities, errors, or problems caused by acts within the control of Licensee or any of its Representatives, or arising from Licensee’s negligence or improper use of the Services, from unauthorized modifications made to the Services, from use of the Services in an unsupported manner, or from interoperability issues arising from devices or equipment or browsers used by Licensee to access the Services, or that arises from Licensee’s or any third party’s software or systems
- Disclaimer. THE LICENSED MATERIALS AVAILABLE THROUGH THE SERVICES HAVE BEEN GATHERED BY LICENSOR FROM SOURCES BELIEVED BY LICENSOR TO BE RELIABLE AND HAVE BEEN ARRANGED IN A WAY THAT LICENSOR BELIEVES WILL INCREASE THE EASE OF ACCESS, USE, AND UTILITY OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS MSA, (1) NEITHER PARTY MAKES ANY ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO THE OTHER PARTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (2) EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND (3) LICENSOR’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICES AGAIN. LICENSEE AGREES AND ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. LICENSOR DOES NOT REPRESENT OR WARRANT THAT: (I) THE SERVICES WILL MEET LICENSEE’S BUSINESS REQUIREMENTS; (II) THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM ITS USE WILL BE ACCURATE OR RELIABLE; OR (III) ALL DEFICIENCIES IN THE SERVICES CAN BE FOUND OR CORRECTED. LICENSOR WILL NOT BE RESPONSIBLE FOR: (A) LOSS OF DATA THAT IS NOT DUE TO A BREACH OF THIS MSA BY LICENSOR; (B) THE INABILITY OF LICENSEE OR ANY USER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET
- No Professional Advice. LICENSEE AGREES AND ACKNOWLEDGES THAT NONE OF THE SERVICES OR PROVISION OF LICENSED MATERIALS CONSTITUTES PROFESSIONAL ADVICE, OPINION, OR RECOMMENDATION BY LICENSOR. LICENSOR DOES NOT CLAIM TO BE AND IS NOT A BROKER, DEALER OR INVESTMENT ADVISOR AND NOTHING HEREIN SHALL CONSTITUTE A SALE OR OFFER TO BUY, SELL, OR RECOMMEND ANY SECURITIES OR COMPANIES. LICENSEE ACKNOWLEDGES THAT IT MAKES ITS OWN INVESTMENT DECISIONS BASED UPON ITS OWN DUE DILIGENCE, INVESTIGATION AND OTHER SPECIFIC INVESTMENT CRITERIA.
6. Indemnification
- Indemnification by Licensor. Licensor will defend and pay Licensee, its employees, directors and officers (the “Licensee Indemnified Parties”) from and against any and all costs, damages and expenses, including reasonable attorneys’ fees (collectively, “Losses”), suffered or incurred by any Licensee Indemnified Party, as a result of any claim brought by a third party (“Third Party Claim”) against a Licensee Indemnified Party alleging that the use of the Services in accordance with the terms and conditions of this MSA infringes any patent, copyright, trademark or trade secret right of such third party (an “Infringement Claim”). Without limiting the foregoing, in the event that the Services or any part thereof is likely to, in Licensor’s sole opinion, or do become the subject of an Infringement Claim, Licensor may, at its option and expense: (i) procure for Licensee the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non-infringing replacement for such item, or (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the MSA and any outstanding Order Forms or Webpage Checkouts and refund to Licensee Fees paid by Licensee to Licensor for the infringing items in an amount prorated to reflect the period of time between the date Licensee was unable to use the Services due to such Infringement Claim and the remaining days in the current Subscription Term. Licensor shall have no liability for any Infringement Claim arising from (1) Licensee’s use or supply to Licensor of any Licensee Property; (2) use of the Services other than in accordance with the MSA or in combination with any software, hardware, network or system not supplied by Licensor if the alleged infringement relates to such combination; (3) any modification or alteration of the Services (other than by Licensor), if the alleged infringement arises in connection with such modification or alteration; or (4) Licensee’s violation of applicable law or third party rights.
- Indemnification by Licensee. Licensee will defend and pay Licensor, its employees, directors and officers (the “Licensor Indemnified Parties”) from and against any and all Losses, suffered or incurred by any Licensor Indemnified Party, arising from any Third Party Claim against an Licensor Indemnified Party : (i) alleging that any Licensee Property or Licensee’s use of the Services beyond the license granted in this MSA violates the rights of privacy or publicity of any third party, or infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party, and/or (ii) of infringement or misappropriation excluded from Licensor’s foregoing indemnity obligations under Section 6(a).
- Indemnification Conditions. The Parties’ obligations under this Section 6 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim subject to indemnification under this Section 6, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section 6 are subject to the limitations and exclusions set forth in Section 7 below, and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable Third Party Claim.
7. Limitation of Liability
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS MSA, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM LICENSEE HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE (THE “LIABILITY CAP”), EXCEPT THAT: (I) LIABILITY ARISING OUT OF A BREACH OF THE OBLIGATIONS IN SECTION 4 (CONFIDENTIALITY AND DATA SECURITY) WILL INSTEAD BE LIMITED TO THE HIGHER LIMIT OF THREE TIMES (3X) THE LIABILITY CAP; (II) LICENSEE’S BREACH OF SECTION 1(d) SHALL BE LIMITED TO THE HIGHER LIMIT OF TEN TIMES (10X) THE LIABILITY CAP; AND (III) THE GROSS NEGLIGENCE AND WILLFUL MISCONDUCT OF EITHER PARTY WILL NOT BE LIMITED BY THE LIABILITY CAP. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS MSA FAIL OF THEIR ESSENTIAL PURPOSE.
- Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THIS MSA.
8. Term and Termination
- Term of MSA. This MSA commences on the Effective Date and shall remain in effect until terminated in accordance with Section 8(c).
- Term of Subscriptions. Licensee’s access to the purchased Services shall commence on the start date specified in the relevant Order Form or Webpage Checkout and continue for the Subscription Term specified on such Order Form or Webpage Checkout. Pricing for any renewal term may increase by up to five percent (5%) above the applicable pricing in the prior Subscription Term to the current per-unit list pricing. Except as expressly provided in an applicable Order Form, renewal of any promotional or one-time priced offerings may be priced at the certain list price in effect at the time of the applicable renewal. If Licensee purchases access to the Services through Licensor's website, Licensee's Subscription Term will automatically renew upon the last day of the then-current Term unless Licensee opts out of such renewal at least thirty (30) days prior to such date.
- Termination. Either Party may terminate this MSA and/or any Order Form or Webpage Checkout by providing written notice to the other Party in the event (i) the other Party materially breaches any of its duties, obligations or responsibilities under this MSA and fails to cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach, or provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan; (ii) a receiver, trustee, administrator, or administrative receiver is appointed for the other Party or its property; (iii) the other Party makes an assignment for the benefit of creditors; (iv) any proceedings should be commenced against the other Party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings shall not be vacated or set aside within sixty (60) days from the date of commencement thereof; or (v) the other Party is liquidated or dissolved. In addition, a Party may terminate this MSA by providing written notice to the other Party if there are no Order Forms or Webpage Checkouts in effect for more than ninety (90) days, continuously. For avoidance of doubt, neither Party may terminate this MSA or any applicable Order Form or Webpage Checkout for convenience during the Subscription Term.
- Effect of Termination. Expiration or termination of one Order Form or Webpage Checkout shall not affect any other Order Forms or Webpage Checkouts. Upon termination of this MSA for any reason or termination of a Team License in an Order Form or Webpage Checkout, Licensee shall (and shall ensure that all Users within an applicable Team License shall) immediately cease accessing and using the Services and Licensed Materials, and Licensee must delete and destroy all copies of Licensed Materials stored on Licensee systems or that is otherwise in Licensee’s possession or under Licensee’s control. Licensee may, however, retain Licensed Materials in aggregate form that is included in Work Product, articles, blogs, or other content or materials, that were created in accordance with the terms of this MSA prior to the effective date of termination. Additionally, Licensee may retain Licensed Materials which are required to be retained pursuant to regulatory or other data-retention policies.
- Surviving Provisions. The following provisions shall survive the termination or expiration of this MSA for any reason and shall remain in effect after any such termination or expiration: Sections 1(d), 2, 3(a) and (c), 4, 7, 8(d) and (e), and 9. Termination or expiration of this MSA shall not affect any obligation accrued or arising prior to such termination or expiration.
9. Miscellaneous Provisions
- Relationship. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties and Licensor will be considered an independent contractor when performing any Services hereunder.
- Licensee Affiliates. An Affiliate or parent of Licensee may purchase Services subject to the terms of this MSA by executing Order Forms with Licensor hereunder. By entering into an Order Form hereunder, the Affiliate agrees to be bound by the terms of this MSA as if it were an original party hereto.
- Entire Understanding. This MSA (including all Exhibits and Order Forms or Webpage Checkouts, all of which are incorporated herein by reference) constitutes the entire agreement between the Parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this MSA. To the extent of any conflict or inconsistency between the provisions in the body of this MSA and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Licensee purchase order or in any other ordering documentation (excluding Order Forms) are hereby rejected. Such terms will not be deemed incorporated into or form any part of this MSA, and all such terms or conditions are null and void.
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Licensee, Section 1(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Modification; Waiver and Cumulative Remedies. Except for Licensor’s modification or update of the Services, or any policies as necessary to comply with applicable law, rules, regulations, no modification of this MSA, and no waiver of any breach of this MSA or right under this MSA, is legally binding against the other Party unless in writing and signed or electronically accepted by both Parties. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
- Arbitration; Governing Law; Venue. The parties hereto agree that any dispute, claim or controversy arising out of or relating to this MSA or the breach, termination, enforcement, interpretation or validity hereof or thereof, including the determination of the scope or applicability of this MSA to arbitrate, shall be determined by final and binding arbitration in New York City, New York (except for an action for interim equitable relief otherwise permitted under this MSA and/or unless otherwise agreed by the parties), before a sole arbitrator, in accordance with the laws of the State of New York for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and Procedures; provided, however, if the Parties mutually elect, the arbitration can be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures instead of its Comprehensive Arbitration Rules and Procedures. The arbitrator’s decision shall be reduced to writing, signed by the arbitrator, and mailed to each of the parties and their legal counsel. All decisions of the arbitrator shall be final, binding and conclusive on the parties. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a decision in accordance with applicable law in any court having jurisdiction thereof. The Parties will pay their own costs (including, without limitation, attorneys’ fees) and expenses in connection with such arbitration.
- Publicity. Any press release developed by a Party regarding this MSA shall be subject to the prior written consent of the other Party. Licensor may identify Licensee as a user of the Services by referencing Licensee’s name and logo, provided that such reference is consistent with Licensee’s generally applicable branding guidelines and that Licensor will cease making such references after receiving written notice from Licensee to do so.
- Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, Licensor may assign this MSA in its entirety, together with all rights and obligations hereunder, without consent of Licensee, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this MSA. Any attempt by a Party to assign its rights or obligations under this MSA in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
- Notices. All notices under this MSA shall be in writing and shall be delivered to the emails or addresses first set forth in the Order Form(s) or Webpage Checkout(s), as applicable. Either Party may change its address for notice by giving notice of such address change in the manner provided herein. All communications and notices to be made or given pursuant to this MSA shall be in the English language.
- Anti-Corruption. Licensee acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any Licensor employees, agent or representative in connection with this MSA, other than reasonable gifts and entertainment provided in the ordinary course of business. Licensee will promptly notify Licensor if it offers or receives any such improper payment or transfer in connection with this MSA.
- Severability. If any provision of this MSA is held by a court of competent jurisdiction to be contrary to law, 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 MSA shall remain in effect
- “Affiliate” of a Party means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity (and the correlative terms, “controlled by” and “under common control with”) means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.
- “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed, including pricing and other terms set forth in an Order Form or Webpage Checkout. The Licensor Property shall constitute Licensor’s Confidential Information regardless of the means or manner by which it is disclosed. Licensee Data shall constitute Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information that a Receiving Party can show: (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; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
- “License” means a current and valid license to access or use the Services, and which may include, but is not limited to, purchased subscription to the Services for one or more Users associated with a Team License, or any other valid and authorized right/license as permitted by Licensor.
- “Licensed Materials” means all content and data and reports, including without limitation, metrics, calculations, text, research, ratings, rankings, opinions, photographs, video, audio, graphics, tools, analytics, functionality, products and information displayed and/or otherwise provided by the Services.
- “Licensee Data” means, other than the Utilization Data, all data or information submitted, electronic or otherwise, by or on behalf of Licensee to the Services and/or to Licensor.
- “Licensee Property” means (i) the Licensee Data, and (ii) all patent, copyright, trade secret or other intellectual property rights embodied in or related to any of the foregoing (the “Licensee IPR”).
- “Documentation” means all documentation and other instructional material, if applicable, made available by Licensor regarding the use of the Services.
- “Fees” means all fees specified in or otherwise incurred pursuant to an Order Form or Webpage Checkout.
- “Licensor Property” means (i) the Services, (ii) all Licensed Materials supplied by Licensor in connection with, or used by Licensor in providing, any of the foregoing, and (iii) all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to any of the foregoing. For clarity, Licensor Property includes Utilization Data and any information, data, or other content derived from Licensor’s authorized monitoring of any User’s access to or use of the Services but does not include Licensee Data.
- “Order Form” means an ordering document for Services purchased from Licensor that has been executed hereunder by the Parties, including without limitation any attached or associated statement of work.
- “Representatives” means with respect to any individual and/or the entity on whose behalf such individual is entering into a commercial agreement with Licensor, all users, employees, agents, subcontractors and other representatives of such individual or entity (as applicable).
- “Services” means any of the paid or trial subscriptions to various online, web-based applications, software services, data feeds or data delivery materials, application programming interface (“API”), data downloads and plugins as well as certain standalone or recurring research services or reports provided by CB Insights directly or via certain websites owned and operated by Licensor, as well as (i) the Licensed Materials contained therein, and (ii) any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.
- “Subscription Term” means the subscription period set forth in the applicable Order Form or Webpage Checkout during which Licensor agrees to provide the Services to Licensee.
- “Team License” means a License specifically for a defined number of individual Users within or among the designated Business Group(s) (as defined herein) who typically work closely together on a daily basis and are part of the same immediate chain-of-command. Individuals who only periodically work together or tangentially support the designated Business Group may not be considered Users under a Team License and must be part of their own, separate License.
- “User” means a person directly affiliated with Licensee who has an email address with Licensee’s organization and is the recipient of the Services.
- “Utilization Data” means data and information related to Licensee’s use of the Services that is used by Licensor in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
- "Webpage Checkout" means an ordering document for Services purchased through a self-service checkout process through Licensor's website.
Effective March 16th 2023 to March 28th 2023
DownloadTable of Contents
This master subscription agreement, ("MSA") which may include any relevant ordering documents and exhibits (collectively, “Agreement”), is made by and between CB Information Services, Inc., a corporation validly existing under the laws of Delaware (“CB Insights” or “Licensor”) and the specific person or entity identified as the licensee or customer or party thereto in the associated agreement, ordering document, or purchase order (“Licensee” or “You”). Licensee and Licensor may be collectively referred to as the “Parties” or individually as a “Party.” This MSA governs Your purchase and use of the Services and Licensed Materials (as defined herein, respectively) and shall be effective at the time and in the manner as described herein (“Effective Date”). CB Insights may amend this MSA at any time by posting a revised version on legal.cbinsights.com. Each revised version will state its effective date, which will be on or after the date posted by CB Insights. If the revised version materially reduces Your rights under this MSA, CB Insights will send notice to the email address it has on file, and request acceptance of the materially changed version. Otherwise, Your continued use of the Services after the effective date of a non-materially revised version of this MSA constitutes your acceptance of the terms.
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Services
- Provision of Services. Subject to the payment of all applicable Fees and for the applicable Subscription Term, Licensor hereby grants to Licensee a non-sublicensable, non-transferable (except as provided herein), non-exclusive right and limited license to use the Services and access the Licensed Materials, in accordance with the terms and conditions of this MSA and all Order Forms or Webpage Checkouts, as applicable. Licensor reserves the right to revise or discontinue certain features or content of the Services if, in Licensor’s sole discretion, such action is necessary for the provision of the Services or such features or content are minor and not disruptive to the overall use of the Services. Licensee further agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Licensor regarding future functionality or features.
- Order Forms and Webpage Checkouts. Each Order Form and Webpage Checkout for Services will describe the License, as well as additional mutually agreed-upon limitations on use of the Services, including, to the extent applicable, Fees, the Subscription Term, the number of and/or class of permitted Users and the permitted scope of use of the Services. The number of authorized, individual Users that shall have access to the Services pursuant to a License is limited to individuals that are part of one or more designated business department(s) or functional group(s) within the Licensee’s organization (“Business Group”). The Order Form will specifically identify and list the particular Business Group and total number of authorized Users (“User Limit”). For each License, only Users who are a member of the designated Business Group may access the Services. For Services purchased through an Order Form, Licensee may occasionally switch Users under a License, provided that (i) the number of Users does not exceed the User Limit, and (ii) new Users are members of the same Business Group designated as such in the applicable Order Form. Violation of the restrictions set forth herein, which shall include sharing User accounts with any unauthorized individuals, will be considered a material breach by Licensee. Unless expressly referenced otherwise in an Order Form or Webpage Checkout, the rights granted in a License are granted only to Licensee, and do not extend to Licensee’s shareholders, parents, subsidiaries, affiliates or other related entities or individuals not included in the definition of Licensee on the Order Form or Webpage Checkout. Such related affiliates must execute a separate Order Form or Webpage Checkout in order to use the Services and Licensed Materials.
- Authorized Use. Except as expressly stated otherwise herein or in an applicable Order Form or Webpage Checkout, Users may access the Services and use the Licensed Materials only for the Licensee’s internal business activities and may store Licensed Materials on computers or devices or locations owned by or under its control (which may include commercial cloud storage). Users may also extract, quote, and/or distribute limited selections of Licensed Materials in work product for distribution throughout Licensee’s organizations to support any of Licensee’s businesses (“Work Product”). From time to time, Licensee and its Users may also excerpt and distribute limited, insubstantial portions of Licensed Materials (in electronic form or hard copies) to third parties to support any of Licensee’s businesses, provided that any publicly available Licensed Materials shall be conspicuously attributed to Licensor, using the phrase, “SOURCE: CB INSIGHTS” or such other similar language. Notwithstanding the foregoing, to the extent Licensee receives any Licensed Materials through a Licensor API or other direct data feed, Licensee agrees it may only use such retrieved Licensed Materials for internal purposes and may not distribute such received Licensed Materials to any third parties.
- Limitations. Licensee shall not, and shall cause its Users to not: (i) distribute Licensed Materials to a third-party in any quantity or manner that would serve as a substitute for the purchase of a subscription to the Services or Licensed Materials by the recipient; (ii) use the Services in a manner contrary to or in violation of any applicable laws or in any other manner except as expressly permitted in this MSA; (iii) market, sell, license, or commercially distribute the Services to third parties or use as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using the Licensed Materials as a primary source to create and/or maintain any market index, database, interface, mobile platform, or software program that the Licensee publishes or distributes or commercially provides to third parties; (iv) decompile or reverse engineer any software relating to the Services; or (v) use the Services in any manner which competes against Licensor.
- Links to Other Websites. Licensee acknowledges and agrees that Users may, through hypertext or other computer links available in the Services, elect to gain access to websites operated by individuals or entities other than Licensor. Such hyperlinks are provided for Licensee’s and its Users’ reference and convenience only and are the exclusive responsibility of the owners of each such website. Licensee agrees and acknowledges that Licensor is not responsible for the content or operation of such websites, and that Licensor shall have no liability to Licensee, Users, or any other person or entity for the use of third-party websites. Licensee and/or its Users are solely responsible for determining the extent to which Users may use any content at any other such websites. Additionally, Licensee acknowledges and agrees that such websites may be subject to different terms and conditions which may be different from this MSA and which will govern with respect to Users’ use of such websites.
- Registration and User ID Security. Some of the Services require secure login through a unique username and password (collectively, “User ID”). If Users access the Services using secure User IDs, Licensee agrees as follows (and shall compel its Users to agree) for purposes of initial registration and general User ID security: (i) as part of the registration process which may be necessary to obtain access to the Services, Licensee shall provide certain truthful registration information to Licensor (subject to all confidentiality obligations stated herein), with each registration being for a single User only; (ii) Users shall have access to the Services during the Subscription Term through the User ID, which may be used by Users to gain access to the Services only for so long as such Users are authorized to access and use the Services in accordance with the terms of this MSA or the applicable Order Form or Webpage Checkout; and (iii) Licensee agrees to treat the User ID as confidential and, as to the Users, not to disclose or share such User ID, either directly or indirectly, to any person other than as directed by Licensee or permitted by Licensor in writing. Notwithstanding anything to the contrary stated herein, Licensor shall not be liable to Licensee or any third person or entity for any loss or damage directly arising from own Licensee’s failure to comply with these security requirements. Subject to any confidentiality obligations contained herein or in an applicable Order Form or Webpage Checkout, Licensor reserves the right to monitor the use of the Services solely to ensure compliance with the terms of this MSA and to maintain and improve the provision of the Services.
2. Fees and Payment Terms
- Fees. Licensee will pay Licensor all Fees in accordance with this Section 2 and the applicable Order Form or Webpage Checkout. Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable and Fees paid are non-refundable unless this MSA or an applicable Order Form or Webpage checkout, is terminated for cause pursuant to Section 8(c), in which case any prepaid, unearned Fees will be refunded in a prorated amount. Licensee acknowledges that failure to timely pay invoiced Fees may result in loss of access to the Services.
- Invoices and Payment. Licensee shall pay Fees according to the terms of the applicable Order Form or Webpage Checkout.
- Taxes. Licensee is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from Licensor’s provision of the Services hereunder, except any taxes assessed upon Licensor’s net income or payroll. If Licensor is required to directly pay Taxes related to Licensee’s use or receipt of any Services, Licensee agrees to promptly reimburse Licensor for any amounts paid by Licensor.
3. Proprietary Rights
- Licensee Property. As between Licensee and Licensor, Licensee retains all rights, title, and interest in and to the Licensee Property. Except as expressly set out in this MSA, no right, title, or license under any Licensee Data is granted to Licensor or implied hereby, and for any Licensee Property that is licensed to Licensor, no title or ownership rights are transferred with such license.
- License to Licensor. Notwithstanding the foregoing, Licensee hereby grants Licensor a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this MSA), and royalty-free license under Licensee IPR to access and use the Licensee Data and any other Licensee Property made available to Licensor or any of its Affiliates, solely as necessary for Licensor to provide the Services to Licensee pursuant to this MSA.
- Licensor Property. As between Licensor and Licensee, Licensor retains all rights, title, and interest in and to the Licensor Property, and except as expressly set out in this MSA, no right, title, or license under any Licensor Property is granted to Licensee or implied hereby. For avoidance of doubt, the granting of any license herein does not affect the ownership of any Licensed Materials, whether tangible or intangible, and, unless expressly stated otherwise in an Order Form or Webpage Checkout, none of the Licensed Materials accessed through the Services shall be considered a “Works Made for Hire” as defined by the copyright laws of the United States.
4. Confidentiality and Data Security
- Confidentiality. During the term of this MSA and for a period of three (3) years thereafter, each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its Affiliates, officers, directors, employees, subcontractors, agents or prospective financing sources or acquirers who need to know such information in connection with this MSA and who are bound by written agreements requiring the protection of such Confidential Information.
- Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's expense, if the Disclosing Party wishes to contest the disclosure.
- Return of Confidential Information. At any time upon the request of the Disclosing Party, or in the event of termination of this MSA, the Receiving Party will return, or destroy as so directed by the Disclosing Party, all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form; provided, however, the Receiving Party shall not be required to return or destroy electronic copies that are automatically stored in accordance with Receiving Party’s generally applicable backup policies and which are not reasonably accessible by the Receiving Party (“Backup Media”). All Backup Media shall remain subject to the confidentiality obligations set forth herein, notwithstanding the expiration or termination of this MSA, so long as it remains undeleted.
- Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 4, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
- Licensee Data Security. Except as provided otherwise herein, Licensor agrees and acknowledges that it shall consider Licensee Data to be Licensee’s Confidential Information. Licensee agrees and acknowledges that Licensor may use Licensee Data only for the purposes providing, maintaining, and improving the Services to and for the Licensee. Notwithstanding the foregoing, Licensee agrees and acknowledges that Licensor will treat Licensee Data in accordance with the Licensor’s privacy statement located at: legal.cbinsights.com.
5. Warranties; Disclaimers
- Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this MSA. Licensee warrants that it will not use the Services for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party. Licensor warrants to Licensee that during the applicable Subscription Term the Services purchased by Licensee will substantially perform in all material respects with the applicable portions of the Documentation; provided however, that such warranty shall not apply to non-conformities, errors, or problems caused by acts within the control of Licensee or any of its Representatives, or arising from Licensee’s negligence or improper use of the Services, from unauthorized modifications made to the Services, from use of the Services in an unsupported manner, or from interoperability issues arising from devices or equipment or browsers used by Licensee to access the Services, or that arises from Licensee’s or any third party’s software or systems
- Disclaimer. THE LICENSED MATERIALS AVAILABLE THROUGH THE SERVICES HAVE BEEN GATHERED BY LICENSOR FROM SOURCES BELIEVED BY LICENSOR TO BE RELIABLE AND HAVE BEEN ARRANGED IN A WAY THAT LICENSOR BELIEVES WILL INCREASE THE EASE OF ACCESS, USE, AND UTILITY OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS MSA, (1) NEITHER PARTY MAKES ANY ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO THE OTHER PARTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (2) EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND (3) LICENSOR’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICES AGAIN. LICENSEE AGREES AND ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. LICENSOR DOES NOT REPRESENT OR WARRANT THAT: (I) THE SERVICES WILL MEET LICENSEE’S BUSINESS REQUIREMENTS; (II) THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM ITS USE WILL BE ACCURATE OR RELIABLE; OR (III) ALL DEFICIENCIES IN THE SERVICES CAN BE FOUND OR CORRECTED. LICENSOR WILL NOT BE RESPONSIBLE FOR: (A) LOSS OF DATA THAT IS NOT DUE TO A BREACH OF THIS MSA BY LICENSOR; (B) THE INABILITY OF LICENSEE OR ANY USER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET
- No Professional Advice. LICENSEE AGREES AND ACKNOWLEDGES THAT NONE OF THE SERVICES OR PROVISION OF LICENSED MATERIALS CONSTITUTES PROFESSIONAL ADVICE, OPINION, OR RECOMMENDATION BY LICENSOR. LICENSOR DOES NOT CLAIM TO BE AND IS NOT A BROKER, DEALER OR INVESTMENT ADVISOR AND NOTHING HEREIN SHALL CONSTITUTE A SALE OR OFFER TO BUY, SELL, OR RECOMMEND ANY SECURITIES OR COMPANIES. LICENSEE ACKNOWLEDGES THAT IT MAKES ITS OWN INVESTMENT DECISIONS BASED UPON ITS OWN DUE DILIGENCE, INVESTIGATION AND OTHER SPECIFIC INVESTMENT CRITERIA.
