THIS VEHICLEPLANNERPLUS PRODUCT LICENSE AGREEMENT, including the Cover Page above, the Terms and Conditions below and the Exhibits attached hereto (collectively, this “Agreement”), is entered into as of the Effective Date set forth above, between SBD North America LLC, a Michigan limited liability company (“SBD”), and the client entity described above (“Client”).
Terms & Conditions
Effective date: 22 January 2019
On the terms and subject to the conditions set forth in this Agreement, SBD hereby grants to Client a non exclusive, non-transferable, limited right and license to use, reproduce, display and/or otherwise exploit, internally within Client’s organization in the United States during the Term (as defined in section 4 below), the Licensed Product specified in Exhibit A hereto, solely as necessary for Client to efficiently and effectively engage in the “Permitted Use” specified in Exhibit B hereto, and for no other use. The Licensed Product shall be delivered by SBD to Client as described herein. Except for the foregoing limited license right, all right, title and interest in and to the Licensed Product, including, without limitation, all intellectual property rights therein, shall be and remain owned exclusively by SBD and its third party data providers. This Agreement shall not prevent SBD from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to the Licensed Product.
2. Limitations on Use by Client and Client Obligations
Except as expressly permitted by this Agreement or otherwise agreed in writing by SBD or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties, Client shall not (a) copy, modify, reproduce, publish, display, transmit, frame, mirror, create derivative works from, distribute or make accessible the Licensed Product (or any portion thereof) in any form or media or by any means to any person, including without limitation to any affiliate of Client; (b) grant any sublicense or sub-authorization, assign in whole or in part or otherwise grant or purport to grant to any person any right to obtain, use, exploit, copy, publish or distribute the Licensed Product (or any portion thereof); (c) use or exploit the Licensed Product (or any portion thereof) for any use or purpose other than the Permitted Use, including, without limitation, in any manner that condones any activities in violation of law, or display the Licensed Product (or any portion thereof) in any website or other media that contains profane, obscene or pornographic content or content that denigrates a particular group based on gender, race, religion, sexual preference, handicap or other characteristic; (d) copy or obtain any SBD-provided code, design, data, editorial content or photographs (whether or not included in the Licensed Product) directly from SBD, or from any website or media that is a licensee of SBD; or (e) use the Licensed Product to provide services to any person. Further, Client shall not disassemble, translate, reverse engineer or otherwise decompile the Licensed Product or any portion thereof. Client shall use all reasonable endeavours to prevent any unauthorized access to, or use of, the Licensed Product and, in the event of any such unauthorized access or use, promptly notify SBD. The rights granted to Client under this Agreement are granted to the Client only and shall not be considered granted to any subsidiary or holding company of Client. Client shall: (a) provide SBD with all necessary co-operation in relation to this Agreement; (b) carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner; (c) ensure that its network and systems comply with the relevant specifications notified to Client and agreed between the parties from time to time; and (d) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the SBD’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Client's network connections or telecommunications links or caused by the internet.
In consideration for the license granted by SBD to Client hereunder and any other services provided by SBD to Client hereunder, Client shall pay to SBD the non refundable License Fees in the amount set forth in Exhibit B hereto. The License Fees shall be payable (and paid) by Client in accordance with the following payment schedule 50% of the annual License Fee on or before the date of this Agreement or on each anniversary of the date of this Agreement (as the case may be); 20% of the annual License Fee on or before 14 January during each year of the Term; 20% of the annual License Fee on or before 13 March during each year of the Term; and 10% of the annual License Fee on or before 15 May during each year of the Term. If SBD has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of SBD: (a) SBD may, without liability to Client, disable Client's password, account and access to all or part of the Licensed Product and SBD shall be under no obligation to provide the Licensed Product or any part of the Licensed Product while the invoice(s) concerned remain unpaid; and (b)interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of SBD’s bankers in the US from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment. All amounts shall be payable in US dollars and are exclusive of value added tax or any similar sales taxes, which shall be added to SBD’s invoice(s) at the appropriate rate.
