In this Agreement:
“Agreement” means this Software as a Service Trial Agreement “Company” means AYLIEN Limited a Private Limited Company incorporated in Ireland, registration number 519734;
"Content" means any content comprised in the Data Feed from the public web or Company's third party data providers including online news content, articles, press releases, blog posts, social media posts and hyperlinks to content;
“User” means the legal entity contracting with Company to trial the Services;
"Data Feed" means any content made available by the Company via the Service's application programming interface (NewsAPI) and/or via the Service’s RADAR product (RADAR), including Content and any Intellectual Property Rights in that content;
"Intellectual Property Rights" means:
(a) patents, utility models and rights in inventions;
(b) rights in each of: know-how, confidential information and trade secrets;
(c) trade marks, service marks, rights in logos, trade names, rights in each of get-up and trade dress, rights to sue for passing off (including trade mark-related goodwill), rights to sue for unfair competition, and domain names;
(d) copyright, moral rights, database rights, rights in designs, and semiconductor topography rights;
(e) any other intellectual property rights; and
(f) all rights or forms of protection, subsisting now or in the future, having equivalent or similar effect to the rights referred to in paragraphs (a) to (e) above,
in each case: (i) anywhere in the world; (ii) whether unregistered or registered (including, for any of them, all applications, rights to apply and rights to claim priority) and (iii) including, in respect of any of them, all divisionals, continuations, continuations-in-part, reissues, extensions, re-examinations and renewals.
“Seat” means a single individual using RADAR on a desktop and/or laptop computer, for a total of no more than two computers per individual. Individuals are expressly forbidden from sharing their computer(s) with another individual for the purpose of accessing RADAR.
“Services” means Company’s proprietary NewsAPI and RADAR products as detailed further in the Order Form, and as may be developed by Company from time to time.
“Trial Term” means the period during which User is authorised to trial the Services as set forth in clause 2
2.1. Provision of Services. Company agrees to make the Services available to User during the Trial Term subject to terms and conditions of this Agreement.
2.2. Scope of Use. User’s access to and use of the Services is limited to User’s affiliates, employees,and contractors authorised by Company.
3. USE OF CONTENT
3.1.User acknowledges that:
(a) the Services are tools that identify, analyse, collate and enrich Content which is available to User on the web;
(b) Company does not review, monitor or moderate the Content;
(c) Company does not represent that it owns Intellectual Property Rights in the Content, and nothing in this Agreement should be construed as Company granting any licence, or transferring any rights to User in respect of the Content; and
(d) Company may immediately remove from the Data Feed, or otherwise suspend access to, any Content if a third party alleges that use of the Content in connection with the Services infringes the Intellectual Property Rights of any third party.
3.2. Any other form of external use or distribution of Content shall be at Customer's own risk.
3.3. If notified by Company of a third party complaint under clause 3.2, Company may contact User and provide a description of the allegedly infringing Content that is sufficient to enable User to effectively identify it. Upon receipt of such notice, User shall, without delay, cease all access to and use of the relevant Content and (except for copies necessarily retained to satisfy audit, compliance or regulatory requirements) must delete all copies of same from any systems under its control and shall confirm in writing to Company that such actions have been taken.
3.4. Company may disable User's access to the Data Feed where Company reasonably believes that the User is in breach of any of its obligations under this clause.
3.5. Company may include information in the Data Feed to assist User in identifying content as Content.
4. USER'S GENERAL OBLIGATIONS
4.1. User agrees to use the Services in strict compliance with this Agreement and applicable laws and regulations. User is responsible and liable for its use of the Services, for the manner of use and results obtained therefrom. User must adhere to and will be liable for any failure to comply with applicable laws and regulations.
4.2. User must not (i) sell, share, resell, rent, lease or sub-license or onward license, or use the Services or any reports from the Services in a service provider capacity or for the benefit of any third party; (ii) interfere with or disrupt the integrity or performance of the Services; (iii) attempt to circumvent any technical restrictions to the Services or to modify or seek to gain unauthorized access to the Services or its related systems or networks; or (iv) reverse engineer, decompile, disassemble or access the Services to create adaptive or derivative works, or copy any feature, function or graphic for competitive purposes. User shall ensure that it does not permit access to or use of the Services except as is authorized under this Agreement, and User shall not disclose or facilitate any third party access to or use of the Services.