6. Indemnification
- Indemnification by Licensor. Licensor will defend and pay Licensee, its employees, directors and officers (the “Licensee Indemnified Parties”) from and against any and all costs, damages and expenses, including reasonable attorneys’ fees (collectively, “Losses”), suffered or incurred by any Licensee Indemnified Party, as a result of any claim brought by a third party (“Third Party Claim”) against a Licensee Indemnified Party alleging that the use of the Services in accordance with the terms and conditions of this MSA infringes any patent, copyright, trademark or trade secret right of such third party (an “Infringement Claim”). Without limiting the foregoing, in the event that the Services or any part thereof is likely to, in Licensor’s sole opinion, or do become the subject of an Infringement Claim, Licensor may, at its option and expense: (i) procure for Licensee the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non-infringing replacement for such item, or (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the MSA and any outstanding Order Forms or Webpage Checkouts and refund to Licensee Fees paid by Licensee to Licensor for the infringing items in an amount prorated to reflect the period of time between the date Licensee was unable to use the Services due to such Infringement Claim and the remaining days in the current Subscription Term. Licensor shall have no liability for any Infringement Claim arising from (1) Licensee’s use or supply to Licensor of any Licensee Property; (2) use of the Services other than in accordance with the MSA or in combination with any software, hardware, network or system not supplied by Licensor if the alleged infringement relates to such combination; (3) any modification or alteration of the Services (other than by Licensor), if the alleged infringement arises in connection with such modification or alteration; or (4) Licensee’s violation of applicable law or third party rights.
- Indemnification by Licensee. Licensee will defend and pay Licensor, its employees, directors and officers (the “Licensor Indemnified Parties”) from and against any and all Losses, suffered or incurred by any Licensor Indemnified Party, arising from any Third Party Claim against an Licensor Indemnified Party : (i) alleging that any Licensee Property or Licensee’s use of the Services beyond the license granted in this MSA violates the rights of privacy or publicity of any third party, or infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party, and/or (ii) of infringement or misappropriation excluded from Licensor’s foregoing indemnity obligations under Section 6(a).
- Indemnification Conditions. The Parties’ obligations under this Section 6 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim subject to indemnification under this Section 6, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section 6 are subject to the limitations and exclusions set forth in Section 7 below, and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable Third Party Claim.
7. Limitation of Liability
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS MSA, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM LICENSEE HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE (THE “LIABILITY CAP”), EXCEPT THAT: (I) LIABILITY ARISING OUT OF A BREACH OF THE OBLIGATIONS IN SECTION 4 (CONFIDENTIALITY AND DATA SECURITY) WILL INSTEAD BE LIMITED TO THE HIGHER LIMIT OF THREE TIMES (3X) THE LIABILITY CAP; (II) LICENSEE’S BREACH OF SECTION 1(d) SHALL BE LIMITED TO THE HIGHER LIMIT OF TEN TIMES (10X) THE LIABILITY CAP; AND (III) THE GROSS NEGLIGENCE AND WILLFUL MISCONDUCT OF EITHER PARTY WILL NOT BE LIMITED BY THE LIABILITY CAP. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS MSA FAIL OF THEIR ESSENTIAL PURPOSE.
- Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THIS MSA.
8. Term and Termination
- Term of MSA. This MSA commences on the Effective Date and shall remain in effect until terminated in accordance with Section 8(c).
- Term of Subscriptions. Licensee’s access to the purchased Services shall commence on the start date specified in the relevant Order Form or Webpage Checkout and continue for the Subscription Term specified on such Order Form or Webpage Checkout. Pricing for any renewal term may increase by up to five percent (5%) above the applicable pricing in the prior Subscription Term to the current per-unit list pricing. Except as expressly provided in an applicable Order Form, renewal of any promotional or one-time priced offerings may be priced at the certain list price in effect at the time of the applicable renewal. If Licensee purchases access to the Services through Licensor's website, Licensee's Subscription Term will automatically renew upon the last day of the then-current Term unless Licensee opts out of such renewal at least thirty (30) days prior to such date.
- Termination. Either Party may terminate this MSA and/or any Order Form or Webpage Checkout by providing written notice to the other Party in the event (i) the other Party materially breaches any of its duties, obligations or responsibilities under this MSA and fails to cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach, or provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan; (ii) a receiver, trustee, administrator, or administrative receiver is appointed for the other Party or its property; (iii) the other Party makes an assignment for the benefit of creditors; (iv) any proceedings should be commenced against the other Party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings shall not be vacated or set aside within sixty (60) days from the date of commencement thereof; or (v) the other Party is liquidated or dissolved. In addition, a Party may terminate this MSA by providing written notice to the other Party if there are no Order Forms or Webpage Checkouts in effect for more than ninety (90) days, continuously. For avoidance of doubt, neither Party may terminate this MSA or any applicable Order Form or Webpage Checkout for convenience during the Subscription Term.
- Effect of Termination. Expiration or termination of one Order Form or Webpage Checkout shall not affect any other Order Forms or Webpage Checkouts. Upon termination of this MSA for any reason or termination of a Team License in an Order Form or Webpage Checkout, Licensee shall (and shall ensure that all Users within an applicable Team License shall) immediately cease accessing and using the Services and Licensed Materials, and Licensee must delete and destroy all copies of Licensed Materials stored on Licensee systems or that is otherwise in Licensee’s possession or under Licensee’s control. Licensee may, however, retain Licensed Materials in aggregate form that is included in Work Product, articles, blogs, or other content or materials, that were created in accordance with the terms of this MSA prior to the effective date of termination. Additionally, Licensee may retain Licensed Materials which are required to be retained pursuant to regulatory or other data-retention policies.
- Surviving Provisions. The following provisions shall survive the termination or expiration of this MSA for any reason and shall remain in effect after any such termination or expiration: Sections 1(d), 2, 3(a) and (c), 4, 7, 8(d) and (e), and 9. Termination or expiration of this MSA shall not affect any obligation accrued or arising prior to such termination or expiration.
9. Miscellaneous Provisions
- Relationship. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties and Licensor will be considered an independent contractor when performing any Services hereunder.
- Licensee Affiliates. An Affiliate or parent of Licensee may purchase Services subject to the terms of this MSA by executing Order Forms with Licensor hereunder. By entering into an Order Form hereunder, the Affiliate agrees to be bound by the terms of this MSA as if it were an original party hereto.
- Entire Understanding. This MSA (including all Exhibits and Order Forms or Webpage Checkouts, all of which are incorporated herein by reference) constitutes the entire agreement between the Parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this MSA. To the extent of any conflict or inconsistency between the provisions in the body of this MSA and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Licensee purchase order or in any other ordering documentation (excluding Order Forms) are hereby rejected. Such terms will not be deemed incorporated into or form any part of this MSA, and all such terms or conditions are null and void.
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Licensee, Section 1(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Modification; Waiver and Cumulative Remedies. Except for Licensor’s modification or update of the Services, or any policies as necessary to comply with applicable law, rules, regulations, no modification of this MSA, and no waiver of any breach of this MSA or right under this MSA, is legally binding against the other Party unless in writing and signed or electronically accepted by both Parties. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
- Arbitration; Governing Law; Venue. The parties hereto agree that any dispute, claim or controversy arising out of or relating to this MSA or the breach, termination, enforcement, interpretation or validity hereof or thereof, including the determination of the scope or applicability of this MSA to arbitrate, shall be determined by final and binding arbitration in New York City, New York (except for an action for interim equitable relief otherwise permitted under this MSA and/or unless otherwise agreed by the parties), before a sole arbitrator, in accordance with the laws of the State of New York for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and Procedures; provided, however, if the Parties mutually elect, the arbitration can be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures instead of its Comprehensive Arbitration Rules and Procedures. The arbitrator’s decision shall be reduced to writing, signed by the arbitrator, and mailed to each of the parties and their legal counsel. All decisions of the arbitrator shall be final, binding and conclusive on the parties. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a decision in accordance with applicable law in any court having jurisdiction thereof. The Parties will pay their own costs (including, without limitation, attorneys’ fees) and expenses in connection with such arbitration.
- Publicity. Any press release developed by a Party regarding this MSA shall be subject to the prior written consent of the other Party. Licensor may identify Licensee as a user of the Services by referencing Licensee’s name and logo, provided that such reference is consistent with Licensee’s generally applicable branding guidelines and that Licensor will cease making such references after receiving written notice from Licensee to do so.
- Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, Licensor may assign this MSA in its entirety, together with all rights and obligations hereunder, without consent of Licensee, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this MSA. Any attempt by a Party to assign its rights or obligations under this MSA in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
- Notices. All notices under this MSA shall be in writing and shall be delivered to the emails or addresses first set forth in the Order Form(s) or Webpage Checkout(s), as applicable. Either Party may change its address for notice by giving notice of such address change in the manner provided herein. All communications and notices to be made or given pursuant to this MSA shall be in the English language.
- Anti-Corruption. Licensee acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any Licensor employees, agent or representative in connection with this MSA, other than reasonable gifts and entertainment provided in the ordinary course of business. Licensee will promptly notify Licensor if it offers or receives any such improper payment or transfer in connection with this MSA.
- Severability. If any provision of this MSA is held by a court of competent jurisdiction to be contrary to law, 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 MSA shall remain in effect
- “Affiliate” of a Party means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity (and the correlative terms, “controlled by” and “under common control with”) means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.
- “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed, including pricing and other terms set forth in an Order Form or Webpage Checkout. The Licensor Property shall constitute Licensor’s Confidential Information regardless of the means or manner by which it is disclosed. Licensee Data shall constitute Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information that a Receiving Party can show: (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; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
- “License” means a current and valid license to access or use the Services, and which may include, but is not limited to, purchased subscription to the Services for one or more Users associated with a Team License, or any other valid and authorized right/license as permitted by Licensor.
- “Licensed Materials” means all content and data and reports, including without limitation, metrics, calculations, text, research, ratings, rankings, opinions, photographs, video, audio, graphics, tools, analytics, functionality, products and information displayed and/or otherwise provided by the Services.
- “Licensee Data” means, other than the Utilization Data, all data or information submitted, electronic or otherwise, by or on behalf of Licensee to the Services and/or to Licensor.
- “Licensee Property” means (i) the Licensee Data, and (ii) all patent, copyright, trade secret or other intellectual property rights embodied in or related to any of the foregoing (the “Licensee IPR”).
- “Documentation” means all documentation and other instructional material, if applicable, made available by Licensor regarding the use of the Services.
- “Fees” means all fees specified in or otherwise incurred pursuant to an Order Form or Webpage Checkout.
- “Licensor Property” means (i) the Services, (ii) all Licensed Materials supplied by Licensor in connection with, or used by Licensor in providing, any of the foregoing, and (iii) all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to any of the foregoing. For clarity, Licensor Property includes Utilization Data and any information, data, or other content derived from Licensor’s authorized monitoring of any User’s access to or use of the Services but does not include Licensee Data.
- “Order Form” means an ordering document for Services purchased from Licensor that has been executed hereunder by the Parties, including without limitation any attached or associated statement of work.
- “Representatives” means with respect to any individual and/or the entity on whose behalf such individual is entering into a commercial agreement with Licensor, all users, employees, agents, subcontractors and other representatives of such individual or entity (as applicable).
- “Services” means any of the paid or trial subscriptions to various online, web-based applications, software services, data feeds or data delivery materials, application programming interface (“API”), data downloads and plugins as well as certain standalone or recurring research services or reports provided by CB Insights directly or via certain websites owned and operated by Licensor, as well as (i) the Licensed Materials contained therein, and (ii) any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.
- “Subscription Term” means the subscription period set forth in the applicable Order Form or Webpage Checkout during which Licensor agrees to provide the Services to Licensee.
- “Team License” means a License specifically for a defined number of individual Users within or among the designated Business Group(s) (as defined herein) who typically work closely together on a daily basis and are part of the same immediate chain-of-command. Individuals who only periodically work together or tangentially support the designated Business Group may not be considered Users under a Team License and must be part of their own, separate License.
- “User” means a person directly affiliated with Licensee who has an email address with Licensee’s organization and is the recipient of the Services.
- “Utilization Data” means data and information related to Licensee’s use of the Services that is used by Licensor in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
- "Webpage Checkout" means an ordering document for Services purchased through a self-service checkout process through Licensor's website.
Effective March 3rd 2023 to March 16th 2023
DownloadTable of Contents
This master subscription agreement, ("MSA") which may include any relevant ordering documents and exhibits (collectively, “Agreement”), is made by and between CB Information Services, Inc., a corporation validly existing under the laws of Delaware (“CB Insights” or “Licensor”) and the specific person or entity identified as the licensee or customer or party thereto in the associated agreement, ordering document, or purchase order (“Licensee” or “You”). Licensee and Licensor may be collectively referred to as the “Parties” or individually as a “Party.” This MSA governs Your purchase and use of the Services and Licensed Materials (as defined herein, respectively) and shall be effective at the time and in the manner as described herein (“Effective Date”). CB Insights may amend this MSA at any time by posting a revised version on legal.cbinsights.com. Each revised version will state its effective date, which will be on or after the date posted by CB Insights. If the revised version materially reduces Your rights under this MSA, CB Insights will send notice to the email address it has on file, and request acceptance of the materially changed version. Otherwise, Your continued use of the Services after the effective date of a non-materially revised version of this MSA constitutes your acceptance of the terms.
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Services
- Provision of Services. Subject to the payment of all applicable Fees and for the applicable Subscription Term, Licensor hereby grants to Licensee a non-sublicensable, non-transferable (except as provided herein), non-exclusive right and limited license to use the Services and access the Licensed Materials, in accordance with the terms and conditions of this MSA and all Order Forms or Webpage Checkouts, as applicable. Licensor reserves the right to revise or discontinue certain features or content of the Services if, in Licensor’s sole discretion, such action is necessary for the provision of the Services or such features or content are minor and not disruptive to the overall use of the Services. Licensee further agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Licensor regarding future functionality or features.
- Order Forms and Webpage Checkouts. Each Order Form and Webpage Checkout for Services will describe the License, as well as additional mutually agreed-upon limitations on use of the Services, including, to the extent applicable, Fees, the Subscription Term, the number of and/or class of permitted Users and the permitted scope of use of the Services. The number of authorized, individual Users that shall have access to the Services pursuant to a License is limited to individuals that are part of one or more designated business department(s) or functional group(s) within the Licensee’s organization (“Business Group”). The Order Form will specifically identify and list the particular Business Group and total number of authorized Users (“User Limit”). For each License, only Users who are a member of the designated Business Group may access the Services. For Services purchased through an Order Form, Licensee may occasionally switch Users under a License, provided that (i) the number of Users does not exceed the User Limit, and (ii) new Users are members of the same Business Group designated as such in the applicable Order Form. Violation of the restrictions set forth herein, which shall include sharing User accounts with any unauthorized individuals, will be considered a material breach by Licensee. Unless expressly referenced otherwise in an Order Form or Webpage Checkout, the rights granted in a License are granted only to Licensee, and do not extend to Licensee’s shareholders, parents, subsidiaries, affiliates or other related entities or individuals not included in the definition of Licensee on the Order Form or Webpage Checkout. Such related affiliates must execute a separate Order Form or Webpage Checkout in order to use the Services and Licensed Materials.
- Authorized Use. Except as expressly stated otherwise herein or in an applicable Order Form or Webpage Checkout, Users may access the Services and use the Licensed Materials only for the Licensee’s internal business activities and may store Licensed Materials on computers or devices or locations owned by or under its control (which may include commercial cloud storage). Users may also extract, quote, and/or distribute limited selections of Licensed Materials in work product for distribution throughout Licensee’s organizations to support any of Licensee’s businesses (“Work Product”). From time to time, Licensee and its Users may also excerpt and distribute limited, insubstantial portions of Licensed Materials (in electronic form or hard copies) to third parties to support any of Licensee’s businesses, provided that any publicly available Licensed Materials shall be conspicuously attributed to Licensor, using the phrase, “SOURCE: CB INSIGHTS” or such other similar language. Notwithstanding the foregoing, to the extent Licensee receives any Licensed Materials through a Licensor API or other direct data feed, Licensee agrees it may only use such retrieved Licensed Materials for internal purposes and may not distribute such received Licensed Materials to any third parties.
- Limitations. Licensee shall not, and shall cause its Users to not: (i) distribute Licensed Materials to a third-party in any quantity or manner that would serve as a substitute for the purchase of a subscription to the Services or Licensed Materials by the recipient; (ii) use the Services in a manner contrary to or in violation of any applicable laws or in any other manner except as expressly permitted in this MSA; (iii) market, sell, license, or commercially distribute the Services to third parties or use as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using the Licensed Materials as a primary source to create and/or maintain any market index, database, interface, mobile platform, or software program that the Licensee publishes or distributes or commercially provides to third parties; (iv) decompile or reverse engineer any software relating to the Services; or (v) use the Services in any manner which competes against Licensor.
- Links to Other Websites. Licensee acknowledges and agrees that Users may, through hypertext or other computer links available in the Services, elect to gain access to websites operated by individuals or entities other than Licensor. Such hyperlinks are provided for Licensee’s and its Users’ reference and convenience only and are the exclusive responsibility of the owners of each such website. Licensee agrees and acknowledges that Licensor is not responsible for the content or operation of such websites, and that Licensor shall have no liability to Licensee, Users, or any other person or entity for the use of third-party websites. Licensee and/or its Users are solely responsible for determining the extent to which Users may use any content at any other such websites. Additionally, Licensee acknowledges and agrees that such websites may be subject to different terms and conditions which may be different from this MSA and which will govern with respect to Users’ use of such websites.
- Registration and User ID Security. Some of the Services require secure login through a unique username and password (collectively, “User ID”). If Users access the Services using secure User IDs, Licensee agrees as follows (and shall compel its Users to agree) for purposes of initial registration and general User ID security: (i) as part of the registration process which may be necessary to obtain access to the Services, Licensee shall provide certain truthful registration information to Licensor (subject to all confidentiality obligations stated herein), with each registration being for a single User only; (ii) Users shall have access to the Services during the Subscription Term through the User ID, which may be used by Users to gain access to the Services only for so long as such Users are authorized to access and use the Services in accordance with the terms of this MSA or the applicable Order Form or Webpage Checkout; and (iii) Licensee agrees to treat the User ID as confidential and, as to the Users, not to disclose or share such User ID, either directly or indirectly, to any person other than as directed by Licensee or permitted by Licensor in writing. Notwithstanding anything to the contrary stated herein, Licensor shall not be liable to Licensee or any third person or entity for any loss or damage directly arising from own Licensee’s failure to comply with these security requirements. Subject to any confidentiality obligations contained herein or in an applicable Order Form or Webpage Checkout, Licensor reserves the right to monitor the use of the Services solely to ensure compliance with the terms of this MSA and to maintain and improve the provision of the Services.
2. Fees and Payment Terms
- Fees. Licensee will pay Licensor all Fees in accordance with this Section 2 and the applicable Order Form or Webpage Checkout. Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable and Fees paid are non-refundable unless this MSA or an applicable Order Form or Webpage checkout, is terminated for cause pursuant to Section 8(c), in which case any prepaid, unearned Fees will be refunded in a prorated amount. Licensee acknowledges that failure to timely pay invoiced Fees may result in loss of access to the Services.
- Invoices and Payment. Licensee shall pay Fees according to the terms of the applicable Order Form or Webpage Checkout.
- Taxes. Licensee is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from Licensor’s provision of the Services hereunder, except any taxes assessed upon Licensor’s net income or payroll. If Licensor is required to directly pay Taxes related to Licensee’s use or receipt of any Services, Licensee agrees to promptly reimburse Licensor for any amounts paid by Licensor.
3. Proprietary Rights
- Licensee Property. As between Licensee and Licensor, Licensee retains all rights, title, and interest in and to the Licensee Property. Except as expressly set out in this MSA, no right, title, or license under any Licensee Data is granted to Licensor or implied hereby, and for any Licensee Property that is licensed to Licensor, no title or ownership rights are transferred with such license.
- License to Licensor. Notwithstanding the foregoing, Licensee hereby grants Licensor a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this MSA), and royalty-free license under Licensee IPR to access and use the Licensee Data and any other Licensee Property made available to Licensor or any of its Affiliates, solely as necessary for Licensor to provide the Services to Licensee pursuant to this MSA.
- Licensor Property. As between Licensor and Licensee, Licensor retains all rights, title, and interest in and to the Licensor Property, and except as expressly set out in this MSA, no right, title, or license under any Licensor Property is granted to Licensee or implied hereby. For avoidance of doubt, the granting of any license herein does not affect the ownership of any Licensed Materials, whether tangible or intangible, and, unless expressly stated otherwise in an Order Form or Webpage Checkout, none of the Licensed Materials accessed through the Services shall be considered a “Works Made for Hire” as defined by the copyright laws of the United States.
4. Confidentiality and Data Security
- Confidentiality. During the term of this MSA and for a period of three (3) years thereafter, each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its Affiliates, officers, directors, employees, subcontractors, agents or prospective financing sources or acquirers who need to know such information in connection with this MSA and who are bound by written agreements requiring the protection of such Confidential Information.
- Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's expense, if the Disclosing Party wishes to contest the disclosure.
- Return of Confidential Information. At any time upon the request of the Disclosing Party, or in the event of termination of this MSA, the Receiving Party will return, or destroy as so directed by the Disclosing Party, all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form; provided, however, the Receiving Party shall not be required to return or destroy electronic copies that are automatically stored in accordance with Receiving Party’s generally applicable backup policies and which are not reasonably accessible by the Receiving Party (“Backup Media”). All Backup Media shall remain subject to the confidentiality obligations set forth herein, notwithstanding the expiration or termination of this MSA, so long as it remains undeleted.
- Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 4, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
- Licensee Data Security. Except as provided otherwise herein, Licensor agrees and acknowledges that it shall consider Licensee Data to be Licensee’s Confidential Information. Licensee agrees and acknowledges that Licensor may use Licensee Data only for the purposes providing, maintaining, and improving the Services to and for the Licensee. Notwithstanding the foregoing, Licensee agrees and acknowledges that Licensor will treat Licensee Data in accordance with the Licensor’s privacy statement located at: https://www.cbinsights.com/privacy-policy.
5. Warranties; Disclaimers
- Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this MSA. Licensee warrants that it will not use the Services for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party. Licensor warrants to Licensee that during the applicable Subscription Term the Services purchased by Licensee will substantially perform in all material respects with the applicable portions of the Documentation; provided however, that such warranty shall not apply to non-conformities, errors, or problems caused by acts within the control of Licensee or any of its Representatives, or arising from Licensee’s negligence or improper use of the Services, from unauthorized modifications made to the Services, from use of the Services in an unsupported manner, or from interoperability issues arising from devices or equipment or browsers used by Licensee to access the Services, or that arises from Licensee’s or any third party’s software or systems
- Disclaimer. THE LICENSED MATERIALS AVAILABLE THROUGH THE SERVICES HAVE BEEN GATHERED BY LICENSOR FROM SOURCES BELIEVED BY LICENSOR TO BE RELIABLE AND HAVE BEEN ARRANGED IN A WAY THAT LICENSOR BELIEVES WILL INCREASE THE EASE OF ACCESS, USE, AND UTILITY OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS MSA, (1) NEITHER PARTY MAKES ANY ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO THE OTHER PARTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (2) EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND (3) LICENSOR’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICES AGAIN. LICENSEE AGREES AND ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. LICENSOR DOES NOT REPRESENT OR WARRANT THAT: (I) THE SERVICES WILL MEET LICENSEE’S BUSINESS REQUIREMENTS; (II) THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM ITS USE WILL BE ACCURATE OR RELIABLE; OR (III) ALL DEFICIENCIES IN THE SERVICES CAN BE FOUND OR CORRECTED. LICENSOR WILL NOT BE RESPONSIBLE FOR: (A) LOSS OF DATA THAT IS NOT DUE TO A BREACH OF THIS MSA BY LICENSOR; (B) THE INABILITY OF LICENSEE OR ANY USER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET
- No Professional Advice. LICENSEE AGREES AND ACKNOWLEDGES THAT NONE OF THE SERVICES OR PROVISION OF LICENSED MATERIALS CONSTITUTES PROFESSIONAL ADVICE, OPINION, OR RECOMMENDATION BY LICENSOR. LICENSOR DOES NOT CLAIM TO BE AND IS NOT A BROKER, DEALER OR INVESTMENT ADVISOR AND NOTHING HEREIN SHALL CONSTITUTE A SALE OR OFFER TO BUY, SELL, OR RECOMMEND ANY SECURITIES OR COMPANIES. LICENSEE ACKNOWLEDGES THAT IT MAKES ITS OWN INVESTMENT DECISIONS BASED UPON ITS OWN DUE DILIGENCE, INVESTIGATION AND OTHER SPECIFIC INVESTMENT CRITERIA.
6. Indemnification
- Indemnification by Licensor. Licensor will defend and pay Licensee, its employees, directors and officers (the “Licensee Indemnified Parties”) from and against any and all costs, damages and expenses, including reasonable attorneys’ fees (collectively, “Losses”), suffered or incurred by any Licensee Indemnified Party, as a result of any claim brought by a third party (“Third Party Claim”) against a Licensee Indemnified Party alleging that the use of the Services in accordance with the terms and conditions of this MSA infringes any patent, copyright, trademark or trade secret right of such third party (an “Infringement Claim”). Without limiting the foregoing, in the event that the Services or any part thereof is likely to, in Licensor’s sole opinion, or do become the subject of an Infringement Claim, Licensor may, at its option and expense: (i) procure for Licensee the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non-infringing replacement for such item, or (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the MSA and any outstanding Order Forms or Webpage Checkouts and refund to Licensee Fees paid by Licensee to Licensor for the infringing items in an amount prorated to reflect the period of time between the date Licensee was unable to use the Services due to such Infringement Claim and the remaining days in the current Subscription Term. Licensor shall have no liability for any Infringement Claim arising from (1) Licensee’s use or supply to Licensor of any Licensee Property; (2) use of the Services other than in accordance with the MSA or in combination with any software, hardware, network or system not supplied by Licensor if the alleged infringement relates to such combination; (3) any modification or alteration of the Services (other than by Licensor), if the alleged infringement arises in connection with such modification or alteration; or (4) Licensee’s violation of applicable law or third party rights.
- Indemnification by Licensee. Licensee will defend and pay Licensor, its employees, directors and officers (the “Licensor Indemnified Parties”) from and against any and all Losses, suffered or incurred by any Licensor Indemnified Party, arising from any Third Party Claim against an Licensor Indemnified Party : (i) alleging that any Licensee Property or Licensee’s use of the Services beyond the license granted in this MSA violates the rights of privacy or publicity of any third party, or infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party, and/or (ii) of infringement or misappropriation excluded from Licensor’s foregoing indemnity obligations under Section 6(a).
- Indemnification Conditions. The Parties’ obligations under this Section 6 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim subject to indemnification under this Section 6, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section 6 are subject to the limitations and exclusions set forth in Section 7 below, and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable Third Party Claim.