4. Term; Renewal; Termination
The term of this Agreement (the “Term”) shall consist of (a) the initial term, which shall commence on the Effective Date and shall continue through the initial term specified on the Cover Page (the “Initial Term”), and (b) such additional twelve (12) month (unless otherwise stated above) terms as may be determined in accordance with the following sentence (each a “Renewal Term”). This Agreement shall automatically renew for a first Renewal Term and subsequent Renewal Terms unless either party notifies the other party in writing of its intent not to renew this Agreement at least sixty (60) days prior to the expiration of the Initial Term or any Renewal Term, as applicable, in which event this Agreement shall terminate as of the last day of the Initial Term or Renewal Term. Unless SBD otherwise notifies Client in writing, for each Renewal Term the annual License Fees will automatically increase by 3% over the License Fees for the twelve (12) month period immediately preceding such Renewal Term, save that should any discount apply during the Initial Term then the License Fees for the next Renewal Term shall be the amount 3% over the undiscounted License Fee for the Initial Term. Either party may terminate this Agreement immediately upon written notice if: (a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default for not less than twenty (20) days after being notified in writing to make such payment; (b) the other party is in material breach of any term or condition of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof; (c) the other party suspends, or threatens to suspend, payment of its debts as they fall due or admits liability to pay its debts or is deemed unable to pay its debts; (d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; (e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; (f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party; or (g) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in section 4(a) to section 4(f) (inclusive). Upon any termination or expiration of this Agreement: (a) all licenses granted under this Agreement shall immediately terminate and Client shall immediately cease to use the Licensed Product; and (b) Client shall immediately remove from its servers, systems and electronic files and destroy all copies of the Licensed Product (and all portions thereof, including any data exported from the Licensed Product). Upon SBD’s request, Client shall certify in writing its and such third parties’ removal and destruction of the Licensed Product in accordance with the preceding sentence. In addition, upon any termination of this Agreement by SBD as a result of Client’s material breach hereof (including, without limitation, as a result of Client’s failure to pay when due all or any portion of the License Fees or any other amount owed to SBD hereunder) or by Client for any reason other than as a result of SBD’s material breach hereof, then in addition to and not in limitation of any other rights or remedies that may be available to SBD in connection therewith, Client shall be liable to pay to SBD, and shall immediately pay to SBD upon receipt of an invoice therefor, (i) the unpaid portion of any License Fees and other amounts that have accrued hereunder and are then unpaid and (ii) the portion of the License Fees and such other amounts as would have otherwise been payable to SBD hereunder from the date of such termination through the remaining Term of this Agreement.
During the Term and thereafter, neither party will disclose to any third party or use any Confidential Information of the other party, except (a) to each party’s respective agents and employees who have a need to know, (b) to the extent necessary (redacted to the greatest extent possible) to comply with law, (c) in order to enforce or exercise its rights under this Agreement, or (d) as mutually agreed by the parties in writing. For purposes of this Agreement, “Confidential Information” shall mean any information disclosed by one party to the other, including the terms of this Agreement and information generated by the parties in the course of performance of this Agreement, but shall not include (i) information in the public domain, or (ii) except for the terms of this Agreement and information generated by the parties in the course of performance of this Agreement, information already legitimately known to the other party at the time of disclosure. For the avoidance of doubt, the parties acknowledge and agree that the Licensed Product and all associated software, data and materials are and shall remain the Confidential Information of SBD. As between Client and SBD, Confidential Information of SBD shall be deemed to include the data and confidential information furnished by SBD’s third party data providers. Client shall procure that all third parties with which it shares Confidential Information of CBD comply with this section 5.
6. Intellectual Property
Client acknowledges and agrees that (a) SBD and/or its third party data providers is/are the sole and exclusive owner(s) of the intellectual property rights in the Licensed Product (and all portions thereof), (b) SBD and/or its third party data providers has/have expended significant resources gathering, assembling, compiling, developing and designing the Licensed Product (and all portions thereof), which constitutes valuable property of SBD and/or its third party data providers; and (c) the data that is deliverable through the Licensed Product is an original compilation protected by copyright law and contains and comprises trade secrets of SBD and/or its third party data providers. Client shall not directly or indirectly impair, dispute or contest the ownership, validity or enforceability of SBD’s and/or its third party data providers’ intellectual property rights in the Licensed Product (or any portion thereof). Except as expressly stated herein, this Agreement does not grant Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licenses in respect of the Licensed Product.