4.3. User acknowledges that certain content in the Data Feed received may be subject to limits of use or retention. User agrees to comply fully and promptly with any notice issued by Company from time to time directing that such content must only be used in a particular manner or removed from systems under User’s control. Company’s notice will include a description of the relevant content to facilitate User in pinpointing the content. User will promptly confirm to Company that it has taken the required action, and if unable to do so then User may ask Company to remove that part of the content from the Services.
5. RESERVATION OF RIGHTS
5.1. Company alone (and its licensors and vendors, where applicable) shall own any Intellectual Property Rights (other than Intellectual Property Rights in the Content) in the Services (including any created or arising from Company’s performance of this Agreement), and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by User or any other party relating to the Services. Company and its licensors reserve all rights not expressly granted to User.
5.2. Company may collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning User’s usage of the Services and data derived therefrom, and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
6.1. "Confidential Information" means trade secrets, know-how and any business, technical or other information disclosed by either party (disclosing party) to the other party (receiving party) in the course of this Agreement that is designated confidential or that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. In addition to the foregoing, User agrees that the details of the Services, the terms and conditions of this Agreement, pricing and other terms reflected in Order Forms, and the results of any quality, benchmark or performance tests of the Services, constitute Confidential Information of the Company.
6.2. Receiving party agrees to maintain the confidentiality of Confidential Information with at least the same degree of care as it uses to protect its own confidential information, but no less than a reasonable degree of care. Receiving party must not at any time disclose Confidential Information to any third party except with the express written consent of the disclosing party.
6.3. Receiving party shall limit access to and use of such Confidential Information to those of its employees or consultants who need to see it for the purposes of this Agreement. Receiving party shall ensure that each such person is aware of the confidential nature of the Confidential Information and of receiving party’s obligations with respect to the Confidential Information, and that all such persons are bound not to disclose or use any such Confidential Information other than as permitted by this Agreement.
6.4. On expiry or termination of this Agreement, or otherwise on the disclosing party’s request made at any time, receiving party shall delete all electronically stored data and deliver up to disclosing party (or, at disclosing party's option, destroy and certify destruction of) all material in its possession or control that bear or incorporate any or disclosure of Confidential Information.
6.5. The terms of clause 6.2, 6.3 and 6.4 shall not apply to information that is:
(a) publicly known through no act or default of the receiving party;
(b) known to the receiving party without any obligation of confidentiality prior to its disclosure by disclosing party;
(c) acquired by receiving party from a source independent of disclosing party and without breach of an obligation of confidentiality; or
(d) independently developed by personnel of receiving party without any access, direct or indirect, to any of such Confidential Information.
6.6 This Agreement shall not prevent either party from disclosing information where required by law to the extent so required, provided that receiving party must give disclosing party prompt written notice of such requirement where possible prior to such disclosure (or otherwise as soon as possible thereafter) and must provide disclosing party with reasonable assistance to obtain an order to protect the information from public disclosure.
7. TERM AND TERMINATION
7.1. Subject to the provisions of clauses 8.2 and 8.3, the term of this Agreement is for the initial Trial Term and any additional Trial Term agreed between Company and Customer. User must immediately cease use of the Services on on expiry of the Trial Term, or as otherwise agreed with Company;Termination or expiration of this Agreement shall not affect any rights or licences under this Agreement that are intended to come into effect on or after termination or expiration nor shall termination or expiration affect those obligations and limitations which of their nature and meaning survive. Provisions of this Agreement which survive termination include, without limitation, accrued rights to payment, confidentiality obligations, law and jurisdiction, disclaimers and limitations of liability.
8. WARRANTY AND DISCLAIMER
8.1. Maintenance and Service Interruption. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, and Company will use reasonable efforts to inform User electronically in advance of any scheduled service disruption. The Services may depend on Company’s access to third party websites and use of third party services. The Services are also subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. Company is not responsible for any delay, delivery failure, or other damage resulting from such matters, or for any delay, inaccuracy or other fault in the Services arising from events or causes outside the reasonable control of Company.
8.2. Disclaimer. Except as provided in clause 9.1, the Services are provided “as is” and Company makes no warranties with respect to them, and no representations or warranties will apply, whether written, oral, implied or statutory, including any warranty of merchantability, fitness for a particular purpose or non-infringement. Company does not warrant that the Services will meet User’s requirements, or that the Services will be uninterrupted, timely or error-free. Company does not make any warranty as to the results that may be obtained from the use of the Services or as to the accuracy or reliability of any information obtained through the Services.