7. Limitation of Liability
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS MSA, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM LICENSEE HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE (THE “LIABILITY CAP”), EXCEPT THAT: (I) LIABILITY ARISING OUT OF A BREACH OF THE OBLIGATIONS IN SECTION 4 (CONFIDENTIALITY AND DATA SECURITY) WILL INSTEAD BE LIMITED TO THE HIGHER LIMIT OF THREE TIMES (3X) THE LIABILITY CAP; (II) LICENSEE’S BREACH OF SECTION 1(d) SHALL BE LIMITED TO THE HIGHER LIMIT OF TEN TIMES (10X) THE LIABILITY CAP; AND (III) THE GROSS NEGLIGENCE AND WILLFUL MISCONDUCT OF EITHER PARTY WILL NOT BE LIMITED BY THE LIABILITY CAP. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS MSA FAIL OF THEIR ESSENTIAL PURPOSE.
- Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THIS MSA.
8. Term and Termination
- Term of MSA. This MSA commences on the Effective Date and shall remain in effect until terminated in accordance with Section 8(c).
- Term of Subscriptions. Licensee’s access to the purchased Services shall commence on the start date specified in the relevant Order Form or Webpage Checkout and continue for the Subscription Term specified on such Order Form or Webpage Checkout. Pricing for any renewal term may increase by up to five percent (5%) above the applicable pricing in the prior Subscription Term to the current per-unit list pricing. Except as expressly provided in an applicable Order Form, renewal of any promotional or one-time priced offerings may be priced at the certain list price in effect at the time of the applicable renewal. If Licensee purchases access to the Services through Licensor's website, Licensee's Subscription Term will automatically renew upon the last day of the then-current Term unless Licensee opts out of such renewal at least thirty (30) days prior to such date.
- Termination. Either Party may terminate this MSA and/or any Order Form or Webpage Checkout by providing written notice to the other Party in the event (i) the other Party materially breaches any of its duties, obligations or responsibilities under this MSA and fails to cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach, or provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan; (ii) a receiver, trustee, administrator, or administrative receiver is appointed for the other Party or its property; (iii) the other Party makes an assignment for the benefit of creditors; (iv) any proceedings should be commenced against the other Party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings shall not be vacated or set aside within sixty (60) days from the date of commencement thereof; or (v) the other Party is liquidated or dissolved. In addition, a Party may terminate this MSA by providing written notice to the other Party if there are no Order Forms or Webpage Checkouts in effect for more than ninety (90) days, continuously. For avoidance of doubt, neither Party may terminate this MSA or any applicable Order Form or Webpage Checkout for convenience during the Subscription Term.
- Effect of Termination. Expiration or termination of one Order Form or Webpage Checkout shall not affect any other Order Forms or Webpage Checkouts. Upon termination of this MSA for any reason or termination of a Team License in an Order Form or Webpage Checkout, Licensee shall (and shall ensure that all Users within an applicable Team License shall) immediately cease accessing and using the Services and Licensed Materials, and Licensee must delete and destroy all copies of Licensed Materials stored on Licensee systems or that is otherwise in Licensee’s possession or under Licensee’s control. Licensee may, however, retain Licensed Materials in aggregate form that is included in Work Product, articles, blogs, or other content or materials, that were created in accordance with the terms of this MSA prior to the effective date of termination. Additionally, Licensee may retain Licensed Materials which are required to be retained pursuant to regulatory or other data-retention policies.
- Surviving Provisions. The following provisions shall survive the termination or expiration of this MSA for any reason and shall remain in effect after any such termination or expiration: Sections 1(d), 2, 3(a) and (c), 4, 7, 8(d) and (e), and 9. Termination or expiration of this MSA shall not affect any obligation accrued or arising prior to such termination or expiration.
9. Miscellaneous Provisions
- Relationship. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties and Licensor will be considered an independent contractor when performing any Services hereunder.
- Licensee Affiliates. An Affiliate or parent of Licensee may purchase Services subject to the terms of this MSA by executing Order Forms with Licensor hereunder. By entering into an Order Form hereunder, the Affiliate agrees to be bound by the terms of this MSA as if it were an original party hereto.
- Entire Understanding. This MSA (including all Exhibits and Order Forms or Webpage Checkouts, all of which are incorporated herein by reference) constitutes the entire agreement between the Parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this MSA. To the extent of any conflict or inconsistency between the provisions in the body of this MSA and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Licensee purchase order or in any other ordering documentation (excluding Order Forms) are hereby rejected. Such terms will not be deemed incorporated into or form any part of this MSA, and all such terms or conditions are null and void.
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Licensee, Section 1(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Modification; Waiver and Cumulative Remedies. Except for Licensor’s modification or update of the Services, or any policies as necessary to comply with applicable law, rules, regulations, no modification of this MSA, and no waiver of any breach of this MSA or right under this MSA, is legally binding against the other Party unless in writing and signed or electronically accepted by both Parties. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
- Arbitration; Governing Law; Venue. The parties hereto agree that any dispute, claim or controversy arising out of or relating to this MSA or the breach, termination, enforcement, interpretation or validity hereof or thereof, including the determination of the scope or applicability of this MSA to arbitrate, shall be determined by final and binding arbitration in New York City, New York (except for an action for interim equitable relief otherwise permitted under this MSA and/or unless otherwise agreed by the parties), before a sole arbitrator, in accordance with the laws of the State of New York for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and Procedures; provided, however, if the Parties mutually elect, the arbitration can be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures instead of its Comprehensive Arbitration Rules and Procedures. The arbitrator’s decision shall be reduced to writing, signed by the arbitrator, and mailed to each of the parties and their legal counsel. All decisions of the arbitrator shall be final, binding and conclusive on the parties. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a decision in accordance with applicable law in any court having jurisdiction thereof. The Parties will pay their own costs (including, without limitation, attorneys’ fees) and expenses in connection with such arbitration.
- Publicity. Any press release developed by a Party regarding this MSA shall be subject to the prior written consent of the other Party. Licensor may identify Licensee as a user of the Services by referencing Licensee’s name and logo, provided that such reference is consistent with Licensee’s generally applicable branding guidelines and that Licensor will cease making such references after receiving written notice from Licensee to do so.
- Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, Licensor may assign this MSA in its entirety, together with all rights and obligations hereunder, without consent of Licensee, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this MSA. Any attempt by a Party to assign its rights or obligations under this MSA in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
- Notices. All notices under this MSA shall be in writing and shall be delivered to the emails or addresses first set forth in the Order Form(s) or Webpage Checkout(s), as applicable. Either Party may change its address for notice by giving notice of such address change in the manner provided herein. All communications and notices to be made or given pursuant to this MSA shall be in the English language.
- Anti-Corruption. Licensee acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any Licensor employees, agent or representative in connection with this MSA, other than reasonable gifts and entertainment provided in the ordinary course of business. Licensee will promptly notify Licensor if it offers or receives any such improper payment or transfer in connection with this MSA.
- Severability. If any provision of this MSA is held by a court of competent jurisdiction to be contrary to law, 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 MSA shall remain in effect
- “Affiliate” of a Party means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity (and the correlative terms, “controlled by” and “under common control with”) means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.
- “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed, including pricing and other terms set forth in an Order Form or Webpage Checkout. The Licensor Property shall constitute Licensor’s Confidential Information regardless of the means or manner by which it is disclosed. Licensee Data shall constitute Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information that a Receiving Party can show: (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; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
- “License” means a current and valid license to access or use the Services, and which may include, but is not limited to, purchased subscription to the Services for one or more Users associated with a Team License, or any other valid and authorized right/license as permitted by Licensor.
- “Licensed Materials” means all content and data and reports, including without limitation, metrics, calculations, text, research, ratings, rankings, opinions, photographs, video, audio, graphics, tools, analytics, functionality, products and information displayed and/or otherwise provided by the Services.
- “Licensee Data” means, other than the Utilization Data, all data or information submitted, electronic or otherwise, by or on behalf of Licensee to the Services and/or to Licensor.
- “Licensee Property” means (i) the Licensee Data, and (ii) all patent, copyright, trade secret or other intellectual property rights embodied in or related to any of the foregoing (the “Licensee IPR”).
- “Documentation” means all documentation and other instructional material, if applicable, made available by Licensor regarding the use of the Services.
- “Fees” means all fees specified in or otherwise incurred pursuant to an Order Form or Webpage Checkout.
- “Licensor Property” means (i) the Services, (ii) all Licensed Materials supplied by Licensor in connection with, or used by Licensor in providing, any of the foregoing, and (iii) all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to any of the foregoing. For clarity, Licensor Property includes Utilization Data and any information, data, or other content derived from Licensor’s authorized monitoring of any User’s access to or use of the Services but does not include Licensee Data.
- “Order Form” means an ordering document for Services purchased from Licensor that has been executed hereunder by the Parties, including without limitation any attached or associated statement of work.
- “Representatives” means with respect to any individual and/or the entity on whose behalf such individual is entering into a commercial agreement with Licensor, all users, employees, agents, subcontractors and other representatives of such individual or entity (as applicable).
- “Services” means any of the paid or trial subscriptions to various online, web-based applications, software services, data feeds or data delivery materials, application programming interface (“API”), data downloads and plugins as well as certain standalone or recurring research services or reports provided by CB Insights directly or via certain websites owned and operated by Licensor, as well as (i) the Licensed Materials contained therein, and (ii) any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.
- “Subscription Term” means the subscription period set forth in the applicable Order Form or Webpage Checkout during which Licensor agrees to provide the Services to Licensee.
- “Team License” means a License specifically for a defined number of individual Users within or among the designated Business Group(s) (as defined herein) who typically work closely together on a daily basis and are part of the same immediate chain-of-command. Individuals who only periodically work together or tangentially support the designated Business Group may not be considered Users under a Team License and must be part of their own, separate License.
- “User” means a person directly affiliated with Licensee who has an email address with Licensee’s organization and is the recipient of the Services.
- “Utilization Data” means data and information related to Licensee’s use of the Services that is used by Licensor in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
- "Webpage Checkout" means an ordering document for Services purchased through a self-service checkout process through Licensor's website.
Effective March 1st 2023 to March 3rd 2023
DownloadTable of Contents
This master subscription agreement, ("MSA") which may include any relevant ordering documents (collectively, “Agreement”), is made by and between CB Information Services, Inc., a corporation validly existing under the laws of Delaware (“CB Insights” or “Licensor”) and the specific person or entity identified as the licensee or customer or party thereto in the associated agreement, ordering document, or purchase order (“Licensee” or “You”). Licensee and Licensor may be collectively referred to as the “Parties” or individually as a “Party.” This MSA governs Your purchase and use of the Services and Licensed Materials (as defined herein, respectively) and shall be effective at the time and in the manner as described herein (“Effective Date”). CB Insights may amend this MSA at any time by posting a revised version on legal.cbinsights.com. Each revised version will state its effective date, which will be on or after the date posted by CB Insights. If the revised version materially reduces Your rights under this MSA, CB Insights will send notice to the email address it has on file, and request acceptance of the materially changed version. Otherwise, Your continued use of the Services after the effective date of a non-materially revised version of this MSA constitutes your acceptance of the terms.
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Services
- Provision of Services. Subject to the payment of all applicable Fees and for the applicable Subscription Term, Licensor hereby grants to Licensee a non-sublicensable, non-transferable (except as provided herein), non-exclusive right and limited license to use the Services and access the Licensed Materials, in accordance with the terms and conditions of this MSA and all Order Forms. Licensor reserves the right to revise or discontinue certain features or content of the Services if, in Licensor’s sole discretion, such action is necessary for the provision of the Services or such features or content are minor and not disruptive to the overall use of the Services. Licensee further agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Licensor regarding future functionality or features.
- Order Forms. Each Order Form for Services will describe the License, as well as additional mutually agreed-upon limitations on use of the Services, including, to the extent applicable, Fees, the Subscription Term, the number of and/or class of permitted Users and the permitted scope of use of the Services. The number of authorized, individual Users that shall have access to the Services pursuant to a License is limited to individuals that are part of one or more designated business department(s) or functional group(s) within the Licensee’s organization (“Business Group”). The applicable Order Form will specifically identify and list the particular Business Group and total number of authorized Users (“User Limit”). For each License, only Users who are a member of the designated Business Group may access the Services. Licensee may occasionally switch Users under a License, provided that (i) the number of Users does not exceed the User Limit, and (ii) new Users are members of the same Business Group designated as such in the applicable Order Form. Violation of the restrictions set forth herein, which shall include sharing User accounts with any unauthorized individuals, will be considered a material breach by Licensee. Unless expressly referenced otherwise in an Order Form, the rights granted in a License are granted only to Licensee, and do not extend to Licensee’s shareholders, parents, subsidiaries, affiliates or other related entities or individuals not included in the definition of Licensee on the Order Form. Such related affiliates must execute a separate Order Form in order to use the Services and Licensed Materials.
- Authorized Use. Except as expressly stated otherwise herein or in an applicable Order Form, Users may access the Services and use the Licensed Materials only for the Licensee’s internal business activities and may store Licensed Materials on computers or devices or locations owned by or under its control (which may include commercial cloud storage). Users may also extract, quote, and/or distribute limited selections of Licensed Materials in work product for distribution throughout Licensee’s organizations to support any of Licensee’s businesses (“Work Product”). From time to time, Licensee and its Users may also excerpt and distribute limited, insubstantial portions of Licensed Materials (in electronic form or hard copies) to third parties to support any of Licensee’s businesses, provided that any publicly available Licensed Materials shall be conspicuously attributed to Licensor, using the phrase, “SOURCE: CB INSIGHTS” or such other similar language. Notwithstanding the foregoing, to the extent Licensee receives any Licensed Materials through a Licensor API or other direct data feed, Licensee agrees it may only use such retrieved Licensed Materials for internal purposes and may not distribute such received Licensed Materials to any third parties.
- Limitations. Licensee shall not, and shall cause its Users to not: (i) distribute Licensed Materials to a third-party in any quantity or manner that would serve as a substitute for the purchase of a subscription to the Services or Licensed Materials by the recipient; (ii) use the Services in a manner contrary to or in violation of any applicable laws or in any other manner except as expressly permitted in this MSA; (iii) market, sell, license, or commercially distribute the Services to third parties or use as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using the Licensed Materials as a primary source to create and/or maintain any market index, database, interface, mobile platform, or software program that the Licensee publishes or distributes or commercially provides to third parties; (iv) decompile or reverse engineer any software relating to the Services; or (v) use the Services in any manner which competes against Licensor.
- Links to Other Websites. Licensee acknowledges and agrees that Users may, through hypertext or other computer links available in the Services, elect to gain access to websites operated by individuals or entities other than Licensor. Such hyperlinks are provided for Licensee’s and its Users’ reference and convenience only and are the exclusive responsibility of the owners of each such website. Licensee agrees and acknowledges that Licensor is not responsible for the content or operation of such websites, and that Licensor shall have no liability to Licensee, Users, or any other person or entity for the use of third-party websites. Licensee and/or its Users are solely responsible for determining the extent to which Users may use any content at any other such websites. Additionally, Licensee acknowledges and agrees that such websites may be subject to different terms and conditions which may be different from this MSA and which will govern with respect to Users’ use of such websites.
- Registration and User ID Security. Some of the Services require secure login through a unique username and password (collectively, “User ID”). If Users access the Services using secure User IDs, Licensee agrees as follows (and shall compel its Users to agree) for purposes of initial registration and general User ID security: (i) as part of the registration process which may be necessary to obtain access to the Services, Licensee shall provide certain truthful registration information to Licensor (subject to all confidentiality obligations stated herein), with each registration being for a single User only; (ii) Users shall have access to the Services during the Subscription Term through the User ID, which may be used by Users to gain access to the Services only for so long as such Users are authorized to access and use the Services in accordance with the terms of this MSA or the applicable Order Form; and (iii) Licensee agrees to treat the User ID as confidential and, as to the Users, not to disclose or share such User ID, either directly or indirectly, to any person other than as directed by Licensee or permitted by Licensor in writing. Notwithstanding anything to the contrary stated herein, Licensor shall not be liable to Licensee or any third person or entity for any loss or damage directly arising from own Licensee’s failure to comply with these security requirements. Subject to any confidentiality obligations contained herein or in an applicable Order Form, Licensor reserves the right to monitor the use of the Services solely to ensure compliance with the terms of this MSA and to maintain and improve the provision of the Services.
2. Fees and Payment Terms
- Fees. Licensee will pay Licensor all Fees in accordance with this Section 2 and the applicable Order Form. Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable and Fees paid are non-refundable unless this MSA or an applicable Order Form is terminated for cause pursuant to Section 8(c), in which case any prepaid, unearned Fees will be refunded in a prorated amount. Licensee acknowledges that failure to timely pay invoiced Fees may result in loss of access to the Services.
- Invoices and Payment. Licensee shall pay Fees according to the terms of the applicable Order Form.
- Taxes. Licensee is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from Licensor’s provision of the Services hereunder, except any taxes assessed upon Licensor’s net income or payroll. If Licensor is required to directly pay Taxes related to Licensee’s use or receipt of any Services, Licensee agrees to promptly reimburse Licensor for any amounts paid by Licensor.
3. Proprietary Rights
- Licensee Property. As between Licensee and Licensor, Licensee retains all rights, title, and interest in and to the Licensee Property. Except as expressly set out in this MSA, no right, title, or license under any Licensee Data is granted to Licensor or implied hereby, and for any Licensee Property that is licensed to Licensor, no title or ownership rights are transferred with such license.
- License to Licensor. Notwithstanding the foregoing, Licensee hereby grants Licensor a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this MSA), and royalty-free license under Licensee IPR to access and use the Licensee Data and any other Licensee Property made available to Licensor or any of its Affiliates, solely as necessary for Licensor to provide the Services to Licensee pursuant to this MSA.
- Licensor Property. As between Licensor and Licensee, Licensor retains all rights, title, and interest in and to the Licensor Property, and except as expressly set out in this MSA, no right, title, or license under any Licensor Property is granted to Licensee or implied hereby. For avoidance of doubt, the granting of any license herein does not affect the ownership of any Licensed Materials, whether tangible or intangible, and, unless expressly stated otherwise in an Order Form, none of the Licensed Materials accessed through the Services shall be considered a “Works Made for Hire” as defined by the copyright laws of the United States.
4. Confidentiality and Data Security
- Confidentiality. During the term of this MSA and for a period of three (3) years thereafter, each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its Affiliates, officers, directors, employees, subcontractors, agents or prospective financing sources or acquirers who need to know such information in connection with this MSA and who are bound by written agreements requiring the protection of such Confidential Information.
- Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's expense, if the Disclosing Party wishes to contest the disclosure.
- Return of Confidential Information. At any time upon the request of the Disclosing Party, or in the event of termination of this MSA, the Receiving Party will return, or destroy as so directed by the Disclosing Party, all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form; provided, however, the Receiving Party shall not be required to return or destroy electronic copies that are automatically stored in accordance with Receiving Party’s generally applicable backup policies and which are not reasonably accessible by the Receiving Party (“Backup Media”). All Backup Media shall remain subject to the confidentiality obligations set forth herein, notwithstanding the expiration or termination of this MSA, so long as it remains undeleted.
- Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 4, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
- Licensee Data Security. Except as provided otherwise herein, Licensor agrees and acknowledges that it shall consider Licensee Data to be Licensee’s Confidential Information. Licensee agrees and acknowledges that Licensor may use Licensee Data only for the purposes providing, maintaining, and improving the Services to and for the Licensee. Notwithstanding the foregoing, Licensee agrees and acknowledges that Licensor will treat Licensee Data in accordance with the Licensor’s privacy statement located at: https://www.cbinsights.com/privacy-policy.
5. Warranties; Disclaimers
- Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this MSA. Licensee warrants that it will not use the Services for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party. Licensor warrants to Licensee that during the applicable Subscription Term the Services purchased by Licensee will substantially perform in all material respects with the applicable portions of the Documentation; provided however, that such warranty shall not apply to non-conformities, errors, or problems caused by acts within the control of Licensee or any of its Representatives, or arising from Licensee’s negligence or improper use of the Services, from unauthorized modifications made to the Services, from use of the Services in an unsupported manner, or from interoperability issues arising from devices or equipment or browsers used by Licensee to access the Services, or that arises from Licensee’s or any third party’s software or systems
- Disclaimer. THE LICENSED MATERIALS AVAILABLE THROUGH THE SERVICES HAVE BEEN GATHERED BY LICENSOR FROM SOURCES BELIEVED BY LICENSOR TO BE RELIABLE AND HAVE BEEN ARRANGED IN A WAY THAT LICENSOR BELIEVES WILL INCREASE THE EASE OF ACCESS, USE, AND UTILITY OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS MSA, (1) NEITHER PARTY MAKES ANY ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO THE OTHER PARTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (2) EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND (3) LICENSOR’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICES AGAIN. LICENSEE AGREES AND ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. LICENSOR DOES NOT REPRESENT OR WARRANT THAT: (I) THE SERVICES WILL MEET LICENSEE’S BUSINESS REQUIREMENTS; (II) THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM ITS USE WILL BE ACCURATE OR RELIABLE; OR (III) ALL DEFICIENCIES IN THE SERVICES CAN BE FOUND OR CORRECTED. LICENSOR WILL NOT BE RESPONSIBLE FOR: (A) LOSS OF DATA THAT IS NOT DUE TO A BREACH OF THIS MSA BY LICENSOR; (B) THE INABILITY OF LICENSEE OR ANY USER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET
- No Professional Advice. LICENSEE AGREES AND ACKNOWLEDGES THAT NONE OF THE SERVICES OR PROVISION OF LICENSED MATERIALS CONSTITUTES PROFESSIONAL ADVICE, OPINION, OR RECOMMENDATION BY LICENSOR. LICENSOR DOES NOT CLAIM TO BE AND IS NOT A BROKER, DEALER OR INVESTMENT ADVISOR AND NOTHING HEREIN SHALL CONSTITUTE A SALE OR OFFER TO BUY, SELL, OR RECOMMEND ANY SECURITIES OR COMPANIES. LICENSEE ACKNOWLEDGES THAT IT MAKES ITS OWN INVESTMENT DECISIONS BASED UPON ITS OWN DUE DILIGENCE, INVESTIGATION AND OTHER SPECIFIC INVESTMENT CRITERIA.
6. Indemnification
- Indemnification by Licensor. Licensor will defend and pay Licensee, its employees, directors and officers (the “Licensee Indemnified Parties”) from and against any and all costs, damages and expenses, including reasonable attorneys’ fees (collectively, “Losses”), suffered or incurred by any Licensee Indemnified Party, as a result of any claim brought by a third party (“Third Party Claim”) against a Licensee Indemnified Party alleging that the use of the Services in accordance with the terms and conditions of this MSA infringes any patent, copyright, trademark or trade secret right of such third party (an “Infringement Claim”). Without limiting the foregoing, in the event that the Services or any part thereof is likely to, in Licensor’s sole opinion, or do become the subject of an Infringement Claim, Licensor may, at its option and expense: (i) procure for Licensee the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non-infringing replacement for such item, or (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the MSA and any outstanding Order Forms and refund to Licensee Fees paid by Licensee to Licensor for the infringing items in an amount prorated to reflect the period of time between the date Licensee was unable to use the Services due to such Infringement Claim and the remaining days in the current Subscription Term. Licensor shall have no liability for any Infringement Claim arising from (1) Licensee’s use or supply to Licensor of any Licensee Property; (2) use of the Services other than in accordance with the MSA or in combination with any software, hardware, network or system not supplied by Licensor if the alleged infringement relates to such combination; (3) any modification or alteration of the Services (other than by Licensor), if the alleged infringement arises in connection with such modification or alteration; or (4) Licensee’s violation of applicable law or third party rights.
- Indemnification by Licensee. Licensee will defend and pay Licensor, its employees, directors and officers (the “Licensor Indemnified Parties”) from and against any and all Losses, suffered or incurred by any Licensor Indemnified Party, arising from any Third Party Claim against an Licensor Indemnified Party : (i) alleging that any Licensee Property or Licensee’s use of the Services beyond the license granted in this MSA violates the rights of privacy or publicity of any third party, or infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party, and/or (ii) of infringement or misappropriation excluded from Licensor’s foregoing indemnity obligations under Section 6(a).
- Indemnification Conditions. The Parties’ obligations under this Section 6 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim subject to indemnification under this Section 6, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section 6 are subject to the limitations and exclusions set forth in Section 7 below, and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable Third Party Claim.
7. Limitation of Liability
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS MSA, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM LICENSEE HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE (THE “LIABILITY CAP”), EXCEPT THAT: (I) LIABILITY ARISING OUT OF A BREACH OF THE OBLIGATIONS IN SECTION 4 (CONFIDENTIALITY AND DATA SECURITY) WILL INSTEAD BE LIMITED TO THE HIGHER LIMIT OF THREE TIMES (3X) THE LIABILITY CAP; (II) LICENSEE’S BREACH OF SECTION 1(d) SHALL BE LIMITED TO THE HIGHER LIMIT OF TEN TIMES (10X) THE LIABILITY CAP; AND (III) THE GROSS NEGLIGENCE AND WILLFUL MISCONDUCT OF EITHER PARTY WILL NOT BE LIMITED BY THE LIABILITY CAP. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS MSA FAIL OF THEIR ESSENTIAL PURPOSE.
- Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THIS MSA.
8. Term and Termination
- Term of MSA. This MSA commences on the Effective Date and shall remain in effect until terminated in accordance with Section 8(c).
- Term of Subscriptions. Licensee’s access to the purchased Services shall commence on the start date specified in the relevant Order Form and continue for the Subscription Term specified on such Order Form. Pricing for any renewal term may increase by up to five percent (5%) above the applicable pricing in the prior Subscription Term to the current per-unit list pricing. Except as expressly provided in an applicable Order Form, renewal of any promotional or one-time priced offerings may be priced at the certain list price in effect at the time of the applicable renewal. If Licensee purchases access to the Services through Licensor's website, Licensee's Subscription Term will automatically renew upon the last day of the then-current Term unless Licensee opts out of such renewal prior to such date.
- Termination. Either Party may terminate this MSA and/or any Order Form by providing written notice to the other Party in the event (i) the other Party materially breaches any of its duties, obligations or responsibilities under this MSA and fails to cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach, or provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan; (ii) a receiver, trustee, administrator, or administrative receiver is appointed for the other Party or its property; (iii) the other Party makes an assignment for the benefit of creditors; (iv) any proceedings should be commenced against the other Party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings shall not be vacated or set aside within sixty (60) days from the date of commencement thereof; or (v) the other Party is liquidated or dissolved. In addition, a Party may terminate this MSA by providing written notice to the other Party if there are no Order Forms in effect for more than ninety (90) days, continuously. For avoidance of doubt, neither Party may terminate this MSA or any applicable Order Form for convenience during the Subscription Term.
- Effect of Termination. Expiration or termination of one Order Form shall not affect any other Order Forms. Upon termination of this MSA for any reason or termination of a Team License in an Order Form, Licensee shall (and shall ensure that all Users within an applicable Team License shall) immediately cease accessing and using the Services and Licensed Materials, and Licensee must delete and destroy all copies of Licensed Materials stored on Licensee systems or that is otherwise in Licensee’s possession or under Licensee’s control. Licensee may, however, retain Licensed Materials in aggregate form that is included in Work Product, articles, blogs, or other content or materials, that were created in accordance with the terms of this MSA prior to the effective date of termination. Additionally, Licensee may retain Licensed Materials which are required to be retained pursuant to regulatory or other data-retention policies.
- Surviving Provisions. The following provisions shall survive the termination or expiration of this MSA for any reason and shall remain in effect after any such termination or expiration: Sections 1(d), 2, 3(a) and (c), 4, 7, 8(d) and (e), and 9. Termination or expiration of this MSA shall not affect any obligation accrued or arising prior to such termination or expiration.
9. Miscellaneous Provisions
- Relationship. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties and Licensor will be considered an independent contractor when performing any Services hereunder.
- Licensee Affiliates. An Affiliate or parent of Licensee may purchase Services subject to the terms of this MSA by executing Order Forms with Licensor hereunder. By entering into an Order Form hereunder, the Affiliate agrees to be bound by the terms of this MSA as if it were an original party hereto.
- Entire Understanding. This MSA (including all Exhibits and Order Forms, all of which are incorporated herein by reference) constitutes the entire agreement between the Parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this MSA. To the extent of any conflict or inconsistency between the provisions in the body of this MSA and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Licensee purchase order or in any other ordering documentation (excluding Order Forms) are hereby rejected. Such terms will not be deemed incorporated into or form any part of this MSA, and all such terms or conditions are null and void.
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Licensee, Section 1(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Modification; Waiver and Cumulative Remedies. Except for Licensor’s modification or update of the Services, or any policies as necessary to comply with applicable law, rules, regulations, no modification of this MSA, and no waiver of any breach of this MSA or right under this MSA, is legally binding against the other Party unless in writing and signed or electronically accepted by both Parties. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
- Arbitration; Governing Law; Venue. The parties hereto agree that any dispute, claim or controversy arising out of or relating to this MSA or the breach, termination, enforcement, interpretation or validity hereof or thereof, including the determination of the scope or applicability of this MSA to arbitrate, shall be determined by final and binding arbitration in New York City, New York (except for an action for interim equitable relief otherwise permitted under this MSA and/or unless otherwise agreed by the parties), before a sole arbitrator, in accordance with the laws of the State of New York for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and Procedures; provided, however, if the Parties mutually elect, the arbitration can be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures instead of its Comprehensive Arbitration Rules and Procedures. The arbitrator’s decision shall be reduced to writing, signed by the arbitrator, and mailed to each of the parties and their legal counsel. All decisions of the arbitrator shall be final, binding and conclusive on the parties. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a decision in accordance with applicable law in any court having jurisdiction thereof. The Parties will pay their own costs (including, without limitation, attorneys’ fees) and expenses in connection with such arbitration.
- Publicity. Any press release developed by a Party regarding this MSA shall be subject to the prior written consent of the other Party. Licensor may identify Licensee as a user of the Services by referencing Licensee’s name and logo, provided that such reference is consistent with Licensee’s generally applicable branding guidelines and that Licensor will cease making such references after receiving written notice from Licensee to do so.
- Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, Licensor may assign this MSA in its entirety, together with all rights and obligations hereunder, without consent of Licensee, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this MSA. Any attempt by a Party to assign its rights or obligations under this MSA in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
- Notices. All notices under this MSA shall be in writing and shall be delivered to the emails or addresses first set forth in the Order Form(s) or set forth below at signature. Either Party may change its address for notice by giving notice of such address change in the manner provided herein. All communications and notices to be made or given pursuant to this MSA shall be in the English language.
- Anti-Corruption. Licensee acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any Licensor employees, agent or representative in connection with this MSA, other than reasonable gifts and entertainment provided in the ordinary course of business. Licensee will promptly notify Licensor if it offers or receives any such improper payment or transfer in connection with this MSA.
- Severability. If any provision of this MSA is held by a court of competent jurisdiction to be contrary to law, 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 MSA shall remain in effect
- “Affiliate” of a Party means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity (and the correlative terms, “controlled by” and “under common control with”) means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.
- “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed, including pricing and other terms set forth in an Order Form. The Licensor Property shall constitute Licensor’s Confidential Information regardless of the means or manner by which it is disclosed. Licensee Data shall constitute Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information that a Receiving Party can show: (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; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
- “License” means a current and valid license to access or use the Services, and which may include, but is not limited to, purchased subscription to the Services for one or more Users associated with a Team License, or any other valid and authorized right/license as permitted by Licensor.
- “Licensed Materials” means all content and data and reports, including without limitation, metrics, calculations, text, research, ratings, rankings, opinions, photographs, video, audio, graphics, tools, analytics, functionality, products and information displayed and/or otherwise provided by the Services.
- “Licensee Data” means, other than the Utilization Data, all data or information submitted, electronic or otherwise, by or on behalf of Licensee to the Services and/or to Licensor.
- “Licensee Property” means (i) the Licensee Data, and (ii) all patent, copyright, trade secret or other intellectual property rights embodied in or related to any of the foregoing (the “Licensee IPR”).
- “Documentation” means all documentation and other instructional material, if applicable, made available by Licensor regarding the use of the Services.
- “Fees” means all fees specified in or otherwise incurred pursuant to an Order Form.
- “Licensor Property” means (i) the Services, (ii) all Licensed Materials supplied by Licensor in connection with, or used by Licensor in providing, any of the foregoing, and (iii) all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to any of the foregoing. For clarity, Licensor Property includes Utilization Data and any information, data, or other content derived from Licensor’s authorized monitoring of any User’s access to or use of the Services but does not include Licensee Data.
- “Order Form” means an ordering document for Services purchased from Licensor that has been executed hereunder by the Parties, including without limitation any attached or associated statement of work.
- “Representatives” means with respect to any individual and/or the entity on whose behalf such individual is entering into a commercial agreement with Licensor, all users, employees, agents, subcontractors and other representatives of such individual or entity (as applicable).
- “Services” means any of the paid or trial subscriptions to various online, web-based applications, software services, data feeds or data delivery materials, application programming interface (“API”), data downloads and plugins as well as certain standalone or recurring research services or reports provided by CB Insights directly or via certain websites owned and operated by Licensor, as well as (i) the Licensed Materials contained therein, and (ii) any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.
- “Subscription Term” means the subscription period set forth in the applicable Order Form during which Licensor agrees to provide the Services to Licensee.
- “Team License” means a License specifically for a defined number of individual Users within or among the designated Business Group(s) (as defined herein) who typically work closely together on a daily basis and are part of the same immediate chain-of-command. Individuals who only periodically work together or tangentially support the designated Business Group may not be considered Users under a Team License and must be part of their own, separate License.
- “User” means a person directly affiliated with Licensee who has an email address with Licensee’s organization and is the recipient of the Services.
- “Utilization Data” means data and information related to Licensee’s use of the Services that is used by Licensor in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
Effective February 27th 2023 to March 1st 2023
DownloadTable of Contents
This master subscription agreement, ("MSA") which may include any relevant ordering documents (collectively, “Agreement”), is made by and between CB Information Services, Inc., a corporation validly existing under the laws of Delaware (“CB Insights” or “Licensor”) and the specific person or entity identified as the licensee or customer or party thereto in the associated agreement, ordering document, or purchase order (“Licensee” or “You”). Licensee and Licensor may be collectively referred to as the “Parties” or individually as a “Party.” This MSA governs Your purchase and use of the Services and Licensed Materials (as defined herein, respectively) and shall be effective at the time and in the manner as described herein (“Effective Date”). CB Insights may amend this MSA at any time by posting a revised version on legal.cbinsights.com. Each revised version will state its effective date, which will be on or after the date posted by CB Insights. If the revised version materially reduces Your rights under this MSA, CB Insights will send notice to the email address it has on file, and request acceptance of the materially changed version. Otherwise, Your continued use of the Services after the effective date of a non-materially revised version of this MSA constitutes your acceptance of the terms.
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Services
- Provision of Services. Subject to the payment of all applicable Fees and for the applicable Subscription Term, Licensor hereby grants to Licensee a non-sublicensable, non-transferable (except as provided herein), non-exclusive right and limited license to use the Services and access the Licensed Materials, in accordance with the terms and conditions of this MSA and all Order Forms. Licensor reserves the right to revise or discontinue certain features or content of the Services if, in Licensor’s sole discretion, such action is necessary for the provision of the Services or such features or content are minor and not disruptive to the overall use of the Services. Licensee further agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Licensor regarding future functionality or features.
- Order Forms. Each Order Form for Services will describe the License, as well as additional mutually agreed-upon limitations on use of the Services, including, to the extent applicable, Fees, the Subscription Term, the number of and/or class of permitted Users and the permitted scope of use of the Services. The number of authorized, individual Users that shall have access to the Services pursuant to a License is limited to individuals that are part of one or more designated business department(s) or functional group(s) within the Licensee’s organization (“Business Group”). The applicable Order Form will specifically identify and list the particular Business Group and total number of authorized Users (“User Limit”). For each License, only Users who are a member of the designated Business Group may access the Services. Licensee may occasionally switch Users under a License, provided that (i) the number of Users does not exceed the User Limit, and (ii) new Users are members of the same Business Group designated as such in the applicable Order Form. Violation of the restrictions set forth herein, which shall include sharing User accounts with any unauthorized individuals, will be considered a material breach by Licensee. Unless expressly referenced otherwise in an Order Form, the rights granted in a License are granted only to Licensee, and do not extend to Licensee’s shareholders, parents, subsidiaries, affiliates or other related entities or individuals not included in the definition of Licensee on the Order Form. Such related affiliates must execute a separate Order Form in order to use the Services and Licensed Materials.
- Authorized Use. Except as expressly stated otherwise herein or in an applicable Order Form, Users may access the Services and use the Licensed Materials only for the Licensee’s internal business activities and may store Licensed Materials on computers or devices or locations owned by or under its control (which may include commercial cloud storage). Users may also extract, quote, and/or distribute limited selections of Licensed Materials in work product for distribution throughout Licensee’s organizations to support any of Licensee’s businesses (“Work Product”). From time to time, Licensee and its Users may also excerpt and distribute limited, insubstantial portions of Licensed Materials (in electronic form or hard copies) to third parties to support any of Licensee’s businesses, provided that any publicly available Licensed Materials shall be conspicuously attributed to Licensor, using the phrase, “SOURCE: CB INSIGHTS” or such other similar language. Notwithstanding the foregoing, to the extent Licensee receives any Licensed Materials through a Licensor API or other direct data feed, Licensee agrees it may only use such retrieved Licensed Materials for internal purposes and may not distribute such received Licensed Materials to any third parties.
- Limitations. Licensee shall not, and shall cause its Users to not: (i) distribute Licensed Materials to a third-party in any quantity or manner that would serve as a substitute for the purchase of a subscription to the Services or Licensed Materials by the recipient; (ii) use the Services in a manner contrary to or in violation of any applicable laws or in any other manner except as expressly permitted in this MSA; (iii) market, sell, license, or commercially distribute the Services to third parties or use as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using the Licensed Materials as a primary source to create and/or maintain any market index, database, interface, mobile platform, or software program that the Licensee publishes or distributes or commercially provides to third parties; (iv) decompile or reverse engineer any software relating to the Services; or (v) use the Services in any manner which competes against Licensor.
- Links to Other Websites. Licensee acknowledges and agrees that Users may, through hypertext or other computer links available in the Services, elect to gain access to websites operated by individuals or entities other than Licensor. Such hyperlinks are provided for Licensee’s and its Users’ reference and convenience only and are the exclusive responsibility of the owners of each such website. Licensee agrees and acknowledges that Licensor is not responsible for the content or operation of such websites, and that Licensor shall have no liability to Licensee, Users, or any other person or entity for the use of third-party websites. Licensee and/or its Users are solely responsible for determining the extent to which Users may use any content at any other such websites. Additionally, Licensee acknowledges and agrees that such websites may be subject to different terms and conditions which may be different from this MSA and which will govern with respect to Users’ use of such websites.
- Registration and User ID Security. Some of the Services require secure login through a unique username and password (collectively, “User ID”). If Users access the Services using secure User IDs, Licensee agrees as follows (and shall compel its Users to agree) for purposes of initial registration and general User ID security: (i) as part of the registration process which may be necessary to obtain access to the Services, Licensee shall provide certain truthful registration information to Licensor (subject to all confidentiality obligations stated herein), with each registration being for a single User only; (ii) Users shall have access to the Services during the Subscription Term through the User ID, which may be used by Users to gain access to the Services only for so long as such Users are authorized to access and use the Services in accordance with the terms of this MSA or the applicable Order Form; and (iii) Licensee agrees to treat the User ID as confidential and, as to the Users, not to disclose or share such User ID, either directly or indirectly, to any person other than as directed by Licensee or permitted by Licensor in writing. Notwithstanding anything to the contrary stated herein, Licensor shall not be liable to Licensee or any third person or entity for any loss or damage directly arising from own Licensee’s failure to comply with these security requirements. Subject to any confidentiality obligations contained herein or in an applicable Order Form, Licensor reserves the right to monitor the use of the Services solely to ensure compliance with the terms of this MSA and to maintain and improve the provision of the Services.
2. Fees and Payment Terms
- Fees. Licensee will pay Licensor all Fees in accordance with this Section 2 and the applicable Order Form. Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable and Fees paid are non-refundable unless this MSA or an applicable Order Form is terminated for cause pursuant to Section 8(c), in which case any prepaid, unearned Fees will be refunded in a prorated amount.
- Invoices and Payment. Licensee shall pay Fees according to the terms of the applicable Order Form.
- Taxes. Licensee is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from Licensor’s provision of the Services hereunder, except any taxes assessed upon Licensor’s net income or payroll. If Licensor is required to directly pay Taxes related to Licensee’s use or receipt of any Services, Licensee agrees to promptly reimburse Licensor for any amounts paid by Licensor.
3. Proprietary Rights
- Licensee Property. As between Licensee and Licensor, Licensee retains all rights, title, and interest in and to the Licensee Property. Except as expressly set out in this MSA, no right, title, or license under any Licensee Data is granted to Licensor or implied hereby, and for any Licensee Property that is licensed to Licensor, no title or ownership rights are transferred with such license.
- License to Licensor. Notwithstanding the foregoing, Licensee hereby grants Licensor a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this MSA), and royalty-free license under Licensee IPR to access and use the Licensee Data and any other Licensee Property made available to Licensor or any of its Affiliates, solely as necessary for Licensor to provide the Services to Licensee pursuant to this MSA.
- Licensor Property. As between Licensor and Licensee, Licensor retains all rights, title, and interest in and to the Licensor Property, and except as expressly set out in this MSA, no right, title, or license under any Licensor Property is granted to Licensee or implied hereby. For avoidance of doubt, the granting of any license herein does not affect the ownership of any Licensed Materials, whether tangible or intangible, and, unless expressly stated otherwise in an Order Form, none of the Licensed Materials accessed through the Services shall be considered a “Works Made for Hire” as defined by the copyright laws of the United States.
4. Confidentiality and Data Security
- Confidentiality. During the term of this MSA and for a period of three (3) years thereafter, each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its Affiliates, officers, directors, employees, subcontractors, agents or prospective financing sources or acquirers who need to know such information in connection with this MSA and who are bound by written agreements requiring the protection of such Confidential Information.
- Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's expense, if the Disclosing Party wishes to contest the disclosure.
- Return of Confidential Information. At any time upon the request of the Disclosing Party, or in the event of termination of this MSA, the Receiving Party will return, or destroy as so directed by the Disclosing Party, all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form; provided, however, the Receiving Party shall not be required to return or destroy electronic copies that are automatically stored in accordance with Receiving Party’s generally applicable backup policies and which are not reasonably accessible by the Receiving Party (“Backup Media”). All Backup Media shall remain subject to the confidentiality obligations set forth herein, notwithstanding the expiration or termination of this MSA, so long as it remains undeleted.
- Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 4, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
- Licensee Data Security. Except as provided otherwise herein, Licensor agrees and acknowledges that it shall consider Licensee Data to be Licensee’s Confidential Information. Licensee agrees and acknowledges that Licensor may use Licensee Data only for the purposes providing, maintaining, and improving the Services to and for the Licensee. Notwithstanding the foregoing, Licensee agrees and acknowledges that Licensor will treat Licensee Data in accordance with the Licensor’s privacy statement located at: https://www.cbinsights.com/privacy-policy.
5. Warranties; Disclaimers
- Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this MSA. Licensee warrants that it will not use the Services for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party. Licensor warrants to Licensee that during the applicable Subscription Term the Services purchased by Licensee will substantially perform in all material respects with the applicable portions of the Documentation; provided however, that such warranty shall not apply to non-conformities, errors, or problems caused by acts within the control of Licensee or any of its Representatives, or arising from Licensee’s negligence or improper use of the Services, from unauthorized modifications made to the Services, from use of the Services in an unsupported manner, or from interoperability issues arising from devices or equipment or browsers used by Licensee to access the Services, or that arises from Licensee’s or any third party’s software or systems
- Disclaimer. THE LICENSED MATERIALS AVAILABLE THROUGH THE SERVICES HAVE BEEN GATHERED BY LICENSOR FROM SOURCES BELIEVED BY LICENSOR TO BE RELIABLE AND HAVE BEEN ARRANGED IN A WAY THAT LICENSOR BELIEVES WILL INCREASE THE EASE OF ACCESS, USE, AND UTILITY OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS MSA, (1) NEITHER PARTY MAKES ANY ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO THE OTHER PARTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (2) EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND (3) LICENSOR’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICES AGAIN. LICENSEE AGREES AND ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. LICENSOR DOES NOT REPRESENT OR WARRANT THAT: (I) THE SERVICES WILL MEET LICENSEE’S BUSINESS REQUIREMENTS; (II) THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM ITS USE WILL BE ACCURATE OR RELIABLE; OR (III) ALL DEFICIENCIES IN THE SERVICES CAN BE FOUND OR CORRECTED. LICENSOR WILL NOT BE RESPONSIBLE FOR: (A) LOSS OF DATA THAT IS NOT DUE TO A BREACH OF THIS MSA BY LICENSOR; (B) THE INABILITY OF LICENSEE OR ANY USER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET
- No Professional Advice. LICENSEE AGREES AND ACKNOWLEDGES THAT NONE OF THE SERVICES OR PROVISION OF LICENSED MATERIALS CONSTITUTES PROFESSIONAL ADVICE, OPINION, OR RECOMMENDATION BY LICENSOR. LICENSOR DOES NOT CLAIM TO BE AND IS NOT A BROKER, DEALER OR INVESTMENT ADVISOR AND NOTHING HEREIN SHALL CONSTITUTE A SALE OR OFFER TO BUY, SELL, OR RECOMMEND ANY SECURITIES OR COMPANIES. LICENSEE ACKNOWLEDGES THAT IT MAKES ITS OWN INVESTMENT DECISIONS BASED UPON ITS OWN DUE DILIGENCE, INVESTIGATION AND OTHER SPECIFIC INVESTMENT CRITERIA.
6. Indemnification
- Indemnification by Licensor. Licensor will defend and pay Licensee, its employees, directors and officers (the “Licensee Indemnified Parties”) from and against any and all costs, damages and expenses, including reasonable attorneys’ fees (collectively, “Losses”), suffered or incurred by any Licensee Indemnified Party, as a result of any claim brought by a third party (“Third Party Claim”) against a Licensee Indemnified Party alleging that the use of the Services in accordance with the terms and conditions of this MSA infringes any patent, copyright, trademark or trade secret right of such third party (an “Infringement Claim”). Without limiting the foregoing, in the event that the Services or any part thereof is likely to, in Licensor’s sole opinion, or do become the subject of an Infringement Claim, Licensor may, at its option and expense: (i) procure for Licensee the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non-infringing replacement for such item, or (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the MSA and any outstanding Order Forms and refund to Licensee Fees paid by Licensee to Licensor for the infringing items in an amount prorated to reflect the period of time between the date Licensee was unable to use the Services due to such Infringement Claim and the remaining days in the current Subscription Term. Licensor shall have no liability for any Infringement Claim arising from (1) Licensee’s use or supply to Licensor of any Licensee Property; (2) use of the Services other than in accordance with the MSA or in combination with any software, hardware, network or system not supplied by Licensor if the alleged infringement relates to such combination; (3) any modification or alteration of the Services (other than by Licensor), if the alleged infringement arises in connection with such modification or alteration; or (4) Licensee’s violation of applicable law or third party rights.
- Indemnification by Licensee. Licensee will defend and pay Licensor, its employees, directors and officers (the “Licensor Indemnified Parties”) from and against any and all Losses, suffered or incurred by any Licensor Indemnified Party, arising from any Third Party Claim against an Licensor Indemnified Party : (i) alleging that any Licensee Property or Licensee’s use of the Services beyond the license granted in this MSA violates the rights of privacy or publicity of any third party, or infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party, and/or (ii) of infringement or misappropriation excluded from Licensor’s foregoing indemnity obligations under Section 6(a).
- Indemnification Conditions. The Parties’ obligations under this Section 6 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim subject to indemnification under this Section 6, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section 6 are subject to the limitations and exclusions set forth in Section 7 below, and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable Third Party Claim.
7. Limitation of Liability
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS MSA, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM LICENSEE HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE (THE “LIABILITY CAP”), EXCEPT THAT: (I) LIABILITY ARISING OUT OF A BREACH OF THE OBLIGATIONS IN SECTION 4 (CONFIDENTIALITY AND DATA SECURITY) WILL INSTEAD BE LIMITED TO THE HIGHER LIMIT OF THREE TIMES (3X) THE LIABILITY CAP; (II) LICENSEE’S BREACH OF SECTION 1(d) SHALL BE LIMITED TO THE HIGHER LIMIT OF TEN TIMES (10X) THE LIABILITY CAP; AND (III) THE GROSS NEGLIGENCE AND WILLFUL MISCONDUCT OF EITHER PARTY WILL NOT BE LIMITED BY THE LIABILITY CAP. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS MSA FAIL OF THEIR ESSENTIAL PURPOSE.
- Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THIS MSA.
8. Term and Termination
- Term of MSA. This MSA commences on the Effective Date and shall remain in effect until terminated in accordance with Section 8(c).
- Term of Subscriptions. Licensee’s access to the purchased Services shall commence on the start date specified in the relevant Order Form and continue for the Subscription Term specified on such Order Form. Pricing for any renewal term may increase by up to five percent (5%) above the applicable pricing in the prior Subscription Term to the current per-unit list pricing. Except as expressly provided in an applicable Order Form, renewal of any promotional or one-time priced offerings may be priced at the certain list price in effect at the time of the applicable renewal. If Licensee purchases access to the Services through Licensor's website, Licensee's Subscription Term will automatically renew upon the last day of the then-current Term unless Licensee opts out of such renewal prior to such date.
- Termination. Either Party may terminate this MSA and/or any Order Form by providing written notice to the other Party in the event (i) the other Party materially breaches any of its duties, obligations or responsibilities under this MSA and fails to cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach, or provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan; (ii) a receiver, trustee, administrator, or administrative receiver is appointed for the other Party or its property; (iii) the other Party makes an assignment for the benefit of creditors; (iv) any proceedings should be commenced against the other Party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings shall not be vacated or set aside within sixty (60) days from the date of commencement thereof; or (v) the other Party is liquidated or dissolved. In addition, a Party may terminate this MSA by providing written notice to the other Party if there are no Order Forms in effect for more than ninety (90) days, continuously. For avoidance of doubt, neither Party may terminate this MSA or any applicable Order Form for convenience during the Subscription Term.
- Effect of Termination. Expiration or termination of one Order Form shall not affect any other Order Forms. Upon termination of this MSA for any reason or termination of a Team License in an Order Form, Licensee shall (and shall ensure that all Users within an applicable Team License shall) immediately cease accessing and using the Services and Licensed Materials, and Licensee must delete and destroy all copies of Licensed Materials stored on Licensee systems or that is otherwise in Licensee’s possession or under Licensee’s control. Licensee may, however, retain Licensed Materials in aggregate form that is included in Work Product, articles, blogs, or other content or materials, that were created in accordance with the terms of this MSA prior to the effective date of termination. Additionally, Licensee may retain Licensed Materials which are required to be retained pursuant to regulatory or other data-retention policies.
- Surviving Provisions. The following provisions shall survive the termination or expiration of this MSA for any reason and shall remain in effect after any such termination or expiration: Sections 1(d), 2, 3(a) and (c), 4, 7, 8(d) and (e), and 9. Termination or expiration of this MSA shall not affect any obligation accrued or arising prior to such termination or expiration.
9. Miscellaneous Provisions
- Relationship. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties and Licensor will be considered an independent contractor when performing any Services hereunder.
- Licensee Affiliates. An Affiliate or parent of Licensee may purchase Services subject to the terms of this MSA by executing Order Forms with Licensor hereunder. By entering into an Order Form hereunder, the Affiliate agrees to be bound by the terms of this MSA as if it were an original party hereto.
- Entire Understanding. This MSA (including all Exhibits and Order Forms, all of which are incorporated herein by reference) constitutes the entire agreement between the Parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this MSA. To the extent of any conflict or inconsistency between the provisions in the body of this MSA and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Licensee purchase order or in any other ordering documentation (excluding Order Forms) are hereby rejected. Such terms will not be deemed incorporated into or form any part of this MSA, and all such terms or conditions are null and void.
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Licensee, Section 1(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Modification; Waiver and Cumulative Remedies. Except for Licensor’s modification or update of the Services, or any policies as necessary to comply with applicable law, rules, regulations, no modification of this MSA, and no waiver of any breach of this MSA or right under this MSA, is legally binding against the other Party unless in writing and signed or electronically accepted by both Parties. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
- Arbitration; Governing Law; Venue. The parties hereto agree that any dispute, claim or controversy arising out of or relating to this MSA or the breach, termination, enforcement, interpretation or validity hereof or thereof, including the determination of the scope or applicability of this MSA to arbitrate, shall be determined by final and binding arbitration in New York City, New York (except for an action for interim equitable relief otherwise permitted under this MSA and/or unless otherwise agreed by the parties), before a sole arbitrator, in accordance with the laws of the State of New York for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and Procedures; provided, however, if the Parties mutually elect, the arbitration can be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures instead of its Comprehensive Arbitration Rules and Procedures. The arbitrator’s decision shall be reduced to writing, signed by the arbitrator, and mailed to each of the parties and their legal counsel. All decisions of the arbitrator shall be final, binding and conclusive on the parties. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a decision in accordance with applicable law in any court having jurisdiction thereof. The Parties will pay their own costs (including, without limitation, attorneys’ fees) and expenses in connection with such arbitration.
- Publicity. Any press release developed by a Party regarding this MSA shall be subject to the prior written consent of the other Party. Licensor may identify Licensee as a user of the Services by referencing Licensee’s name and logo, provided that such reference is consistent with Licensee’s generally applicable branding guidelines and that Licensor will cease making such references after receiving written notice from Licensee to do so.
- Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, Licensor may assign this MSA in its entirety, together with all rights and obligations hereunder, without consent of Licensee, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this MSA. Any attempt by a Party to assign its rights or obligations under this MSA in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
- Notices. All notices under this MSA shall be in writing and shall be delivered to the emails or addresses first set forth in the Order Form(s) or set forth below at signature. Either Party may change its address for notice by giving notice of such address change in the manner provided herein. All communications and notices to be made or given pursuant to this MSA shall be in the English language.