9. LIMITATION OF LIABILITY
9.1. To the maximum extent permitted by law, and subject to clause 11.2:
(a) Company’s aggregate liability under or in connection with this Agreement shall not in any Trial Term exceed the Fees (if any) paid by User for the Services in that Trial Term, irrespective of the basis of claim, whether in contract, indemnity or tort (including negligence) or otherwise; and
(b) Company shall not be liable under or in connection with this Agreement for any indirect, special, incidental, or consequential loss or damages, or for any loss of profit or anticipated saving, or for any loss of contracts, loss of revenue, delay, loss or corruption of data, or loss of goodwill, irrespective of the basis of claim and whether in contract, indemnity or tort (including negligence) or otherwise.
9.2. The limitation and exclusions in clause 11.1 shall not apply to:
(a) liability for death or personal injury arising from negligence or wilful misconduct, liability for breach of confidentiality or fraud, or to liability that cannot by law be limited or excluded; and
(b) any claims by the Company under clause 3.5.
10. GOVERNING LAW AND JURISDICTION
10.1. This Agreement and any dispute arising out of or in connection with it (including non-contractual claims) will be governed by the laws of Ireland.
10.2. Senior management from each party will attempt without prejudice to resolve in good faith any dispute arising out of or relating to this Agreement. Either party may deliver notice of the dispute to the other party, such notice to include a detailed description of the dispute, together with relevant supporting documents. If the parties do not resolve the dispute within thirty calendar days of the notice, either party may initiate litigation.
10.3. The parties irrevocably agree and accept (subject to clause 12.4) that the courts of Ireland will have exclusive jurisdiction over any dispute arising out of or in connection with this Agreement, its subject matter or formation (including non-contractual claims), and the parties both consent to personal jurisdiction and venue in those courts.
10.4. The dispute resolution process in clause 11.2 will not apply to claims for misappropriation of trade secrets or breach of confidentiality obligations if the requested relief includes injunctive or other non-monetary relief. Notwithstanding clause 11.3, claims for misappropriation of trade secrets and breach of confidentiality obligations may also be brought in any court that has jurisdiction over the parties if the relief sought includes injunctive or other non-monetary relief.
11.1. Entire Agreement. This Agreement constitutes the complete agreement and understanding between the parties concerning the subject matter hereof, and supersedes all prior and contemporaneous proposals, agreements, understandings, negotiations, representations, warranties, conditions, and communications, oral or written, between the parties relating to the subject matter of this Agreement. Purchase orders, invoices and the like are issued for administrative convenience only and shall have no legal effect except to the extent expressly provided herein.
11.2. Severability. Every provision in this Agreement shall be deemed to be separate and severable and enforceable accordingly. Any determination that any provision of this Agreement is invalid or unenforceable shall not affect any other provision of this Agreement and all such other provisions shall remain in full force and effect. The parties hereby agree to make good faith efforts to substitute for any such invalid or unenforceable provision a valid or enforceable provision that achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.
11.3. Amendment. No amendment to or variation of this Agreement shall be binding on either party unless in writing, stated to be an amendment to this Agreement and signed by an authorized signatory of each party. Nothing in any Order Form shall be effective to amend or vary the general terms and conditions of this Agreement except to the extent expressly provided in the Order Form and only for the specific order itself.
11.4. Waiver. A party’s failure or delay in enforcing any provision of this Agreement will not operate as a waiver of the right to enforce that provision or any other provision of this Agreement at any time. No waiver of any right, remedy or obligation under this Agreement will be valid unless in writing, specifying the terms to be waived, and signed by the party agreeing to the waiver.
11.5. Notices. All notices and consents required or permitted to be given under this Agreement must be in writing, and are deemed received on the date of personal delivery, within one day of email or other electronic transmission or within five days of sending by post to the other party’s address as set forth in this Agreement or such other address as shall have been notified by such other party. Notices transmitted by email shall not be valid unless expressly permitted under this Agreement or acknowledged as a notice by recipient, and such notices shall be deemed received within one day of transmission.
11.6. Independent Contractors. The nature of the relationship between the parties in this Agreement is that of independent contractors. This Agreement does not create any partnership, joint venture, agency, employment or analogous relationship.
11.7. Assignment. User must not assign, sublicense or transfer this Agreement or any rights or obligations hereunder without Company’s prior written consent. Company may transfer this Agreement and its rights and obligations to any associate company, subsidiary, holding company or to any successor to its business or relevant part of that business (provided that transfers of obligations are conditional on transferee express assumption of such obligations towards User).
This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when executed and delivered shall constitute an original, all such counterparts together constituting one and the same instrument.