- Anti-Corruption. Licensee acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any Licensor employees, agent or representative in connection with this MSA, other than reasonable gifts and entertainment provided in the ordinary course of business. Licensee will promptly notify Licensor if it offers or receives any such improper payment or transfer in connection with this MSA.
- Severability. If any provision of this MSA is held by a court of competent jurisdiction to be contrary to law, 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 MSA shall remain in effect
- “Affiliate” of a Party means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity (and the correlative terms, “controlled by” and “under common control with”) means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.
- “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed, including pricing and other terms set forth in an Order Form. The Licensor Property shall constitute Licensor’s Confidential Information regardless of the means or manner by which it is disclosed. Licensee Data shall constitute Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information that a Receiving Party can show: (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; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
- “License” means a current and valid license to access or use the Services, and which may include, but is not limited to, purchased subscription to the Services for one or more Users associated with a Team License, or any other valid and authorized right/license as permitted by Licensor.
- “Licensed Materials” means all content and data and reports, including without limitation, metrics, calculations, text, research, ratings, rankings, opinions, photographs, video, audio, graphics, tools, analytics, functionality, products and information displayed and/or otherwise provided by the Services.
- “Licensee Data” means, other than the Utilization Data, all data or information submitted, electronic or otherwise, by or on behalf of Licensee to the Services and/or to Licensor.
- “Licensee Property” means (i) the Licensee Data, and (ii) all patent, copyright, trade secret or other intellectual property rights embodied in or related to any of the foregoing (the “Licensee IPR”).
- “Documentation” means all documentation and other instructional material, if applicable, made available by Licensor regarding the use of the Services.
- “Fees” means all fees specified in or otherwise incurred pursuant to an Order Form.
- “Licensor Property” means (i) the Services, (ii) all Licensed Materials supplied by Licensor in connection with, or used by Licensor in providing, any of the foregoing, and (iii) all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to any of the foregoing. For clarity, Licensor Property includes Utilization Data and any information, data, or other content derived from Licensor’s authorized monitoring of any User’s access to or use of the Services but does not include Licensee Data.
- “Order Form” means an ordering document for Services purchased from Licensor that has been executed hereunder by the Parties, including without limitation any attached or associated statement of work.
- “Representatives” means with respect to any individual and/or the entity on whose behalf such individual is entering into a commercial agreement with Licensor, all users, employees, agents, subcontractors and other representatives of such individual or entity (as applicable).
- “Services” means any of the paid or trial subscriptions to various online, web-based applications, software services, data feeds or data delivery materials, application programming interface (“API”), data downloads and plugins as well as certain standalone or recurring research services or reports provided by CB Insights directly or via certain websites owned and operated by Licensor, as well as (i) the Licensed Materials contained therein, and (ii) any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.
- “Subscription Term” means the subscription period set forth in the applicable Order Form during which Licensor agrees to provide the Services to Licensee.
- “Team License” means a License specifically for a defined number of individual Users within or among the designated Business Group(s) (as defined herein) who typically work closely together on a daily basis and are part of the same immediate chain-of-command. Individuals who only periodically work together or tangentially support the designated Business Group may not be considered Users under a Team License and must be part of their own, separate License.
- “User” means a person directly affiliated with Licensee who has an email address with Licensee’s organization and is the recipient of the Services.
- “Utilization Data” means data and information related to Licensee’s use of the Services that is used by Licensor in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
Effective February 10th 2023 to February 27th 2023
DownloadTable of Contents
This master subscription agreement, which may include any relevant ordering documents (collectively, “Agreement”), is made by and between CB Information Services, Inc., a corporation validly existing under the laws of Delaware (“CB Insights” or “Licensor”) and the specific person or entity identified as the licensee or customer or party thereto in the associated agreement, ordering document, or purchase order (“Licensee” or “You”). Licensee and Licensor may be collectively referred to as the “Parties” or individually as a “Party.” The MSA sets forth in this Agreement governs Your purchase and use of the Services and Licensed Materials (as defined herein, respectively) and shall be effective at the time and in the manner as described herein (“Effective Date”).
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Services
- Provision of Services. Subject to the payment of all applicable Fees and for the applicable Subscription Term, Licensor hereby grants to Licensee a non-sublicensable, non-transferable (except as provided herein), non-exclusive right and limited license to use the Services and access the Licensed Materials, in accordance with the terms and conditions of this Agreement and all Order Forms. Licensor reserves the right to revise or discontinue certain features or content of the Services if, in Licensor’s sole discretion, such action is necessary for the provision of the Services or such features or content are minor and not disruptive to the overall use of the Services. Licensee further agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Licensor regarding future functionality or features.
- Order Forms. Each Order Form for Services will describe the License, as well as additional mutually agreed-upon limitations on use of the Services, including, to the extent applicable, Fees, the Subscription Term, the number of and/or class of permitted Users and the permitted scope of use of the Services. The number of authorized, individual Users that shall have access to the Services pursuant to a License is limited to individuals that are part of one or more designated business department(s) or functional group(s) within the Licensee’s organization (“Business Group”). The applicable Order Form will specifically identify and list the particular Business Group and total number of authorized Users (“User Limit”). For each License, only Users who are a member of the designated Business Group may access the Services. Licensee may occasionally switch Users under a License, provided that (i) the number of Users does not exceed the User Limit, and (ii) new Users are members of the same Business Group designated as such in the applicable Order Form. Violation of the restrictions set forth herein, which shall include sharing User accounts with any unauthorized individuals, will be considered a material breach by Licensee. Unless expressly referenced otherwise in an Order Form, the rights granted in a License are granted only to Licensee, and do not extend to Licensee’s shareholders, parents, subsidiaries, affiliates or other related entities or individuals not included in the definition of Licensee on the Order Form. Such related affiliates must execute a separate Order Form in order to use the Services and Licensed Materials.
- Authorized Use. Except as expressly stated otherwise herein or in an applicable Order Form, Users may access the Services and use the Licensed Materials only for the Licensee’s internal business activities and may store Licensed Materials on computers or devices or locations owned by or under its control (which may include commercial cloud storage). Users may also extract, quote, and/or distribute limited selections of Licensed Materials in work product for distribution throughout Licensee’s organizations to support any of Licensee’s businesses (“Work Product”). From time to time, Licensee and its Users may also excerpt and distribute limited, insubstantial portions of Licensed Materials (in electronic form or hard copies) to third parties to support any of Licensee’s businesses, provided that any publicly available Licensed Materials shall be conspicuously attributed to Licensor, using the phrase, “SOURCE: CB INSIGHTS” or such other similar language. Notwithstanding the foregoing, to the extent Licensee receives any Licensed Materials through a Licensor API or other direct data feed, Licensee agrees it may only use such retrieved Licensed Materials for internal purposes and may not distribute such received Licensed Materials to any third parties.
- Limitations. Licensee shall not, and shall cause its Users to not: (i) distribute Licensed Materials to a third-party in any quantity or manner that would serve as a substitute for the purchase of a subscription to the Services or Licensed Materials by the recipient; (ii) use the Services in a manner contrary to or in violation of any applicable laws or in any other manner except as expressly permitted in this Agreement; (iii) market, sell, license, or commercially distribute the Services to third parties or use as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using the Licensed Materials as a primary source to create and/or maintain any market index, database, interface, mobile platform, or software program that the Licensee publishes or distributes or commercially provides to third parties; (iv) decompile or reverse engineer any software relating to the Services; or (v) use the Services in any manner which competes against Licensor.
- Links to Other Websites. Licensee acknowledges and agrees that Users may, through hypertext or other computer links available in the Services, elect to gain access to websites operated by individuals or entities other than Licensor. Such hyperlinks are provided for Licensee’s and its Users’ reference and convenience only and are the exclusive responsibility of the owners of each such website. Licensee agrees and acknowledges that Licensor is not responsible for the content or operation of such websites, and that Licensor shall have no liability to Licensee, Users, or any other person or entity for the use of third-party websites. Licensee and/or its Users are solely responsible for determining the extent to which Users may use any content at any other such websites. Additionally, Licensee acknowledges and agrees that such websites may be subject to different terms and conditions which may be different from this Agreement and which will govern with respect to Users’ use of such websites.
- Registration and User ID Security. Some of the Services require secure login through a unique username and password (collectively, “User ID”). If Users access the Services using secure User IDs, Licensee agrees as follows (and shall compel its Users to agree) for purposes of initial registration and general User ID security: (i) as part of the registration process which may be necessary to obtain access to the Services, Licensee shall provide certain truthful registration information to Licensor (subject to all confidentiality obligations stated herein), with each registration being for a single User only; (ii) Users shall have access to the Services during the Subscription Term through the User ID, which may be used by Users to gain access to the Services only for so long as such Users are authorized to access and use the Services in accordance with the terms of this Agreement or the applicable Order Form; and (iii) Licensee agrees to treat the User ID as confidential and, as to the Users, not to disclose or share such User ID, either directly or indirectly, to any person other than as directed by Licensee or permitted by Licensor in writing. Notwithstanding anything to the contrary stated herein, Licensor shall not be liable to Licensee or any third person or entity for any loss or damage directly arising from own Licensee’s failure to comply with these security requirements. Subject to any confidentiality obligations contained herein or in an applicable Order Form, Licensor reserves the right to monitor the use of the Services solely to ensure compliance with the terms of this Agreement and to maintain and improve the provision of the Services.
2. Fees and Payment Terms
- Fees. Licensee will pay Licensor all Fees in accordance with this Section 2 and the applicable Order Form. Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable and Fees paid are non-refundable unless this Agreement or an applicable Order Form is terminated for cause pursuant to Section 8(c), in which case any prepaid, unearned Fees will be refunded in a prorated amount.
- Invoices and Payment. Licensee shall pay Fees according to the terms of the applicable Order Form.
- Taxes. Licensee is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from Licensor’s provision of the Services hereunder, except any taxes assessed upon Licensor’s net income or payroll. If Licensor is required to directly pay Taxes related to Licensee’s use or receipt of any Services, Licensee agrees to promptly reimburse Licensor for any amounts paid by Licensor.
3. Proprietary Rights
- Licensee Property. As between Licensee and Licensor, Licensee retains all rights, title, and interest in and to the Licensee Property. Except as expressly set out in this Agreement, no right, title, or license under any Licensee Data is granted to Licensor or implied hereby, and for any Licensee Property that is licensed to Licensor, no title or ownership rights are transferred with such license.
- License to Licensor. Notwithstanding the foregoing, Licensee hereby grants Licensor a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), and royalty-free license under Licensee IPR to access and use the Licensee Data and any other Licensee Property made available to Licensor or any of its Affiliates, solely as necessary for Licensor to provide the Services to Licensee pursuant to this Agreement.
- Licensor Property. As between Licensor and Licensee, Licensor retains all rights, title, and interest in and to the Licensor Property, and except as expressly set out in this Agreement, no right, title, or license under any Licensor Property is granted to Licensee or implied hereby. For avoidance of doubt, the granting of any license herein does not affect the ownership of any Licensed Materials, whether tangible or intangible, and, unless expressly stated otherwise in an Order Form, none of the Licensed Materials accessed through the Services shall be considered a “Works Made for Hire” as defined by the copyright laws of the United States.
4. Confidentiality and Data Security
- Confidentiality. During the term of this Agreement and for a period of three (3) years thereafter, each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its Affiliates, officers, directors, employees, subcontractors, agents or prospective financing sources or acquirers who need to know such information in connection with this Agreement and who are bound by written agreements requiring the protection of such Confidential Information.
- Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's expense, if the Disclosing Party wishes to contest the disclosure.
- Return of Confidential Information. At any time upon the request of the Disclosing Party, or in the event of termination of this Agreement, the Receiving Party will return, or destroy as so directed by the Disclosing Party, all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form; provided, however, the Receiving Party shall not be required to return or destroy electronic copies that are automatically stored in accordance with Receiving Party’s generally applicable backup policies and which are not reasonably accessible by the Receiving Party (“Backup Media”). All Backup Media shall remain subject to the confidentiality obligations set forth herein, notwithstanding the expiration or termination of this Agreement, so long as it remains undeleted.
- Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 4, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
- Licensee Data Security. Except as provided otherwise herein, Licensor agrees and acknowledges that it shall consider Licensee Data to be Licensee’s Confidential Information. Licensee agrees and acknowledges that Licensor may use Licensee Data only for the purposes providing, maintaining, and improving the Services to and for the Licensee. Notwithstanding the foregoing, Licensee agrees and acknowledges that Licensor will treat Licensee Data in accordance with the Licensor’s privacy statement located at: https://www.cbinsights.com/privacy-policy.
5. Warranties; Disclaimers
- Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. Licensee warrants that it will not use the Services for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party. Licensor warrants to Licensee that during the applicable Subscription Term the Services purchased by Licensee will substantially perform in all material respects with the applicable portions of the Documentation; provided however, that such warranty shall not apply to non-conformities, errors, or problems caused by acts within the control of Licensee or any of its Representatives, or arising from Licensee’s negligence or improper use of the Services, from unauthorized modifications made to the Services, from use of the Services in an unsupported manner, or from interoperability issues arising from devices or equipment or browsers used by Licensee to access the Services, or that arises from Licensee’s or any third party’s software or systems
- Disclaimer. THE LICENSED MATERIALS AVAILABLE THROUGH THE SERVICES HAVE BEEN GATHERED BY LICENSOR FROM SOURCES BELIEVED BY LICENSOR TO BE RELIABLE AND HAVE BEEN ARRANGED IN A WAY THAT LICENSOR BELIEVES WILL INCREASE THE EASE OF ACCESS, USE, AND UTILITY OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (1) NEITHER PARTY MAKES ANY ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO THE OTHER PARTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (2) EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND (3) LICENSOR’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICES AGAIN. LICENSEE AGREES AND ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. LICENSOR DOES NOT REPRESENT OR WARRANT THAT: (I) THE SERVICES WILL MEET LICENSEE’S BUSINESS REQUIREMENTS; (II) THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM ITS USE WILL BE ACCURATE OR RELIABLE; OR (III) ALL DEFICIENCIES IN THE SERVICES CAN BE FOUND OR CORRECTED. LICENSOR WILL NOT BE RESPONSIBLE FOR: (A) LOSS OF DATA THAT IS NOT DUE TO A BREACH OF THIS AGREEMENT BY LICENSOR; (B) THE INABILITY OF LICENSEE OR ANY USER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET
- No Professional Advice. LICENSEE AGREES AND ACKNOWLEDGES THAT NONE OF THE SERVICES OR PROVISION OF LICENSED MATERIALS CONSTITUTES PROFESSIONAL ADVICE, OPINION, OR RECOMMENDATION BY LICENSOR. LICENSOR DOES NOT CLAIM TO BE AND IS NOT A BROKER, DEALER OR INVESTMENT ADVISOR AND NOTHING HEREIN SHALL CONSTITUTE A SALE OR OFFER TO BUY, SELL, OR RECOMMEND ANY SECURITIES OR COMPANIES. LICENSEE ACKNOWLEDGES THAT IT MAKES ITS OWN INVESTMENT DECISIONS BASED UPON ITS OWN DUE DILIGENCE, INVESTIGATION AND OTHER SPECIFIC INVESTMENT CRITERIA.
6. Indemnification
- Indemnification by Licensor. Licensor will defend and pay Licensee, its employees, directors and officers (the “Licensee Indemnified Parties”) from and against any and all costs, damages and expenses, including reasonable attorneys’ fees (collectively, “Losses”), suffered or incurred by any Licensee Indemnified Party, as a result of any claim brought by a third party (“Third Party Claim”) against a Licensee Indemnified Party alleging that the use of the Services in accordance with the terms and conditions of this Agreement infringes any patent, copyright, trademark or trade secret right of such third party (an “Infringement Claim”). Without limiting the foregoing, in the event that the Services or any part thereof is likely to, in Licensor’s sole opinion, or do become the subject of an Infringement Claim, Licensor may, at its option and expense: (i) procure for Licensee the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non-infringing replacement for such item, or (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the Agreement and any outstanding Order Forms and refund to Licensee Fees paid by Licensee to Licensor for the infringing items in an amount prorated to reflect the period of time between the date Licensee was unable to use the Services due to such Infringement Claim and the remaining days in the current Subscription Term. Licensor shall have no liability for any Infringement Claim arising from (1) Licensee’s use or supply to Licensor of any Licensee Property; (2) use of the Services other than in accordance with the MSA or in combination with any software, hardware, network or system not supplied by Licensor if the alleged infringement relates to such combination; (3) any modification or alteration of the Services (other than by Licensor), if the alleged infringement arises in connection with such modification or alteration; or (4) Licensee’s violation of applicable law or third party rights.
- Indemnification by Licensee. Licensee will defend and pay Licensor, its employees, directors and officers (the “Licensor Indemnified Parties”) from and against any and all Losses, suffered or incurred by any Licensor Indemnified Party, arising from any Third Party Claim against an Licensor Indemnified Party : (i) alleging that any Licensee Property or Licensee’s use of the Services beyond the license granted in this Agreement violates the rights of privacy or publicity of any third party, or infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party, and/or (ii) of infringement or misappropriation excluded from Licensor’s foregoing indemnity obligations under Section 6(a).
- Indemnification Conditions. The Parties’ obligations under this Section 6 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim subject to indemnification under this Section 6, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section 6 are subject to the limitations and exclusions set forth in Section 7 below, and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable Third Party Claim.
7. Limitation of Liability
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM LICENSEE HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE (THE “LIABILITY CAP”), EXCEPT THAT: (I) LIABILITY ARISING OUT OF A BREACH OF THE OBLIGATIONS IN SECTION 4 (CONFIDENTIALITY AND DATA SECURITY) WILL INSTEAD BE LIMITED TO THE HIGHER LIMIT OF THREE TIMES (3X) THE LIABILITY CAP; (II) LICENSEE’S BREACH OF SECTION 1(d) SHALL BE LIMITED TO THE HIGHER LIMIT OF TEN TIMES (10X) THE LIABILITY CAP; AND (III) THE GROSS NEGLIGENCE AND WILLFUL MISCONDUCT OF EITHER PARTY WILL NOT BE LIMITED BY THE LIABILITY CAP. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
- Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT.
8. Term and Termination
- Term of Agreement. This Agreement commences on the Effective Date and shall remain in effect until terminated in accordance with Section 8(c).
- Term of Subscriptions. Licensee’s access to the purchased Services shall commence on the start date specified in the relevant Order Form and continue for the Subscription Term specified on such Order Form. Pricing for any renewal term may increase by up to five percent (5%) above the applicable pricing in the prior Subscription Term to the current per-unit list pricing. Except as expressly provided in an applicable Order Form, renewal of any promotional or one-time priced offerings may be priced at the certain list price in effect at the time of the applicable renewal.
- Termination. Either Party may terminate this Agreement and/or any Order Form by providing written notice to the other Party in the event (i) the other Party materially breaches any of its duties, obligations or responsibilities under this Agreement and fails to cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach, or provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan; (ii) a receiver, trustee, administrator, or administrative receiver is appointed for the other Party or its property; (iii) the other Party makes an assignment for the benefit of creditors; (iv) any proceedings should be commenced against the other Party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings shall not be vacated or set aside within sixty (60) days from the date of commencement thereof; or (v) the other Party is liquidated or dissolved. In addition, a Party may terminate this Agreement by providing written notice to the other Party if there are no Order Forms in effect for more than ninety (90) days, continuously. For avoidance of doubt, neither Party may terminate this Agreement or any applicable Order Form for convenience during the Subscription Term.
- Effect of Termination. Expiration or termination of one Order Form shall not affect any other Order Forms. Upon termination of this Agreement for any reason or termination of a Team License in an Order Form, Licensee shall (and shall ensure that all Users within an applicable Team License shall) immediately cease accessing and using the Services and Licensed Materials, and Licensee must delete and destroy all copies of Licensed Materials stored on Licensee systems or that is otherwise in Licensee’s possession or under Licensee’s control. Licensee may, however, retain Licensed Materials in aggregate form that is included in Work Product, articles, blogs, or other content or materials, that were created in accordance with the terms of this Agreement prior to the effective date of termination. Additionally, Licensee may retain Licensed Materials which are required to be retained pursuant to regulatory or other data-retention policies.
- Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 1(d), 2, 3(a) and (c), 4, 7, 8(d) and (e), and 9. Termination or expiration of this Agreement shall not affect any obligation accrued or arising prior to such termination or expiration.
9. Miscellaneous Provisions
- Relationship. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties and Licensor will be considered an independent contractor when performing any Services hereunder.
- Licensee Affiliates. An Affiliate or parent of Licensee may purchase Services subject to the terms of this Agreement by executing Order Forms with Licensor hereunder. By entering into an Order Form hereunder, the Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
- Entire Understanding. This Agreement (including all Exhibits and Order Forms, all of which are incorporated herein by reference) constitutes the entire agreement between the Parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Licensee purchase order or in any other ordering documentation (excluding Order Forms) are hereby rejected. Such terms will not be deemed incorporated into or form any part of this Agreement, and all such terms or conditions are null and void.
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Licensee, Section 1(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Modification; Waiver and Cumulative Remedies. Except for Licensor’s modification or update of the Services, or any policies as necessary to comply with applicable law, rules, regulations, no modification of this Agreement, and no waiver of any breach of this Agreement or right under this Agreement, is legally binding against the other Party unless in writing and signed or electronically accepted by both Parties. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
- Arbitration; Governing Law; Venue. The parties hereto agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity hereof or thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by final and binding arbitration in New York City, New York (except for an action for interim equitable relief otherwise permitted under this Agreement and/or unless otherwise agreed by the parties), before a sole arbitrator, in accordance with the laws of the State of New York for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and Procedures; provided, however, if the Parties mutually elect, the arbitration can be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures instead of its Comprehensive Arbitration Rules and Procedures. The arbitrator’s decision shall be reduced to writing, signed by the arbitrator, and mailed to each of the parties and their legal counsel. All decisions of the arbitrator shall be final, binding and conclusive on the parties. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a decision in accordance with applicable law in any court having jurisdiction thereof. The Parties will pay their own costs (including, without limitation, attorneys’ fees) and expenses in connection with such arbitration.
- Publicity. Any press release developed by a Party regarding this Agreement shall be subject to the prior written consent of the other Party. Licensor may identify Licensee as a user of the Services by referencing Licensee’s name and logo, provided that such reference is consistent with Licensee’s generally applicable branding guidelines and that Licensor will cease making such references after receiving written notice from Licensee to do so.
- Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, Licensor may assign this Agreement in its entirety, together with all rights and obligations hereunder, without consent of Licensee, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
- Notices. All notices under this Agreement shall be in writing and shall be delivered to the emails or addresses first set forth in the Order Form(s) or set forth below at signature. Either Party may change its address for notice by giving notice of such address change in the manner provided herein. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
- Anti-Corruption. Licensee acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any Licensor employees, agent or representative in connection with this Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. Licensee will promptly notify Licensor if it offers or receives any such improper payment or transfer in connection with this Agreement.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, 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 effectDefinitions
- “Affiliate” of a Party means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity (and the correlative terms, “controlled by” and “under common control with”) means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.
- “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed, including pricing and other terms set forth in an Order Form. The Licensor Property shall constitute Licensor’s Confidential Information regardless of the means or manner by which it is disclosed. Licensee Data shall constitute Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information that a Receiving Party can show: (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; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
- “License” means a current and valid license to access or use the Services, and which may include, but is not limited to, purchased subscription to the Services for one or more Users associated with a Team License, or any other valid and authorized right/license as permitted by Licensor.
- “Licensed Materials” means all content and data and reports, including without limitation, metrics, calculations, text, research, ratings, rankings, opinions, photographs, video, audio, graphics, tools, analytics, functionality, products and information displayed and/or otherwise provided by the Services.
- “Licensee Data” means, other than the Utilization Data, all data or information submitted, electronic or otherwise, by or on behalf of Licensee to the Services and/or to Licensor.
- “Licensee Property” means (i) the Licensee Data, and (ii) all patent, copyright, trade secret or other intellectual property rights embodied in or related to any of the foregoing (the “Licensee IPR”).
- “Documentation” means all documentation and other instructional material, if applicable, made available by Licensor regarding the use of the Services.
- “Fees” means all fees specified in or otherwise incurred pursuant to an Order Form.
- “Licensor Property” means (i) the Services, (ii) all Licensed Materials supplied by Licensor in connection with, or used by Licensor in providing, any of the foregoing, and (iii) all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to any of the foregoing. For clarity, Licensor Property includes Utilization Data and any information, data, or other content derived from Licensor’s authorized monitoring of any User’s access to or use of the Services but does not include Licensee Data.
- “Order Form” means an ordering document for Services purchased from Licensor that has been executed hereunder by the Parties, including without limitation any attached or associated statement of work.
- “Representatives” means with respect to any individual and/or the entity on whose behalf such individual is entering into a commercial agreement with Licensor, all users, employees, agents, subcontractors and other representatives of such individual or entity (as applicable).
- “Services” means any of the paid or trial subscriptions to various online, web-based applications, software services, data feeds or data delivery materials, application programming interface (“API”), data downloads and plugins as well as certain standalone or recurring research services or reports provided by CB Insights directly or via certain websites owned and operated by Licensor, as well as (i) the Licensed Materials contained therein, and (ii) any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.
- “Subscription Term” means the subscription period set forth in the applicable Order Form during which Licensor agrees to provide the Services to Licensee.
- “Team License” means a License specifically for a defined number of individual Users within or among the designated Business Group(s) (as defined herein) who typically work closely together on a daily basis and are part of the same immediate chain-of-command. Individuals who only periodically work together or tangentially support the designated Business Group may not be considered Users under a Team License and must be part of their own, separate License.
- “User” means a person directly affiliated with Licensee who has an email address with Licensee’s organization and is the recipient of the Services.
- “Utilization Data” means data and information related to Licensee’s use of the Services that is used by Licensor in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
Effective February 10th 2023 to February 10th 2023
DownloadTable of Contents
This master subscription agreement, which may include any relevant ordering documents (collectively, “Agreement”), is made by and between CB Information Services, Inc., a corporation validly existing under the laws of Delaware (“CB Insights” or “Licensor”) and the specific person or entity identified as the licensee or customer or party thereto in the associated agreement, ordering document, or purchase order (“Licensee” or “You”). Licensee and Licensor may be collectively referred to as the “Parties” or individually as a “Party.” The Terms set forth in this Agreement governs Your purchase and use of the Services and Licensed Materials (as defined herein, respectively) and shall be effective at the time and in the manner as described herein (“Effective Date”).
In consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Services
- Provision of Services. Subject to the payment of all applicable Fees and for the applicable Subscription Term, Licensor hereby grants to Licensee a non-sublicensable, non-transferable (except as provided herein), non-exclusive right and limited license to use the Services and access the Licensed Materials, in accordance with the terms and conditions of this Agreement and all Order Forms. Licensor reserves the right to revise or discontinue certain features or content of the Services if, in Licensor’s sole discretion, such action is necessary for the provision of the Services or such features or content are minor and not disruptive to the overall use of the Services. Licensee further agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Licensor regarding future functionality or features.
- Order Forms. Each Order Form for Services will describe the License, as well as additional mutually agreed-upon limitations on use of the Services, including, to the extent applicable, Fees, the Subscription Term, the number of and/or class of permitted Users and the permitted scope of use of the Services. The number of authorized, individual Users that shall have access to the Services pursuant to a License is limited to individuals that are part of one or more designated business department(s) or functional group(s) within the Licensee’s organization (“Business Group”). The applicable Order Form will specifically identify and list the particular Business Group and total number of authorized Users (“User Limit”). For each License, only Users who are a member of the designated Business Group may access the Services. Licensee may occasionally switch Users under a License, provided that (i) the number of Users does not exceed the User Limit, and (ii) new Users are members of the same Business Group designated as such in the applicable Order Form. Violation of the restrictions set forth herein, which shall include sharing User accounts with any unauthorized individuals, will be considered a material breach by Licensee. Unless expressly referenced otherwise in an Order Form, the rights granted in a License are granted only to Licensee, and do not extend to Licensee’s shareholders, parents, subsidiaries, affiliates or other related entities or individuals not included in the definition of Licensee on the Order Form. Such related affiliates must execute a separate Order Form in order to use the Services and Licensed Materials.
- Authorized Use. Except as expressly stated otherwise herein or in an applicable Order Form, Users may access the Services and use the Licensed Materials only for the Licensee’s internal business activities and may store Licensed Materials on computers or devices or locations owned by or under its control (which may include commercial cloud storage). Users may also extract, quote, and/or distribute limited selections of Licensed Materials in work product for distribution throughout Licensee’s organizations to support any of Licensee’s businesses (“Work Product”). From time to time, Licensee and its Users may also excerpt and distribute limited, insubstantial portions of Licensed Materials (in electronic form or hard copies) to third parties to support any of Licensee’s businesses, provided that any publicly available Licensed Materials shall be conspicuously attributed to Licensor, using the phrase, “SOURCE: CB INSIGHTS” or such other similar language. Notwithstanding the foregoing, to the extent Licensee receives any Licensed Materials through a Licensor API or other direct data feed, Licensee agrees it may only use such retrieved Licensed Materials for internal purposes and may not distribute such received Licensed Materials to any third parties.
- Limitations. Licensee shall not, and shall cause its Users to not: (i) distribute Licensed Materials to a third-party in any quantity or manner that would serve as a substitute for the purchase of a subscription to the Services or Licensed Materials by the recipient; (ii) use the Services in a manner contrary to or in violation of any applicable laws or in any other manner except as expressly permitted in this Agreement; (iii) market, sell, license, or commercially distribute the Services to third parties or use as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using the Licensed Materials as a primary source to create and/or maintain any market index, database, interface, mobile platform, or software program that the Licensee publishes or distributes or commercially provides to third parties; (iv) decompile or reverse engineer any software relating to the Services; or (v) use the Services in any manner which competes against Licensor.
- Links to Other Websites. Licensee acknowledges and agrees that Users may, through hypertext or other computer links available in the Services, elect to gain access to websites operated by individuals or entities other than Licensor. Such hyperlinks are provided for Licensee’s and its Users’ reference and convenience only and are the exclusive responsibility of the owners of each such website. Licensee agrees and acknowledges that Licensor is not responsible for the content or operation of such websites, and that Licensor shall have no liability to Licensee, Users, or any other person or entity for the use of third-party websites. Licensee and/or its Users are solely responsible for determining the extent to which Users may use any content at any other such websites. Additionally, Licensee acknowledges and agrees that such websites may be subject to different terms and conditions which may be different from this Agreement and which will govern with respect to Users’ use of such websites.
- Registration and User ID Security. Some of the Services require secure login through a unique username and password (collectively, “User ID”). If Users access the Services using secure User IDs, Licensee agrees as follows (and shall compel its Users to agree) for purposes of initial registration and general User ID security: (i) as part of the registration process which may be necessary to obtain access to the Services, Licensee shall provide certain truthful registration information to Licensor (subject to all confidentiality obligations stated herein), with each registration being for a single User only; (ii) Users shall have access to the Services during the Subscription Term through the User ID, which may be used by Users to gain access to the Services only for so long as such Users are authorized to access and use the Services in accordance with the terms of this Agreement or the applicable Order Form; and (iii) Licensee agrees to treat the User ID as confidential and, as to the Users, not to disclose or share such User ID, either directly or indirectly, to any person other than as directed by Licensee or permitted by Licensor in writing. Notwithstanding anything to the contrary stated herein, Licensor shall not be liable to Licensee or any third person or entity for any loss or damage directly arising from own Licensee’s failure to comply with these security requirements. Subject to any confidentiality obligations contained herein or in an applicable Order Form, Licensor reserves the right to monitor the use of the Services solely to ensure compliance with the terms of this Agreement and to maintain and improve the provision of the Services.
2. Fees and Payment Terms
- Fees. Licensee will pay Licensor all Fees in accordance with this Section 2 and the applicable Order Form. Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable and Fees paid are non-refundable unless this Agreement or an applicable Order Form is terminated for cause pursuant to Section 8(c), in which case any prepaid, unearned Fees will be refunded in a prorated amount.
- Invoices and Payment. Licensee shall pay Fees according to the terms of the applicable Order Form.
- Taxes. Licensee is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from Licensor’s provision of the Services hereunder, except any taxes assessed upon Licensor’s net income or payroll. If Licensor is required to directly pay Taxes related to Licensee’s use or receipt of any Services, Licensee agrees to promptly reimburse Licensor for any amounts paid by Licensor.
3. Proprietary Rights
- Licensee Property. As between Licensee and Licensor, Licensee retains all rights, title, and interest in and to the Licensee Property. Except as expressly set out in this Agreement, no right, title, or license under any Licensee Data is granted to Licensor or implied hereby, and for any Licensee Property that is licensed to Licensor, no title or ownership rights are transferred with such license.
- License to Licensor. Notwithstanding the foregoing, Licensee hereby grants Licensor a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), and royalty-free license under Licensee IPR to access and use the Licensee Data and any other Licensee Property made available to Licensor or any of its Affiliates, solely as necessary for Licensor to provide the Services to Licensee pursuant to this Agreement.
- Licensor Property. As between Licensor and Licensee, Licensor retains all rights, title, and interest in and to the Licensor Property, and except as expressly set out in this Agreement, no right, title, or license under any Licensor Property is granted to Licensee or implied hereby. For avoidance of doubt, the granting of any license herein does not affect the ownership of any Licensed Materials, whether tangible or intangible, and, unless expressly stated otherwise in an Order Form, none of the Licensed Materials accessed through the Services shall be considered a “Works Made for Hire” as defined by the copyright laws of the United States.
4. Confidentiality and Data Security
- Confidentiality. During the term of this Agreement and for a period of three (3) years thereafter, each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind; provided that a Receiving Party may disclose Confidential Information of the Disclosing Party to its Affiliates, officers, directors, employees, subcontractors, agents or prospective financing sources or acquirers who need to know such information in connection with this Agreement and who are bound by written agreements requiring the protection of such Confidential Information.
- Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's expense, if the Disclosing Party wishes to contest the disclosure.
- Return of Confidential Information. At any time upon the request of the Disclosing Party, or in the event of termination of this Agreement, the Receiving Party will return, or destroy as so directed by the Disclosing Party, all Confidential Information of the Disclosing Party, including all copies thereof and notes and other materials incorporating such Confidential Information, whether in physical or electronic form; provided, however, the Receiving Party shall not be required to return or destroy electronic copies that are automatically stored in accordance with Receiving Party’s generally applicable backup policies and which are not reasonably accessible by the Receiving Party (“Backup Media”). All Backup Media shall remain subject to the confidentiality obligations set forth herein, notwithstanding the expiration or termination of this Agreement, so long as it remains undeleted.
- Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 4, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
- Licensee Data Security. Except as provided otherwise herein, Licensor agrees and acknowledges that it shall consider Licensee Data to be Licensee’s Confidential Information. Licensee agrees and acknowledges that Licensor may use Licensee Data only for the purposes providing, maintaining, and improving the Services to and for the Licensee. Notwithstanding the foregoing, Licensee agrees and acknowledges that Licensor will treat Licensee Data in accordance with the Licensor’s privacy statement located at: https://www.cbinsights.com/privacy-policy.
5. Warranties; Disclaimers
- Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. Licensee warrants that it will not use the Services for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party. Licensor warrants to Licensee that during the applicable Subscription Term the Services purchased by Licensee will substantially perform in all material respects with the applicable portions of the Documentation; provided however, that such warranty shall not apply to non-conformities, errors, or problems caused by acts within the control of Licensee or any of its Representatives, or arising from Licensee’s negligence or improper use of the Services, from unauthorized modifications made to the Services, from use of the Services in an unsupported manner, or from interoperability issues arising from devices or equipment or browsers used by Licensee to access the Services, or that arises from Licensee’s or any third party’s software or systems
- Disclaimer. THE LICENSED MATERIALS AVAILABLE THROUGH THE SERVICES HAVE BEEN GATHERED BY LICENSOR FROM SOURCES BELIEVED BY LICENSOR TO BE RELIABLE AND HAVE BEEN ARRANGED IN A WAY THAT LICENSOR BELIEVES WILL INCREASE THE EASE OF ACCESS, USE, AND UTILITY OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BUT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (1) NEITHER PARTY MAKES ANY ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO THE OTHER PARTY, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, (2) EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING, WITHOUT LIMITATION, ANY WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND (3) LICENSOR’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE SERVICES AGAIN. LICENSEE AGREES AND ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. LICENSOR DOES NOT REPRESENT OR WARRANT THAT: (I) THE SERVICES WILL MEET LICENSEE’S BUSINESS REQUIREMENTS; (II) THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM ITS USE WILL BE ACCURATE OR RELIABLE; OR (III) ALL DEFICIENCIES IN THE SERVICES CAN BE FOUND OR CORRECTED. LICENSOR WILL NOT BE RESPONSIBLE FOR: (A) LOSS OF DATA THAT IS NOT DUE TO A BREACH OF THIS AGREEMENT BY LICENSOR; (B) THE INABILITY OF LICENSEE OR ANY USER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET
- No Professional Advice. LICENSEE AGREES AND ACKNOWLEDGES THAT NONE OF THE SERVICES OR PROVISION OF LICENSED MATERIALS CONSTITUTES PROFESSIONAL ADVICE, OPINION, OR RECOMMENDATION BY LICENSOR. LICENSOR DOES NOT CLAIM TO BE AND IS NOT A BROKER, DEALER OR INVESTMENT ADVISOR AND NOTHING HEREIN SHALL CONSTITUTE A SALE OR OFFER TO BUY, SELL, OR RECOMMEND ANY SECURITIES OR COMPANIES. LICENSEE ACKNOWLEDGES THAT IT MAKES ITS OWN INVESTMENT DECISIONS BASED UPON ITS OWN DUE DILIGENCE, INVESTIGATION AND OTHER SPECIFIC INVESTMENT CRITERIA.
6. Indemnification
- Indemnification by Licensor. Licensor will defend and pay Licensee, its employees, directors and officers (the “Licensee Indemnified Parties”) from and against any and all costs, damages and expenses, including reasonable attorneys’ fees (collectively, “Losses”), suffered or incurred by any Licensee Indemnified Party, as a result of any claim brought by a third party (“Third Party Claim”) against a Licensee Indemnified Party alleging that the use of the Services in accordance with the terms and conditions of this Agreement infringes any patent, copyright, trademark or trade secret right of such third party (an “Infringement Claim”). Without limiting the foregoing, in the event that the Services or any part thereof is likely to, in Licensor’s sole opinion, or do become the subject of an Infringement Claim, Licensor may, at its option and expense: (i) procure for Licensee the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non-infringing replacement for such item, or (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the Agreement and any outstanding Order Forms and refund to Licensee Fees paid by Licensee to Licensor for the infringing items in an amount prorated to reflect the period of time between the date Licensee was unable to use the Services due to such Infringement Claim and the remaining days in the current Subscription Term. Licensor shall have no liability for any Infringement Claim arising from (1) Licensee’s use or supply to Licensor of any Licensee Property; (2) use of the Services other than in accordance with the Terms or in combination with any software, hardware, network or system not supplied by Licensor if the alleged infringement relates to such combination; (3) any modification or alteration of the Services (other than by Licensor), if the alleged infringement arises in connection with such modification or alteration; or (4) Licensee’s violation of applicable law or third party rights.
- Indemnification by Licensee. Licensee will defend and pay Licensor, its employees, directors and officers (the “Licensor Indemnified Parties”) from and against any and all Losses, suffered or incurred by any Licensor Indemnified Party, arising from any Third Party Claim against an Licensor Indemnified Party : (i) alleging that any Licensee Property or Licensee’s use of the Services beyond the license granted in this Agreement violates the rights of privacy or publicity of any third party, or infringes, violates or misappropriates any patent, copyright, trademark or trade secret right of any third party, and/or (ii) of infringement or misappropriation excluded from Licensor’s foregoing indemnity obligations under Section 6(a).
- Indemnification Conditions. The Parties’ obligations under this Section 6 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim subject to indemnification under this Section 6, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section 6 are subject to the limitations and exclusions set forth in Section 7 below, and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable Third Party Claim.
7. Limitation of Liability
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM LICENSEE HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE (THE “LIABILITY CAP”), EXCEPT THAT: (I) LIABILITY ARISING OUT OF A BREACH OF THE OBLIGATIONS IN SECTION 4 (CONFIDENTIALITY AND DATA SECURITY) WILL INSTEAD BE LIMITED TO THE HIGHER LIMIT OF THREE TIMES (3X) THE LIABILITY CAP; (II) LICENSEE’S BREACH OF SECTION 1(d) SHALL BE LIMITED TO THE HIGHER LIMIT OF TEN TIMES (10X) THE LIABILITY CAP; AND (III) THE GROSS NEGLIGENCE AND WILLFUL MISCONDUCT OF EITHER PARTY WILL NOT BE LIMITED BY THE LIABILTY CAP. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
- Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT.
8. Term and Termination
- Term of Agreement. This Agreement commences on the Effective Date and shall remain in effect until terminated in accordance with Section 8(c).
- Term of Subscriptions. Licensee’s access to the purchased Services shall commence on the start date specified in the relevant Order Form and continue for the Subscription Term specified on such Order Form. Pricing for any renewal term may increase by up to five percent (5%) above the applicable pricing in the prior Subscription Term to the current per-unit list pricing. Except as expressly provided in an applicable Order Form, renewal of any promotional or one-time priced offerings may be priced at the certain list price in effect at the time of the applicable renewal.
- Termination. Either Party may terminate this Agreement and/or any Order Form by providing written notice to the other Party in the event (i) the other Party materially breaches any of its duties, obligations or responsibilities under this Agreement and fails to cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach, or provide the other Party with an acceptable plan for curing such breach within ten (10) days after receipt of such notice and thereafter curing such breach in accordance with such plan; (ii) a receiver, trustee, administrator, or administrative receiver is appointed for the other Party or its property; (iii) the other Party makes an assignment for the benefit of creditors; (iv) any proceedings should be commenced against the other Party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings shall not be vacated or set aside within sixty (60) days from the date of commencement thereof; or (v) the other Party is liquidated or dissolved. In addition, a Party may terminate this Agreement by providing written notice to the other Party if there are no Order Forms in effect for more than ninety (90) days, continuously. For avoidance of doubt, neither Party may terminate this Agreement or any applicable Order Form for convenience during the Subscription Term.
- Effect of Termination. Expiration or termination of one Order Form shall not affect any other Order Forms. Upon termination of this Agreement for any reason or termination of a Team License in an Order Form, Licensee shall (and shall ensure that all Users within an applicable Team License shall) immediately cease accessing and using the Services and Licensed Materials, and Licensee must delete and destroy all copies of Licensed Materials stored on Licensee systems or that is otherwise in Licensee’s possession or under Licensee’s control. Licensee may, however, retain Licensed Materials in aggregate form that is included in Work Product, articles, blogs, or other content or materials, that were created in accordance with the terms of this Agreement prior to the effective date of termination. Additionally, Licensee may retain Licensed Materials which are required to be retained pursuant to regulatory or other data-retention policies.
- Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 1(d), 2, 3(a) and (c), 4, 7, 8(d) and (e), and 9. Termination or expiration of this Agreement shall not affect any obligation accrued or arising prior to such termination or expiration.
9. Miscellaneous Provisions
- Relationship. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties and Licensor will be considered an independent contractor when performing any Services hereunder.
- Licensee Affiliates. An Affiliate or parent of Licensee may purchase Services subject to the terms of this Agreement by executing Order Forms with Licensor hereunder. By entering into an Order Form hereunder, the Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
- Entire Understanding. This Agreement (including all Exhibits and Order Forms, all of which are incorporated herein by reference) constitutes the entire agreement between the Parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Licensee purchase order or in any other ordering documentation (excluding Order Forms) are hereby rejected. Such terms will not be deemed incorporated into or form any part of this Agreement, and all such terms or conditions are null and void.
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Licensee, Section 1(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Modification; Waiver and Cumulative Remedies. Except for Licensor’s modification or update of the Services, or any policies as necessary to comply with applicable law, rules, regulations, no modification of this Agreement, and no waiver of any breach of this Agreement or right under this Agreement, is legally binding against the other Party unless in writing and signed or electronically accepted by both Parties. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
- Arbitration; Governing Law; Venue. The parties hereto agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity hereof or thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by final and binding arbitration in New York City, New York (except for an action for interim equitable relief otherwise permitted under this Agreement and/or unless otherwise agreed by the parties), before a sole arbitrator, in accordance with the laws of the State of New York for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and Procedures; provided, however, if the Parties mutually elect, the arbitration can be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures instead of its Comprehensive Arbitration Rules and Procedures. The arbitrator’s decision shall be reduced to writing, signed by the arbitrator, and mailed to each of the parties and their legal counsel. All decisions of the arbitrator shall be final, binding and conclusive on the parties. The arbitrator or a court of appropriate jurisdiction may issue a writ of execution to enforce the arbitrator’s judgment. Judgment may be entered upon such a decision in accordance with applicable law in any court having jurisdiction thereof. The Parties will pay their own costs (including, without limitation, attorneys’ fees) and expenses in connection with such arbitration.
- Publicity. Any press release developed by a Party regarding this Agreement shall be subject to the prior written consent of the other Party. Licensor may identify Licensee as a user of the Services by referencing Licensee’s name and logo, provided that such reference is consistent with Licensee’s generally applicable branding guidelines and that Licensor will cease making such references after receiving written notice from Licensee to do so.
- Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, Licensor may assign this Agreement in its entirety, together with all rights and obligations hereunder, without consent of Licensee, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
- Notices. All notices under this Agreement shall be in writing and shall be delivered to the emails or addresses first set forth in the Order Form(s) or set forth below at signature. Either Party may change its address for notice by giving notice of such address change in the manner provided herein. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
- Anti-Corruption. Licensee acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any Licensor employees, agent or representative in connection with this Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. Licensee will promptly notify Licensor if it offers or receives any such improper payment or transfer in connection with this Agreement.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, 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 effectDefinitions
- “Affiliate” of a Party means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity (and the correlative terms, “controlled by” and “under common control with”) means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.
- “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential at the time of disclosure to the Receiving Party, or that a reasonable person should consider confidential or proprietary given the nature of the information and the circumstances under which it is disclosed, including pricing and other terms set forth in an Order Form. The Licensor Property shall constitute Licensor’s Confidential Information regardless of the means or manner by which it is disclosed. Licensee Data shall constitute Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information that a Receiving Party can show: (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; (iii) was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party (excluding patentable subject matter which is not subject to this exclusion); or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
- “License” means a current and valid license to access or use the Services, and which may include, but is not limited to, purchased subscription to the Services for one or more Users associated with a Team License, or any other valid and authorized right/license as permitted by Licensor.
- “Licensed Materials” means all content and data and reports, including without limitation, metrics, calculations, text, research, ratings, rankings, opinions, photographs, video, audio, graphics, tools, analytics, functionality, products and information displayed and/or otherwise provided by the Services.
- “Licensee Data” means, other than the Utilization Data, all data or information submitted, electronic or otherwise, by or on behalf of Licensee to the Services and/or to Licensor.
- “Licensee Property” means (i) the Licensee Data, and (ii) all patent, copyright, trade secret or other intellectual property rights embodied in or related to any of the foregoing (the “Licensee IPR”).
- “Documentation” means all documentation and other instructional material, if applicable, made available by Licensor regarding the use of the Services.
- “Fees” means all fees specified in or otherwise incurred pursuant to an Order Form.
- “Licensor Property” means (i) the Services, (ii) all Licensed Materials supplied by Licensor in connection with, or used by Licensor in providing, any of the foregoing, and (iii) all patent, copyright, trade secret, trademark or other intellectual property rights embodied in or related to any of the foregoing. For clarity, Licensor Property includes Utilization Data and any information, data, or other content derived from Licensor’s authorized monitoring of any User’s access to or use of the Services but does not include Licensee Data.
- “Order Form” means an ordering document for Services purchased from Licensor that has been executed hereunder by the Parties, including without limitation any attached or associated statement of work.
- “Representatives” means with respect to any individual and/or the entity on whose behalf such individual is entering into a commercial agreement with Licensor, all users, employees, agents, subcontractors and other representatives of such individual or entity (as applicable).
- “Services” means any of the paid or trial subscriptions to various online, web-based applications, software services, data feeds or data delivery materials, application programming interface (“API”), data downloads and plugins as well as certain standalone or recurring research services or reports provided by CB Insights directly or via certain websites owned and operated by Licensor, as well as (i) the Licensed Materials contained therein, and (ii) any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.
- “Subscription Term” means the subscription period set forth in the applicable Order Form during which Licensor agrees to provide the Services to Licensee.
- “Team License” means a License specifically for a defined number of individual Users within or among the designated Business Group(s) (as defined herein) who typically work closely together on a daily basis and are part of the same immediate chain-of-command. Individuals who only periodically work together or tangentially support the designated Business Group may not be considered Users under a Team License and must be part of their own, separate License.
- “User” means a person directly affiliated with Licensee who has an email address with Licensee’s organization and is the recipient of the Services.
- “Utilization Data” means data and information related to Licensee’s use of the Services that is used by Licensor in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
Data Processing Addendum
Effective July 3rd 2023
DownloadTable of Contents
DATA PROCESSING AGREEMENT
Last updated July 3, 2023
This Data Processing Agreement (the “DPA“) available at https://legal.cbinsights.com/ forms part of and is incorporated into the Agreement or other written or electronic agreement (the “Agreement”) between Customer and CB Information Services, Inc. (“CB Insights”). Each of CB Insights and Customer shall be referred to individually as a Party and collectively as the Parties. All capitalized terms not defined herein shall have the meaning set forth in the Agreement.
As specifically indicated in the Agreement, Customer enters into this DPA on behalf of itself and on behalf of its Affiliates to the extent CB Insights processes Personal Data on behalf of Customer and its Affiliates in the course of providing Services.
In order to enable the Parties to carry out their relationship in a manner that is compliant with Applicable Data Protection Law, the Parties agree follows:
1.DEFINITIONS
All terms and phrases not defined herein shall have the meanings set forth in the Agreement or in Applicable Data Protection Law.
“Affiliate” means any Customer affiliate permitted to use the Services pursuant to the Agreement.
“Applicable Data Protection Law” means the laws and regulations applicable to the Processing of Personal Data under the Agreement.
“California Privacy Laws” means the California Consumer Privacy Act of 2018, as amended the California Privacy Rights Act of 2020, and their respective implementing regulations.
“Controller” and “Business” means the party that determines the purposes and means of the Processing of Personal Data.
“Customer” means the entity that executed the Agreement together with its Affiliates, which Affiliates have signed an Order Form.
“Customer Data” means any and all information provided or made available by Customer to CB Insights through Customer’s access to and use of the Services.
“Data Subject” means an identified or identifiable person entitled to rights under Applicable Data Protection Law and to whom Personal Data relates.
“GDPR” means Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation).
“Personal Data”means any information relating to an identified or identifiable natural person where such information is protected as personal data, personal information, or personally identifiable information under Applicable Data Protection Law where such data is Customer Data.
“Processing” means an operation or set of operations which is performed upon Personal Data, whether or not by automatic 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 whereas “Process,” “Processes,” and “Processed” shall be interpreted accordingly.
“Processor” and “Service Provider” mean a Party that Processes Personal Data on behalf of a Controller.
“Security Breach” means a breach of security of the CB Insights security standards leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data.
“Services” means the Services, including any customer support services, provided by CB Insights to Customer pursuant to the Agreement.
“Standard Contractual Clauses” shall mean (i) the clauses annexed to European Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council available at https://eur-lex.europa.eu/eli/dec_impl/2021/914/oj?uri=CELEX:32021D0914&locale=en, as may updated, amended, and superseded from time-to-time; and (ii) and the UK International Data Transfer Addendum (“UK IDTA”) available at https://ico.org.uk/media/for-organisations/documents/4019539/international-data-transfer-addendum.pdf, as may updated, amended, and superseded from time-to-time.
“Sub-processor”means any third party engaged by CB Insights that Processes Personal Data.
“Supervisory Authority”means an applicable independent public authority which is established by an EU Member State pursuant to the GDPR, the UK Information Commissioner’s Office (ICO), or the Swiss Federal Data Protection and Information Commissioner (FDPIC).
“UK GDPR” means the Data Protection Act 2018, including any amendments thereto.
2. DATA PROCESSING TERMS
2.1 Roles and Relationships. The Parties acknowledge and agree that with regard to Personal Data Processed under the Agreement, Customer is the Controller and CB Insights is the Processor. With respect to the California Privacy Laws, CB Insights shall be considered a Service Provider to Customer, which is the Business, to the extent that the California Privacy Laws apply.
2.2 Customer’s Processing of Personal Data. Customer shall, in its use of the Services and provision of instructions to CB Insights, process Personal Data in accordance with Applicable Data Protection Law. Customer is solely responsible for its compliance with Applicable Data Protection Law, including providing required notices and obtaining required consents, and in regards to the accuracy, quality, and lawful basis of Processing and the means by which Customer acquired such Personal Data with respect to Customer’s use of the Services.
2.3 Documented Instruction. Customer instructs CB Insights to process Personal Data for the purposes of providing the Services in accordance with the Agreement and any other documented reasonable instructions provided by Customer where such instructions are consistent with the terms of the Agreement.
2.4 Details of Processing. The subject matter of the Processing is the Services under the Agreement, the nature of which Processing is as set forth in the Agreement. The duration of Processing shall be for the duration of the provision of Services to Customer and any time thereafter as may be expressly agreed by CB Insights and Customer or as may be permitted or required by applicable law.
2.5 California Privacy Laws. For purposes of the California Privacy Laws, the nature of the Processing is for a Business Purpose and does not involve the “sale” or “sharing” of Personal Data by CB Insights, as such term is defined by the California Privacy Laws. CB Insights shall not retain, use, or disclose Personal Data for any purpose other than for the Business Purpose specified in the Agreement and shall not combine Personal Data with other information except as expressly permitted by Customer or the California Privacy Laws. CB Insights shall comply with the obligations of and provide the same level of protection as required by the applicable California Privacy Laws. As set forth in Section 3.5, CB Insights grants Customer the right, upon notice, to take reasonable and appropriate steps to help ensure that CB Insights uses the Personal Data in a manner consistent with the California Privacy Laws and to stop and remediate the unauthorize use of Personal Data. CB Insights will cooperate with Customer in responding to verifiable consumers requests, such as in regards to the deletion of Personal Data. CB Insights will notify Customer if it determines that it can no longer meet its obligations under the California Privacy Laws.
3.PROCESSOR OBLIGATIONS
3.1 Confidentiality. Persons authorized by CB Insights to Process Personal Data shall be committed to a duty of confidentiality.
3.2 Processing Limitations. CB Insights shall process Personal Data in accordance with Customer’s documented instructions and/or as otherwise permitted or required by Applicable Data Protection Law. CB Insights shall immediately inform Customer if, in its opinion, an instruction infringes Applicable Data Protection Law.
3.3 Security of Processing. CB Insights shall implement the technical and organizational measures, as set out in Annex II to the Standard Contractual Clauses attached to this DPA, designed to protect against the unauthorized or unlawful processing, accidental or unlawful destruction, loss or alteration or damage, and unauthorized disclosure or access to Personal Data.
3.4 Security Breach Notification. CB Insights shall notify Customer without undue delay upon becoming aware of a breach of Personal Data for which notification to Customer is required under Applicable Data Protection Law. To the extent that the cause of the breach of Personal Data can be reasonably mitigated by CB Insights, CB Insights shall use commercially reasonable efforts to mitigate such cause.
3.5 Audits and Inspections. Upon Customer’s reasonable request and subject to the confidentiality obligations set forth in the Agreement, CB Insights shall make available to Customer a copy of CB Insights’ then most recent third-party audits or certifications, to the extent applicable and available (the “Audit Report”) subject to CB Insights’ redaction of information reasonably determined by CB Insights to constitute “High Sensitivity” information. To the extent that additional information is necessary to satisfy Customer’s audit requirements under Applicable Data Protection Law, upon not less than thirty (30) days’ notice and at Customer’s expense, and not more frequently than once per 12-month period (unless required by Applicable Data Protection Law), Customer may request such additional information, up to and including remote inspections of the systems and processes involved in the Processing of Personal Data. Remote audits shall be performed in a manner that limits disruption to CB Insights’ business operations and in accordance with CB Insights’ security policies. CB Insights shall comply, as legally necessary, with audits by a competent Supervisory Authority (or other competent regulator of Personal Data) under Applicable Data Protection Law.
3.6 Data Subject Rights. Taking into account the nature of the processing and to the extent Customer cannot respond to a Data Subject request through functionality made available via the Services, CB Insights shall provide commercially reasonable assistance upon Customer’s request to enable Customer to fulfill its obligations with respect to responding to Data Subject requests under Applicable Data Protection Law.
3.7 Data Protection Impact Assessments and Prior Consultation. To the extent required by Applicable Data Protection Law in relation to the Processing of Personal Data by CB Insights, CB Insights shall render reasonable assistance to Customer in performing Data Protection Impact Assessments and providing Prior Consultation in accordance with Applicable Data Protection Law. CB Insights reserves the right to charge Customer for its reasonable expenses in providing such assistance.
3.8 Return or Deletion of Personal Data. As may be required by Applicable Data Protection Law, upon termination of the Services, CB Insights shall, upon Customer’s written request and/or as may be provided in the Agreement, return or delete Personal Data, including copies of such data in CB Insights’ custody or control, unless and only to the extent CB Insights has a legitimate legal basis for retaining such data. With respect to deletion, CB Insights shall utilize a commercially reasonable means of deletion and/or disposal of its choosing. If CB Insights retains Personal Data for legal reasons, CB Insights will only actively process such Personal Data in accordance with applicable law. Notwithstanding the foregoing, CB Insights may retain any anonymous information obtained through Customer’s use of the Services.
4.SUBPROCESSING
4.1 Appointment of Sub-processors. CB Insights may appoint and retain Sub-processors, which may include its Affiliates, in the Processing of Personal Data. Customer further agrees CB Insights’ Sub-processors may engage Sub-processors in the Processing of Personal Data. CB Insights shall remain responsible for the acts and omissions of its Sub-processors as for its own acts and omissions. Sub-processors shall be bound to Processing Personal Data consistent with the requirements hereunder and Applicable Data Protection Law.
4.2 General Authorization. CB Insights shall have Customer’s general authorization to engage Sub-processors from the Sub-processor List available here https://legal.cbinsights.com/, as may be updated from time-to-time.
4.3 Change in Sub-processors. CB Insights may remove, replace, and appoint new Sub-processors in its discretion upon ten (10) days written notice, which notice may be provided through CB Insights’ updating its Sub-processor List at https://legal.cbinsights.com/. Customer may object in writing to the appointment of a new Sub-processor on grounds of data protection within ten (10) days of CB Insights’ notice of such appointment, otherwise the appointment shall be deemed accepted by Customer. Any objection by Customer to the appointment of a Sub-processor shall be made in good faith and supported by reasonable information. Upon Customer making such an objection, CB Insights and Customer shall negotiate in good faith to reach a mutually agreeable resolution within thirty (30) days of CB Insights’ receipt of Customer’s objection. If a resolution cannot be reached within thirty (30) days of CB Insights’ receipt of Customer's objection, either Party may terminate the affected portion of the Services without further liability upon reasonable written notice.
5.AFFILIATES
5.1 Contractual Relationship. The Parties acknowledge and agree that, by executing the Agreement, Customer enters into the DPA in the name of and on behalf of itself and, as applicable, its Affiliates, thereby establishing a separate DPA between CB Insights and each such Affiliate subject to the provisions of the Agreement. Each Affiliate agrees to be bound by this DPA.
5.2 Communications. Customer, as the contracting party to the Agreement, is solely responsible for coordinating all communications with CB Insights under this DPA and making and receiving any communications in relation to this DPA on behalf of its Affiliates.
5.3 Rights of Affiliates. Where an Affiliate becomes a party to this DPA, it shall to the extent required under Applicable Data Protection Law be entitled to exercise the rights and seek remedies under this DPA, subject to the following:
Except where applicable Data Protection Law requires the Affiliate to exercise a right or seek any remedy under this DPA against CB Insights directly, the Parties agree that (i) Customer shall exercise any such right or seek any such remedy on behalf of the Affiliate, and (ii) Customer shall exercise any such right under this DPA not separately for each Affiliate individually but in a combined manner for itself and all of its Affiliates together.
6.TRANSFERS TO THIRD COUNTRIES
This Section 6 applies only if and to the extent that Personal Data Processed under the Agreement is transferred to a third country from the European Union/European Economic Area (“EU/EEA”), United Kingdom (“UK”), and/or Switzerland, not subject to an applicable adequacy decision.
6.1 Incorporation and Application of Standard Contractual Clauses. This DPA incorporates by reference the Standard Contractual Clauses for international transfers of Personal Data from the EU/EEA, UK, and Switzerland, respectively, as permissibly customized by the Parties. The Standard Contractual Clauses shall apply only if and to the extent Personal Data Processed under the Agreement is subject to a restriction on such transfer (e.g., a transfer not covered by an adequacy decision) under the GDPR, UK GDPR, or FADP (a “Restricted Transfer”).
To the extent that the Standard Contractual Clauses apply, the Standard Contractual Clauses shall prevail over contradictions between this DPA and the Standard Contractual Clauses with respect to the subject matter of the Standard Contractual Clauses.
Where Personal Data is subject to a Restricted Transfer from Switzerland, the Standard Contractual Clauses shall be modified in accordance with the following:
(a) “FDPIC” means the Swiss Federal Data Protection and Information Commissioner.
(b) “Revised FADP” means the revised version of the FADP of 25 September 2020, which is scheduled to come into force on 1 September 2023.
(c) The term “EU Member State” are not to be interpreted in such a way as to exclude data subjects in Switzerland from exercising their rights in their place of habitual residence (Switzerland) in accordance with Clause 18(c) of the Standard Contractual Clauses.
(d) The Standard Contractual Clauses shall also protect the data of legal entities until the entry into force of the Revised FADP.
(e) The FDPIC shall act as the “competent supervisory authority” insofar as the relevant data transfer is governed by the FADP.
6.2 Invalidation Event. In the event that the Standard Contractual Clauses are invalidated, replaced, superseded, or otherwise determined by an applicable competent authority to no longer provide adequate protection to a transfer of Personal Data to a relevant third country or countries (an “Invalidation Event”), the Parties agree to reasonably cooperate to adopt another appropriate transfer mechanism to prevent undue disruptions to the transfers of Personal Data to such third country or countries.
6.3 Transfer Impact Assessment. To the extent required by Applicable Data Protection Law, the Parties agree to reasonably cooperate to assess the risks associated with Restricted Transfers of Personal Data. The Parties agree that such assessment(s) shall be Confidential Information provided that disclosure to the Supervisory Authority is permitted by either Party upon the Supervisory Authority’s legitimate request for such information.
7.GENERAL TERMS
7.1 Term and Termination. The term of this DPA is identical to the term of the Agreement. Except as otherwise agreed herein, termination rights and requirements shall be the same as set forth in the Agreement.
7.2 Governing Law and Dispute Resolution. Governing law and dispute resolution shall be the same as set forth in the Agreement.
7.3 Notice. Any and all notices shall made be as set forth in the Agreement.
7.4 Amendment. This DPA may be amended from time-to-time by CB Insights in its sole discretion upon thirty (30) days’ notice to Customer.
7.5 Entire Agreement. This DPA constitutes the entire agreement between the Parties hereto with respect to the subject matter hereof and supersedes any and all prior written and/or oral agreements.
Schedule to the DPA
Controller/Exporter | Customer, as set forth in the Agreement |
Processor/Importer | CB Insights, as set forth in the Agreement |
Date of the Clauses | As of the date of the Agreement |
Module | Module Two: Transfer Controller to Processor |
Data Controller/Exporter is engaged in | Consumption of the specified Services under the Agreement |
Data Controller/Exporter is using the personal data which is being transferred for the following purposes or activities | CB Insights’ specified Services under the Agreement |
Data Processor/Importer is engaged in | The provision of the Services specified in the Agreement |
Categories of data subjects | The data subjects are those who are the object of the Processing set forth in the Agreement, namely Customer’s designated end users of the Services |
Categories of personal data | Controller/Exporter determines and controls, in its sole discretion, the information transferred by and through its consumption of the Services or as otherwise provided to CB Insights. |
Sensitive or special category data | n/a |
Frequency of the transfer | Continuous per Customer’s consumption of the Services |
Nature of the processing | Data Processor/Importer will Process Personal Data as necessary to perform the Services pursuant to the Agreement, as further specified in the Documentation, and as further instructed by Data Controller/Exporter in its use of the Services. Consistent with the Services, processing operations include receiving data, collection, accessing, retrieval, recording, and data entry; holding data, including storage, organisation and structuring; and using data, including analysing and testing. |
Purpose of the data transfer and further processing | To Process Personal Data as necessary to perform the Services pursuant to the Agreement and as further instructed by Controller/Exporter in its use of the Services |
Retention period (or criteria used to determine retention) | Personal Data is retained for the period of the Agreement unless otherwise retained for legal or compliance purposes or as otherwise permitted by Applicable Data Protection Law |
For the purposes of Clause 7 | Docking Clause is included |
For the purpose of Clause 9(a), use of sub-processors, the data importer has the Data Controller's/Exporter’s | General written authorization for the engagement of sub-processors in accordance with Section 4 of the DPA |
For the purposes of the Clause 9(a), the Data Processor/Importer shall specifically inform the Data Controller/Exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least | Ten (10) days in advance, in accordance with Section 4 of the DPA |
For the purposes of Clause 11, Redress | Option concerning redress with an independent dispute resolution body is not included |
For the purposes of Clause 13, the competent supervisory authority is | Republic of Ireland |
For the purposes of Clause 17, governing law shall be the law of the | Republic of Ireland |
For the purposes of Clause 18, choice of forum and jurisdiction shall be the | Republic of Ireland |
Technical and organisational measures including technical and organisational measures to ensure the security of the data | The technical and organization measures set forth in Annex II to the Standard Contractual Clauses (Appendix I to the DPA) |
Table 1: Parties
Start Date | As of the date of the Agreement | |
The Parties | Exporter (who sends the Restricted Transfer) | Importer (who receives the Restricted Transfer |
Parties’ details | Customer, as set forth in the Agreement | CB Insights, as set forth in the Agreement |
Key Contact | As set forth in the Agreement, or as provided to CB Insights upon request | As set forth in the Agreement, or as provided to Customer upon request |
Table 2: Selected SCCs, Modules and Selected Clauses
Addendum EU SCCs | ☒ the Approved EU SCCs, including the Appendix Information and with only the above modules, clauses or optional provisions of the Approved EU SCCs brought into effect for the purposes of this Addendum. |
Table 3: Appendix Information
“Appendix Information” means the information which must be provided for the selected modules as set out in the Appendix of the Approved EU SCCs (other than the Parties), and which for this Addendum is set out in:
Annex 1A: List of Parties: as set out in section (1) of the Schedule to the DPA
Annex 1B: Description of Transfer: as set out in section (1) of the Schedule to the DPA
Annex II: Technical and organisational measures including technical and organisational measures to ensure the security of the data: as set out in Annex II to the Standard Contractual Clauses attached to the DPA
Annex III: List of Sub processors (Modules 2 and 3 only): as set out in Annex III to the Standard Contractual Clauses attached to the DPA
Table 4: Ending this Addendum when the Approved Addendum Changes
Ending this Addendum when the Approved Addendum changes | ☒ Importer ☒ Exporter |
APPENDIX I
STANDARD CONTRACTUAL CLAUSES
SECTION I
Clause 1
Purpose and scope
(b) The Parties:
(i) the natural or legal person(s), public authority/ies, agency/ies or other body/ies (hereinafter ‘entity/ies’) transferring the personal data, as listed in Annex I.A (hereinafter each ‘data exporter’), and
(ii) the entity/ies in a third country receiving the personal data from the data exporter, directly or indirectly via another entity also Party to these Clauses, as listed in Annex I.A (hereinafter each ‘data importer’)
have agreed to these standard contractual clauses (hereinafter: ‘Clauses’).
(c) These Clauses apply with respect to the transfer of personal data as specified in Annex I.B.
(d) The Appendix to these Clauses containing the Annexes referred to therein forms an integral part of these Clauses.
Clause 2
Effect and invariability of the Clauses
Clause 3
Third-party beneficiaries
(b) Paragraph (a) is without prejudice to rights of data subjects under Regulation (EU) 2016/679.
Clause 4
Interpretation
Clause 5
Hierarchy
In the event of a contradiction between these Clauses and the provisions of related agreements between the Parties, existing at the time these Clauses are agreed or entered into thereafter, these Clauses shall prevail.
Clause 6
Description of the transfer(s)
The details of the transfer(s), and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred, are specified in Annex I.B.
Clause 7
Docking clause
(a) An entity that is not a Party to these Clauses may, with the agreement of the Parties, accede to these Clauses at any time, either as a data exporter or as a data importer, by completing the Appendix and signing Annex I.A.
(c) The acceding entity shall have no rights or obligations arising under these Clauses from the period prior to becoming a Party.
SECTION II – OBLIGATIONS OF THE PARTIES
Clause 8
Data protection safeguards
The data exporter warrants that it has used reasonable efforts to determine that the data importer is able, through the implementation of appropriate technical and organisational measures, to satisfy its obligations under these Clauses.
8.1 Instructions
(a) The data importer shall process the personal data only on documented instructions from the data exporter. The data exporter may give such instructions throughout the duration of the contract.
(b) The data importer shall immediately inform the data exporter if it is unable to follow those instructions.
8.2 Purpose limitation
The data importer shall process the personal data only for the specific purpose(s) of the transfer, as set out in Annex I.B, unless on further instructions from the data exporter.
8.3 Transparency
On request, the data exporter shall make a copy of these Clauses, including the Appendix as completed by the Parties, available to the data subject free of charge. To the extent necessary to protect business secrets or other confidential information, including the measures described in Annex II and personal data, the data exporter may redact part of the text of the Appendix to these Clauses prior to sharing a copy, but shall provide a meaningful summary where the data subject would otherwise not be able to understand the its content or exercise his/her rights. On request, the Parties shall provide the data subject with the reasons for the redactions, to the extent possible without revealing the redacted information. This Clause is without prejudice to the obligations of the data exporter under Articles 13 and 14 of Regulation (EU) 2016/679.
8.4 Accuracy
If the data importer becomes aware that the personal data it has received is inaccurate, or has become outdated, it shall inform the data exporter without undue delay. In this case, the data importer shall cooperate with the data exporter to erase or rectify the data.
8.5 Duration of processing and erasure or return of data
Processing by the data importer shall only take place for the duration specified in Annex I.B. After the end of the provision of the processing services, the data importer shall, at the choice of the data exporter, delete all personal data processed on behalf of the data exporter and certify to the data exporter that it has done so, or return to the data exporter all personal data processed on its behalf and delete existing copies. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit return or deletion of the personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process it to the extent and for as long as required under that local law. This is without prejudice to Clause 14, in particular the requirement for the data importer under Clause 14(e) to notify the data exporter throughout the duration of the contract if it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under Clause 14(a).
8.6 Security of processing
(a) The data importer and, during transmission, also the data exporter shall implement appropriate technical and organisational measures to ensure the security of the data, including protection against a breach of security leading to accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access to that data (hereinafter ‘personal data breach’). In assessing the appropriate level of security, the Parties shall take due account of the state of the art, the costs of implementation, the nature, scope, context and purpose(s) of processing and the risks involved in the processing for the data subjects. The Parties shall in particular consider having recourse to encryption or pseudonymisation, including during transmission, where the purpose of processing can be fulfilled in that manner. In case of pseudonymisation, the additional information for attributing the personal data to a specific data subject shall, where possible, remain under the exclusive control of the data exporter. In complying with its obligations under this paragraph, the data importer shall at least implement the technical and organisational measures specified in Annex II. The data importer shall carry out regular checks to ensure that these measures continue to provide an appropriate level of security.
(b) The data importer shall grant access to the personal data to members of its personnel only to the extent strictly necessary for the implementation, management and monitoring of the contract. It shall ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
(c) In the event of a personal data breach concerning personal data processed by the data importer under these Clauses, the data importer shall take appropriate measures to address the breach, including measures to mitigate its adverse effects. The data importer shall also notify the data exporter without undue delay after having become aware of the breach. Such notification shall contain the details of a contact point where more information can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and personal data records concerned), its likely consequences and the measures taken or proposed to address the breach including, where appropriate, measures to mitigate its possible adverse effects. Where, and in so far as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available and further information shall, as it becomes available, subsequently be provided without undue delay.
(d) The data importer shall cooperate with and assist the data exporter to enable the data exporter to comply with its obligations under Regulation (EU) 2016/679, in particular to notify the competent supervisory authority and the affected data subjects, taking into account the nature of processing and the information available to the data importer.
8.7 Sensitive data
Where the transfer involves personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, or biometric data for the purpose of uniquely identifying a natural person, data concerning health or a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter ‘sensitive data’), the data importer shall apply the specific restrictions and/or additional safeguards described in Annex I.B.
8.8 Onward transfers
The data importer shall only disclose the personal data to a third party on documented instructions from the data exporter. In addition, the data may only be disclosed to a third party located outside the European Union (2) (in the same country as the data importer or in another third country, hereinafter ‘onward transfer’) if the third party is or agrees to be bound by these Clauses, under the appropriate Module, or if:
(i) the onward transfer is to a country benefitting from an adequacy decision pursuant to Article 45 of Regulation (EU) 2016/679 that covers the onward transfer;
(ii) the third party otherwise ensures appropriate safeguards pursuant to Articles 46 or 47 Regulation of (EU) 2016/679 with respect to the processing in question;
(iii) the onward transfer is necessary for the establishment, exercise or defence of legal claims in the context of specific administrative, regulatory or judicial proceedings; or
(iv)the onward transfer is necessary in order to protect the vital interests of the data subject or of another natural person.
Any onward transfer is subject to compliance by the data importer with all the other safeguards under these Clauses, in particular purpose limitation.
8.9 Documentation and compliance
(a) The data importer shall promptly and adequately deal with enquiries from the data exporter that relate to the processing under these Clauses.
(b) The Parties shall be able to demonstrate compliance with these Clauses. In particular, the data importer shall keep appropriate documentation on the processing activities carried out on behalf of the data exporter.
(c) The data importer shall make available to the data exporter all information necessary to demonstrate compliance with the obligations set out in these Clauses and at the data exporter’s request, allow for and contribute to audits of the processing activities covered by these Clauses, at reasonable intervals or if there are indications of non-compliance. In deciding on a review or audit, the data exporter may take into account relevant certifications held by the data importer.
(d) The data exporter may choose to conduct the audit by itself or mandate an independent auditor. Audits may include inspections at the premises or physical facilities of the data importer and shall, where appropriate, be carried out with reasonable notice.
(e) The Parties shall make the information referred to in paragraphs (b) and (c), including the results of any audits, available to the competent supervisory authority on request.
Clause 9
Use of sub-processors
(a) GENERAL WRITTEN AUTHORISATION The data importer has the data exporter’s general authorisation for the engagement of sub-processor(s) from an agreed list. The data importer shall specifically inform the data exporter in writing of any intended changes to that list through the addition or replacement of sub-processors at least ten (10) days in advance, thereby giving the data exporter sufficient time to be able to object to such changes prior to the engagement of the sub-processor(s). The data importer shall provide the data exporter with the information necessary to enable the data exporter to exercise its right to object.
(b) Where the data importer engages a sub-processor to carry out specific processing activities (on behalf of the data exporter), it shall do so by way of a written contract that provides for, in substance, the same data protection obligations as those binding the data importer under these Clauses, including in terms of third-party beneficiary rights for data subjects. (3) The Parties agree that, by complying with this Clause, the data importer fulfils its obligations under Clause 8.8. The data importer shall ensure that the sub-processor complies with the obligations to which the data importer is subject pursuant to these Clauses.
(c) The data importer shall provide, at the data exporter’s request, a copy of such a sub-processor agreement and any subsequent amendments to the data exporter. To the extent necessary to protect business secrets or other confidential information, including personal data, the data importer may redact the text of the agreement prior to sharing a copy.
(d) The data importer shall remain fully responsible to the data exporter for the performance of the sub-processor’s obligations under its contract with the data importer. The data importer shall notify the data exporter of any failure by the sub-processor to fulfil its obligations under that contract.
(e) The data importer shall agree a third-party beneficiary clause with the sub-processor whereby – in the event the data importer has factually disappeared, ceased to exist in law or has become insolvent – the data exporter shall have the right to terminate the sub-processor contract and to instruct the sub-processor to erase or return the personal data.
Clause 10
Data subject rights
(a) The data importer shall promptly notify the data exporter of any request it has received from a data subject. It shall not respond to that request itself unless it has been authorised to do so by the data exporter.
(b) The data importer shall assist the data exporter in fulfilling its obligations to respond to data subjects’ requests for the exercise of their rights under Regulation (EU) 2016/679. In this regard, the Parties shall set out in Annex II the appropriate technical and organisational measures, taking into account the nature of the processing, by which the assistance shall be provided, as well as the scope and the extent of the assistance required.
(c) In fulfilling its obligations under paragraphs (a) and (b), the data importer shall comply with the instructions from the data exporter.
Clause 11
Redress
(a) The data importer shall inform data subjects in a transparent and easily accessible format, through individual notice or on its website, of a contact point authorised to handle complaints. It shall deal promptly with any complaints it receives from a data subject.
(b) In case of a dispute between a data subject and one of the Parties as regards compliance with these Clauses, that Party shall use its best efforts to resolve the issue amicably in a timely fashion. The Parties shall keep each other informed about such disputes and, where appropriate, cooperate in resolving them.
(c) Where the data subject invokes a third-party beneficiary right pursuant to Clause 3, the data importer shall accept the decision of the data subject to:
(i) lodge a complaint with the supervisory authority in the Member State of his/her habitual residence or place of work, or the competent supervisory authority pursuant to Clause 13;
(ii) refer the dispute to the competent courts within the meaning of Clause 18.
(d) The Parties accept that the data subject may be represented by a not-for-profit body, organisation or association under the conditions set out in Article 80(1) of Regulation (EU) 2016/679.
(e) The data importer shall abide by a decision that is binding under the applicable EU or Member State law.
(f) The data importer agrees that the choice made by the data subject will not prejudice his/her substantive and procedural rights to seek remedies in accordance with applicable laws.
Clause 12
Liability
(a) Each Party shall be liable to the other Party/ies for any damages it causes the other Party/ies by any breach of these Clauses.
(b) The data importer shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data importer or its sub-processor causes the data subject by breaching the third-party beneficiary rights under these Clauses.
(c) Notwithstanding paragraph (b), the data exporter shall be liable to the data subject, and the data subject shall be entitled to receive compensation, for any material or non-material damages the data exporter or the data importer (or its sub-processor) causes the data subject by breaching the third-party beneficiary rights under these Clauses. This is without prejudice to the liability of the data exporter and, where the data exporter is a processor acting on behalf of a controller, to the liability of the controller under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, as applicable.
(d) The Parties agree that if the data exporter is held liable under paragraph (c) for damages caused by the data importer (or its sub-processor), it shall be entitled to claim back from the data importer that part of the compensation corresponding to the data importer’s responsibility for the damage.
(e) Where more than one Party is responsible for any damage caused to the data subject as a result of a breach of these Clauses, all responsible Parties shall be jointly and severally liable and the data subject is entitled to bring an action in court against any of these Parties.
(f) The Parties agree that if one Party is held liable under paragraph (e), it shall be entitled to claim back from the other Party/ies that part of the compensation corresponding to its/their responsibility for the damage.
(g) The data importer may not invoke the conduct of a sub-processor to avoid its own liability.
Clause 13
Supervision
(a) [Where the data exporter is established in an EU Member State:] The supervisory authority with responsibility for ensuring compliance by the data exporter with Regulation (EU) 2016/679 as regards the data transfer, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) and has appointed a representative pursuant to Article 27(1) of Regulation (EU) 2016/679:] The supervisory authority of the Member State in which the representative within the meaning of Article 27(1) of Regulation (EU) 2016/679 is established, as indicated in Annex I.C, shall act as competent supervisory authority.
[Where the data exporter is not established in an EU Member State, but falls within the territorial scope of application of Regulation (EU) 2016/679 in accordance with its Article 3(2) without however having to appoint a representative pursuant to Article 27(2) of Regulation (EU) 2016/679:] The supervisory authority of one of the Member States in which the data subjects whose personal data is transferred under these Clauses in relation to the offering of goods or services to them, or whose behaviour is monitored, are located, as indicated in Annex I.C, shall act as competent supervisory authority.
(b) The data importer agrees to submit itself to the jurisdiction of and cooperate with the competent supervisory authority in any procedures aimed at ensuring compliance with these Clauses. In particular, the data importer agrees to respond to enquiries, submit to audits and comply with the measures adopted by the supervisory authority, including remedial and compensatory measures. It shall provide the supervisory authority with written confirmation that the necessary actions have been taken.
SECTION III – LOCAL LAWS AND OBLIGATIONS IN CASE OF ACCESS BY PUBLIC AUTHORITIES
Clause 14
Local laws and practices affecting compliance with the Clauses
(a) The Parties warrant that they have no reason to believe that the laws and practices in the third country of destination applicable to the processing of the personal data by the data importer, including any requirements to disclose personal data or measures authorising access by public authorities, prevent the data importer from fulfilling its obligations under these Clauses. This is based on the understanding that laws and practices that respect the essence of the fundamental rights and freedoms and do not exceed what is necessary and proportionate in a democratic society to safeguard one of the objectives listed in Article 23(1) of Regulation (EU) 2016/679, are not in contradiction with these Clauses.
(b) The Parties declare that in providing the warranty in paragraph (a), they have taken due account in particular of the following elements:
(i) the specific circumstances of the transfer, including the length of the processing chain, the number of actors involved and the transmission channels used; intended onward transfers; the type of recipient; the purpose of processing; the categories and format of the transferred personal data; the economic sector in which the transfer occurs; the storage location of the data transferred;
(ii) the laws and practices of the third country of destination– including those requiring the disclosure of data to public authorities or authorising access by such authorities – relevant in light of the specific circumstances of the transfer, and the applicable limitations and safeguards (4);
(iii) any relevant contractual, technical or organisational safeguards put in place to supplement the safeguards under these Clauses, including measures applied during transmission and to the processing of the personal data in the country of destination.
(c) The data importer warrants that, in carrying out the assessment under paragraph (b), it has made its best efforts to provide the data exporter with relevant information and agrees that it will continue to cooperate with the data exporter in ensuring compliance with these Clauses.
(d) The Parties agree to document the assessment under paragraph (b) and make it available to the competent supervisory authority on request.
(e) The data importer agrees to notify the data exporter promptly if, after having agreed to these Clauses and for the duration of the contract, it has reason to believe that it is or has become subject to laws or practices not in line with the requirements under paragraph (a), including following a change in the laws of the third country or a measure (such as a disclosure request) indicating an application of such laws in practice that is not in line with the requirements in paragraph (a).
(f) Following a notification pursuant to paragraph (e), or if the data exporter otherwise has reason to believe that the data importer can no longer fulfil its obligations under these Clauses, the data exporter shall promptly identify appropriate measures (e.g. technical or organisational measures to ensure security and confidentiality) to be adopted by the data exporter and/or data importer to address the situation. The data exporter shall suspend the data transfer if it considers that no appropriate safeguards for such transfer can be ensured, or if instructed by the competent supervisory authority to do so. In this case, the data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses. If the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise. Where the contract is terminated pursuant to this Clause, Clause 16(d) and (e) shall apply.
Clause 15
Obligations of the data importer in case of access by public authorities
15.1 Notification
(a) The data importer agrees to notify the data exporter and, where possible, the data subject promptly (if necessary with the help of the data exporter) if it:
(i) receives a legally binding request from a public authority, including judicial authorities, under the laws of the country of destination for the disclosure of personal data transferred pursuant to these Clauses; such notification shall include information about the personal data requested, the requesting authority, the legal basis for the request and the response provided; or
(ii) becomes aware of any direct access by public authorities to personal data transferred pursuant to these Clauses in accordance with the laws of the country of destination; such notification shall include all information available to the importer.
(b) If the data importer is prohibited from notifying the data exporter and/or the data subject under the laws of the country of destination, the data importer agrees to use its best efforts to obtain a waiver of the prohibition, with a view to communicating as much information as possible, as soon as possible. The data importer agrees to document its best efforts in order to be able to demonstrate them on request of the data exporter.
(c) Where permissible under the laws of the country of destination, the data importer agrees to provide the data exporter, at regular intervals for the duration of the contract, with as much relevant information as possible on the requests received (in particular, number of requests, type of data requested, requesting authority/ies, whether requests have been challenged and the outcome of such challenges, etc.).
(d) The data importer agrees to preserve the information pursuant to paragraphs (a) to (c) for the duration to the contract and make it available to the competent supervisory authority on request.
(e) Paragraphs (a) to (c) are without prejudice to the obligation of the data importer pursuant to Clause 14(e) and Clause 16 to inform the data exporter promptly where it is unable to comply with these Clauses.
15.2 Review of legality and data minimisation
(a) The data importer agrees to review the legality of the request for disclosure, in particular whether it remains within the powers granted to the requesting public authority, and to challenge the request if, after careful assessment, it concludes that there are reasonable grounds to consider that the request is unlawful under the laws of the country of destination, applicable obligations under international law and principles of international comity. The data importer shall, under the same conditions, pursue possibilities of appeal. When challenging a request, the data importer shall seek interim measures with a view to suspending the effects of the request until the competent judicial authority has decided on its merits. It shall not disclose the personal data requested until required to do so under the applicable procedural rules. These requirements are without prejudice to the obligations of the data importer under Clause 14(e).
(b) The data importer agrees to document its legal assessment and any challenge to the request for disclosure and, to the extent permissible under the laws of the country of destination, make the documentation available to the data exporter. It shall also make it available to the competent supervisory authority on request.
(c) The data importer agrees to provide the minimum amount of information permissible when responding to a request for disclosure, based on a reasonable interpretation of the request.
SECTION IV – FINAL PROVISIONS
Clause 16
Non-compliance with the Clauses and termination
(a) The data importer shall promptly inform the data exporter if it is unable to comply with these Clauses, for whatever reason.
(b) In the event that the data importer is in breach of these Clauses or unable to comply with these Clauses, the data exporter shall suspend the transfer of personal data to the data importer until compliance is again ensured or the contract is terminated. This is without prejudice to Clause 14(f).
(c) The data exporter shall be entitled to terminate the contract, insofar as it concerns the processing of personal data under these Clauses, where:
(i) the data exporter has suspended the transfer of personal data to the data importer pursuant to paragraph (b) and compliance with these Clauses is not restored within a reasonable time and in any event within one month of suspension;
(ii) the data importer is in substantial or persistent breach of these Clauses; or
(iii) the data importer fails to comply with a binding decision of a competent court or supervisory authority regarding its obligations under these Clauses.
In these cases, it shall inform the competent supervisory authority of such non-compliance. Where the contract involves more than two Parties, the data exporter may exercise this right to termination only with respect to the relevant Party, unless the Parties have agreed otherwise.
(d) Personal data that has been transferred prior to the termination of the contract pursuant to paragraph (c) shall at the choice of the data exporter immediately be returned to the data exporter or deleted in its entirety. The same shall apply to any copies of the data. The data importer shall certify the deletion of the data to the data exporter. Until the data is deleted or returned, the data importer shall continue to ensure compliance with these Clauses. In case of local laws applicable to the data importer that prohibit the return or deletion of the transferred personal data, the data importer warrants that it will continue to ensure compliance with these Clauses and will only process the data to the extent and for as long as required under that local law.
(e) Either Party may revoke its agreement to be bound by these Clauses where (i) the European Commission adopts a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 that covers the transfer of personal data to which these Clauses apply; or (ii) Regulation (EU) 2016/679 becomes part of the legal framework of the country to which the personal data is transferred. This is without prejudice to other obligations applying to the processing in question under Regulation (EU) 2016/679.
Clause 17
Governing law
These Clauses shall be governed by the law of one of the EU Member States, provided such law allows for third party beneficiary rights. The Parties agree that this shall be the law set forth in the Schedule to the DPA.
Clause 18
Choice of forum and jurisdiction
(a) Any dispute arising from these Clauses shall be resolved by the courts of an EU Member State.
(b) The Parties agree that those shall be the courts set forth in the Schedule to the DPA.
(c) A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of the Member State in which he/she has his/her habitual residence.
(d) The Parties agree to submit themselves to the jurisdiction of such courts.
ANNEX I
A. LIST OF PARTIES
Data exporter(s): As set forth in the Schedule to the DPA
Data importer(s): As set forth in the Schedule to the DPA
B. DESCRIPTION OF TRANSFER
Categories of data subjects whose personal data is transferred
As set forth in the Schedule to the DPA
Categories of personal data transferred
As set forth in the Schedule to the DPA
Sensitive data transferred (if applicable) and applied restrictions or safeguards that fully take into consideration the nature of the data and the risks involved, such as for instance strict purpose limitation, access restrictions (including access only for staff having followed specialised training), keeping a record of access to the data, restrictions for onward transfers or additional security measures.
N/A
The frequency of the transfer (e.g. whether the data is transferred on a one-off or continuous basis).
As set forth in the Schedule to the DPA
Nature of the processing
As set forth in the Schedule to the DPA
Purpose(s) of the data transfer and further processing
As set forth in the Schedule to the DPA
The period for which the personal data will be retained, or, if that is not possible, the criteria used to determine that period
As set forth in the Schedule to the DPA
For transfers to (sub-) processors, also specify subject matter, nature and duration of the processing:
See DPA and list of sub-processors at https://legal.cbinsights.com/
C. COMPETENT SUPERVISORY AUTHORITY
Identify the competent supervisory authority/ies in accordance with Clause 13
As set forth in the Schedule to the DPA
ANNEX II
TECHNICAL AND ORGANISATIONAL MEASURES INCLUDING TECHNICAL AND ORGANISATIONAL MEASURES TO ENSURE THE SECURITY OF THE DATA
Description of the technical and organisational measures implemented by the data importer(s) (including any relevant certifications) to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
Network and Access Security. Users are required to log in over SSL. Login submissions are encrypted upon submission. Passwords are salted and hashed when stored in the database. Personal Data of users is stored in a separate database to platform data with different access credentials. Data importer will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data uploaded to the Services. Data Importer will not materially decrease the overall security of the SCC Services during a subscription term.
Information Security Program. CBI maintains and will continue to maintain an information security program, adopting and enforcing internal policies and procedures necessary to: (a) help Licensee secure Personal Data against accidental or unlawful loss, access, or disclosure, (b) identify reasonably foreseeable and internal risks to security and unauthorized access to any of CBI’s servers, networking equipment, and other related systems (“CBI Network”), and (c) minimize security risks, including through risk assessment and regular testing. CBI will designate one or more employees to coordinate and be accountable for the information security program. The information security program will include the following measures.
Network Security. The CBI Network is accessible to employees, contractors, and other persons only as necessary to provide the Services. CBI maintains and will maintain access controls and policies to determine and manage access permission to the CBI Network from each network connection and user, inclusive of firewalls or functionally equivalent technology and authentication controls. CBI maintains or will maintain corrective action and incident response plans to respond to potential security threats.
Limited Access. CBI provides access to the CBI Network to those employees and contractors who have a legitimate business need for such access privileges. When an employee or contractor no longer has a business need for the access privileges assigned to them, the access privileges are promptly revoked, even if the employee or contractor continues to be an employee of CBI.
CBI Physical Security. Although most of the Services are hosted on certain AWS Networks in AWS Facilities (as defined below, respectively). Physical components of the CBI Network are housed in the CBI office (“CBI Offices”). Physical barrier controls are used to prevent unauthorized entrance to the CBI Offices both at the building entrance and at building access points. Passage through the physical barriers at the CBI Offices requires either electronic access control validation (e.g., card access systems, etc.) or validation by human security personnel. CBI employees and contractors are assigned photo-ID badges that must be carried within the CBI Offices. Visitors are required to sign-in with designated personnel, must show appropriate identification. Access points to the CBI Offices are monitored by video surveillance cameras designed to record all individuals accessing the CBI Offices. CBI also maintains electronic intrusion detection systems designed to detect unauthorized access to the CBI Offices.
Continued Evaluation. CBI will conduct periodic reviews of the security of the CBI Network and adequacy of its information security program as measured against industry security standards and its policies and procedures. CBI will continually evaluate the security of the CBI Network and associated Services to determine whether additional or different security measures are required to respond to new security risks or findings generated by the periodic reviews.
AWS Physical Security. In addition to the CBI Network, the Services are hosted on certain AWS data center facilities, servers, networking equipment, and host software systems all located in the United States (e.g., virtual firewalls) and which are within AWS’s control (“AWS Network”). Physical components of the AWS Network are housed in nondescript facilities (“AWS Facilities”). Physical barrier controls are used to prevent unauthorized entrance to the AWS Facilities both at the perimeter and at building access points. Passage through the physical barriers at the AWS Facilities requires either electronic access control validation (e.g., card access systems, etc.) or validation by human security personnel (e.g., contract or in-house security guard service, receptionist, etc.). AWS employees and contractors are assigned photo-ID badges that must be worn while the employees and contractors are at any of the AWS Facilities. Visitors are required to sign-in with designated personnel, must show appropriate identification, are assigned a visitor ID badge that must be worn while the visitor is at any of the AWS Facilities, and are continually escorted by authorized employees or contractors while visiting the AWS Facilities. All access points (other than main entry doors) are maintained in a secured (locked) state. Access points to the AWS Facilities are monitored by video surveillance cameras designed to record all individuals accessing the Facilities. AWS also maintains electronic intrusion detection systems designed to detect unauthorized access to the AWS Facilities, including monitoring points of vulnerability (e.g., primary entry doors, emergency egress doors, roof hatches, dock bay doors, etc.) with door contacts, glass breakage devices, interior motion-detection, or other devices designed to detect individuals attempting to gain access to the Facilities. All physical access to the AWS Facilities by AWS employees and contractors is logged and routinely audited.
ANNEX III
LIST OF SUB-PROCESSORS
The controller has granted the processor general authorization to engage sub-processors. Such sub-processors are set forth here https://legal.cbinsights.com/, which list may be updated from time-to-time pursuant to Section 4 of the Data Processing Agreement.
Standard Data Protection Clauses to be issued by the Commissioner under S119A(1) Data Protection Act 2018 International Data Transfer Addendum to the EU Commission Standard Contractual Clauses
VERSION B1.0, in force 21 March 2022
This Addendum has been issued by the Information Commissioner for Parties making Restricted Transfers. The Information Commissioner considers that it provides Appropriate Safeguards for Restricted Transfers when it is entered into as a legally binding contract.
Part 1: Tables
As set forth in the Schedule to the DPA.
Part 2: Mandatory Clauses
Entering into this Addendum
Interpretation of this Addendum
Addendum | This International Data Transfer Addendum which is made up of this Addendum incorporating the Addendum EU SCCs. |
Addendum EU SCCs | The version(s) of the Approved EU SCCs which this Addendum is appended to, as set out in Table 2, including the Appendix Information. |
Appendix Information | As set out in Table 3. |
Appropriate Safeguards | The standard of protection over the personal data and of data subjects’ rights, which is required by UK Data Protection Laws when you are making a Restricted Transfer relying on standard data protection clauses under Article 46(2)(d) UK GDPR. |
Approved Addendum | The template Addendum issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18. |
Approved EU SCCs | The Standard Contractual Clauses set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021. |
ICO | The Information Commissioner. |
Restricted Transfer | A transfer which is covered by Chapter V of the UK GDPR. |
UK | The United Kingdom of Great Britain and Northern Ireland. |
UK Data Protection Laws | All laws relating to data protection, the processing of personal data, privacy and/or electronic communications in force from time to time in the UK, including the UK GDPR and the Data Protection Act 2018. |
UK GDPR | As defined in section 3 of the Data Protection Act 2018. |
Hierarchy
Incorporation of and changes to the EU SCCs
“and, with respect to data transfers from controllers to processors and/or processors to processors, standard contractual clauses pursuant to Article 28(7) of Regulation (EU) 2016/679”;
“The details of the transfers(s) and in particular the categories of personal data that are transferred and the purpose(s) for which they are transferred) are those specified in Annex I.B where UK Data Protection Laws apply to the data exporter’s processing when making that transfer.”;
“it is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer”;
“the onward transfer is to a country benefitting from adequacy regulations pursuant to Section 17A of the UK GDPR that covers the onward transfer;”
“the Secretary of State makes regulations pursuant to Section 17A of the Data Protection Act 2018 that cover the transfer of personal data to which these clauses apply;”;
“These Clauses are governed by the laws of England and Wales.”;
“Any dispute arising from these Clauses shall be resolved by the courts of England and Wales. A data subject may also bring legal proceedings against the data exporter and/or data importer before the courts of any country in the UK. The Parties agree to submit themselves to the jurisdiction of such courts.”; and
Amendments to this Addendum
16. The Parties may agree to change Clauses 17 and/or 18 of the Addendum EU SCCs to refer to the laws and/or courts of Scotland or Northern Ireland.
The revised Approved Addendum will specify the start date from which the changes to the Approved Addendum are effective and whether the Parties need to review this Addendum including the Appendix Information. This Addendum is automatically amended as set out in the revised Approved Addendum from the start date specified.
and in either case it has first taken reasonable steps to reduce those costs or risks so that it is not substantial and disproportionate, then that Party may end this Addendum at the end of a reasonable notice period, by providing written notice for that period to the other Party before the start date of the revised Approved Addendum.
Alternative Part 2 Mandatory Clauses:
Mandatory Clauses | Part 2: Mandatory Clauses of the Approved Addendum, being the template Addendum B.1.0 issued by the ICO and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18 of those Mandatory Clauses. |
Effective June 28th 2023 to July 3rd 2023
DownloadTable of Contents
- Scope and Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Licensee is the Controller, CBI is the Processor and that CBI will engage Sub-processors pursuant to the requirements set forth in Section 4 (“Sub-processors”) below.
- Licensee's Processing of Personal Data. Licensee shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations, including any applicable requirement to provide notice to Data Subjects of the use of CBI as Processor. For the avoidance of doubt, Licensee's instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Licensee shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Licensee acquired Personal Data. Licensee specifically acknowledges that its use of the Services will not violate the rights of any Data Subject that has opted-out from sales or other disclosures of Personal Data, to the extent applicable under the CCPA.
- CBI's Processing of Personal Data. CBI shall treat Personal Data as Confidential Information and shall Process Personal Data on behalf of and only in accordance with Licensee's documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable Order Form(s); (ii) Processing initiated by Users in their use of the Services; and (iii) Processing to comply with other documented reasonable instructions provided by Licensee (e.g., via email) where such instructions are consistent with the terms of the Agreement. Additionally, CBI shall:
- only act on the written instructions of Licensee (unless required by law to act without such instructions);
- ensure that people processing the Personal Data are subject to a duty of confidence;
- take appropriate technical and organizational measures to ensure that the security of Processing is appropriate to the risk, taking account of the state of the art, the costs of implementation, and the nature, scope, context and purpose of the Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons;
- assist Licensee in meeting its GDPR obligations in relation to the security of Processing, the notification of Licensee Data Incidents (as defined herein), prior consultation with the relevant GDPR supervisory authority, and data protection impact assessments; and
- submit to reasonable audits; provide Licensee with reasonable information it needs to ensure that both parties are meeting obligations under the GDPR; and inform Licensee immediately if asked to act in any way infringing the GDPR or other Data Protection Laws and Regulations
- Details of the Processing.
- Subject Matter: User access of the Services.
- Duration: the duration of the Agreement.
- Purpose: provision of the Services, initiated by Users.
- Nature of the Processing: Personal Data to be processed at User login and sent to CBI’s authentication server (Amazon Web Services servers), which Personal Data is used to find the encrypted password and match with User’s entered credentials. Personal Data and non-identifying ID stored on the server for the duration of the login session.
- Type of Personal Data: Email addresses (including name) and IP addresses at User login.
- Categories of Data Subjects: Users, which are limited to Licensee’s and its Affiliates’ employees or agents, who have an email address with Licensee or its Affiliates and have access to the Services under an Order Form.
- Contractual Relationship. The parties acknowledge and agree that, by executing this DPA, Licensee enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate DPA between CBI and each such Authorized Affiliate subject to the provisions of the Agreement and this Section 8 and Section 9. Each Authorized Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the avoidance of doubt, an Authorized Affiliate is not and does not become a party to the Agreement and is only a party to the DPA. All access to and use of the Services by Authorized Affiliates must comply with the terms and conditions of the Agreement and any violation of the terms and conditions of the Agreement by an Authorized Affiliate shall be deemed a violation by Licensee.
- Communication. The Licensee that is the contracting party to the Agreement shall remain responsible for coordinating all communication with CBI under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.
- Rights of Authorized Affiliates. Where an Authorized Affiliate becomes a party to the DPA with CBI, it shall to the extent required under applicable Data Protection Laws and Regulations be entitled to exercise the rights and seek remedies under this DPA, subject to the following:
- Except where applicable Data Protection Laws and Regulations require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against CBI directly by itself, the parties agree that (i) solely the Licensee that is the contracting party to the Agreement shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) the Licensee that is the contracting party to the Agreement shall exercise any such rights under this DPA not separately for each Authorized Affiliate individually but in a combined manner for itself and all of its Authorized Affiliates together (as set forth, for example, in Section 8.3.2, below).
- The parties agree that the Licensee that is the contracting party to the Agreement shall, when carrying out an on• site audit of the procedures relevant to the protection of Personal Data, take all reasonable measures to limit any impact on CBI and its Sub-Processors by combining, to the extent reasonably possible, several audit requests carried out on behalf of itself and all of its Authorized Affiliates in one single audit.
- DEFINITIONS
- 'personal data ', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
- 'the data exporter' means the controller who transfers the personal data;
- 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country ' s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
- 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
- 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established ;
- 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
- The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to U), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
- The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
- The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data expo1ier and the importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
- that the process i ng, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
- that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
- that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
- that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
- that it will ensure compliance with the security measures;
- that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
- to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
- to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures , as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
- that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
- that it will ensure compliance with Clause 4(a) to (i).
- to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses ; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
- that it will promptly notify the data exporter about:
- any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
- any accidental or unauthorised access, and
- any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
- to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
- at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
- to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial in formation, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
- that, in the event of subprocess in g, it has previously informed the data exporter and obtained its prior written consent;
- that the processing services by the subprocessor will be carried out in accordance with Clause 11;
- The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
- If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
- If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
- to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
- to refer the dispute to the courts in the Member State in which the data exporter is established.
- The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
- The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
- The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
- The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
- The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
- The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
- The Clauses shall be governed by the law of the Member State in which the data exporter is established.
- The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
- The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
- The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
Effective February 10th 2023 to June 28th 2023
DownloadTable of Contents
- Scope and Roles of the Parties. The parties acknowledge and agree that with regard to the Processing of Personal Data, Licensee is the Controller, CBI is the Processor and that CBI will engage Sub-processors pursuant to the requirements set forth in Section 4 (“Sub-processors”) below.
- Licensee's Processing of Personal Data. Licensee shall, in its use of the Services, Process Personal Data in accordance with the requirements of Data Protection Laws and Regulations, including any applicable requirement to provide notice to Data Subjects of the use of CBI as Processor. For the avoidance of doubt, Licensee's instructions for the Processing of Personal Data shall comply with Data Protection Laws and Regulations. Licensee shall have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Licensee acquired Personal Data. Licensee specifically acknowledges that its use of the Services will not violate the rights of any Data Subject that has opted-out from sales or other disclosures of Personal Data, to the extent applicable under the CCPA.
- CBI's Processing of Personal Data. CBI shall treat Personal Data as Confidential Information and shall Process Personal Data on behalf of and only in accordance with Licensee's documented instructions for the following purposes: (i) Processing in accordance with the Agreement and applicable Order Form(s); (ii) Processing initiated by Users in their use of the Services; and (iii) Processing to comply with other documented reasonable instructions provided by Licensee (e.g., via email) where such instructions are consistent with the terms of the Agreement. Additionally, CBI shall:
- only act on the written instructions of Licensee (unless required by law to act without such instructions);
- ensure that people processing the Personal Data are subject to a duty of confidence;
- take appropriate technical and organizational measures to ensure that the security of Processing is appropriate to the risk, taking account of the state of the art, the costs of implementation, and the nature, scope, context and purpose of the Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons;
- assist Licensee in meeting its GDPR obligations in relation to the security of Processing, the notification of Licensee Data Incidents (as defined herein), prior consultation with the relevant GDPR supervisory authority, and data protection impact assessments; and
- submit to reasonable audits; provide Licensee with reasonable information it needs to ensure that both parties are meeting obligations under the GDPR; and inform Licensee immediately if asked to act in any way infringing the GDPR or other Data Protection Laws and Regulations
- Details of the Processing.
- Subject Matter: User access of the Services.
- Duration: the duration of the Agreement.
- Purpose: provision of the Services, initiated by Users.
- Nature of the Processing: Personal Data to be processed at User login and sent to CBI’s authentication server (Amazon Web Services servers), which Personal Data is used to find the encrypted password and match with User’s entered credentials. Personal Data and non-identifying ID stored on the server for the duration of the login session.
- Type of Personal Data: Email addresses (including name) and IP addresses at User login.
- Categories of Data Subjects: Users, which are limited to Licensee’s and its Affiliates’ employees or agents, who have an email address with Licensee or its Affiliates and have access to the Services under an Order Form.
- Contractual Relationship. The parties acknowledge and agree that, by executing this DPA, Licensee enters into the DPA on behalf of itself and, as applicable, in the name and on behalf of its Authorized Affiliates, thereby establishing a separate DPA between CBI and each such Authorized Affiliate subject to the provisions of the Agreement and this Section 8 and Section 9. Each Authorized Affiliate agrees to be bound by the obligations under this DPA and, to the extent applicable, the Agreement. For the avoidance of doubt, an Authorized Affiliate is not and does not become a party to the Agreement and is only a party to the DPA. All access to and use of the Services by Authorized Affiliates must comply with the terms and conditions of the Agreement and any violation of the terms and conditions of the Agreement by an Authorized Affiliate shall be deemed a violation by Licensee.
- Communication. The Licensee that is the contracting party to the Agreement shall remain responsible for coordinating all communication with CBI under this DPA and be entitled to make and receive any communication in relation to this DPA on behalf of its Authorized Affiliates.
- Rights of Authorized Affiliates. Where an Authorized Affiliate becomes a party to the DPA with CBI, it shall to the extent required under applicable Data Protection Laws and Regulations be entitled to exercise the rights and seek remedies under this DPA, subject to the following:
- Except where applicable Data Protection Laws and Regulations require the Authorized Affiliate to exercise a right or seek any remedy under this DPA against CBI directly by itself, the parties agree that (i) solely the Licensee that is the contracting party to the Agreement shall exercise any such right or seek any such remedy on behalf of the Authorized Affiliate, and (ii) the Licensee that is the contracting party to the Agreement shall exercise any such rights under this DPA not separately for each Authorized Affiliate individually but in a combined manner for itself and all of its Authorized Affiliates together (as set forth, for example, in Section 8.3.2, below).
- The parties agree that the Licensee that is the contracting party to the Agreement shall, when carrying out an on• site audit of the procedures relevant to the protection of Personal Data, take all reasonable measures to limit any impact on CBI and its Sub-Processors by combining, to the extent reasonably possible, several audit requests carried out on behalf of itself and all of its Authorized Affiliates in one single audit.
- DEFINITIONS
- 'personal data ', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
- 'the data exporter' means the controller who transfers the personal data;
- 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country ' s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
- 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
- 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established ;
- 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
- The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to U), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
- The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
- The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data expo1ier and the importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
- The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
- that the process i ng, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
- that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
- that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
- that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
- that it will ensure compliance with the security measures;
- that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
- to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
- to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures , as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
- that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
- that it will ensure compliance with Clause 4(a) to (i).
- to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses ; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- that it has implemented the tec