7. Right of Audit & Monitoring.
Client shall keep accurate and complete records regarding Client’s use of the Licensed Product, including any data extracted from the Licensed Product. Upon thirty (30) days’ prior written notice, SBD shall have the right during the Term and for two (2) years thereafter, but no more often than semi-annually, to cause an independent third party to inspect, audit and copy such records solely to verify Client’s compliance with the terms of this Agreement. All costs and expenses of such audit shall be paid by SBD, unless the audit reveals a material violation of the terms of this Agreement (which, for the avoidance of doubt, includes any violation of the license granted by SBD to Client hereunder), in which case Client shall promptly reimburse SBD for all reasonable costs and expenses related to the audit. SBD reserves the right to use advanced analytical infrastructures built into the Licensed Product to monitor Client usage of the tool to improve performance and reliability. This insight may also be used by SBD to derive client usage to understand feature and data popularity and usage. This usage data will not be shared with third parties other than SBD’s third party data providers without Client’s written permission, which will only be requested in order to improve the Licensed Product and will be redacted to the fullest extent possible in any case.
8. Representations and Warranties.
Each party represents and warrants to the other party that (a) such party has the full right, power and authority to enter into this Agreement, to grant the rights granted hereunder and to perform the acts required of it hereunder, and (b) this Agreement constitutes the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms. Each party shall comply with all applicable treaties, agreements, statutes, rules, or ordinances for those foreign, federal, state, or local governmental entities with jurisdiction, as all may be newly enacted or amended from time to time (“Laws”). The parties’ obligation to comply with all Laws includes the procurement of permits, certificates, approvals, inspections and licenses, when needed, in the performance of this Agreement. Further, SBD represents and warrants to Client that, subject to the limitations contained herein, (i) SBD has all necessary rights in the Licensed Product to perform this Agreement in accordance with its terms, and (ii) SBD has used commercially reasonable efforts to obtain accurate and complete information from reliable sources in the course of the compilation of the Licensed Product.
Client acknowledges that (a) any collection and compilation of information of the kind included in the Licensed Product entails the likelihood of some human and machine errors, omissions, delays, interruption and losses, and (b) the sole responsibility of SBD under this Agreement is to provide the Licensed Product to Client in accordance with the terms hereof, and neither SBD nor any of its third party data providers shall be responsible for any use or implementation by Client of the Licensed Product. ACCORDINGLY, AND NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, CLIENT ACKNOWLEDGES AND AGREES THAT (i) THE LICENSED PRODUCT (AND ALL PORTIONS THEREOF) IS PROVIDED “AS IS”; (iii) SBD IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM THE TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET; (iv) NEITHER SBD NOR ANY OF ITS THIRD PARTY DATA PROVIDERS MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE ACCURACY, COMPLETENESS OR CURRENCY OF THE LICENSED PRODUCT (OR ANY PORTIONS THEREOF); AND (v) EXCEPT AS MAY OTHERWISE BE EXPRESSLY SET FORTH IN THIS AGREEMENT, SBD AND ITS THIRD PARTY DATA PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, REPRESENTATIONS AND GUARANTEES, WHETHER EXPRESS OR IMPLIED AND WHETHER ARISING BY LAW, CUSTOM, ORAL OR WRITTEN STATEMENTS OF SBD OR ITS THIRD PARTY DATA PROVIDERS OR THEIR AGENTS, EMPLOYEES OR OTHER REPRESENTATIVES (INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT). CLIENT ASSUMES SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM THE USE OF THE LICENSED PRODUCT AND FOR CONCLUSIONS DRAWN FROM THE USE. SBD RESERVES THE RIGHT (ON GIVING CLIENT PRIOR WRITTEN NOTICE AND ON AGREEMENT BETWEEN THE PARTIES) TO AMEND OR VARY THE LICENSED DATA IF NECESSARY DUE TO THE EXPIRY OR TERMINATION OF ANY AGREEMENT WITH ITS THIRD PARTNER DATA PROVIDERS.
10. Limitation of Liability.
EXCEPT FOR LIABILITY IN RESPECT OF (i) A PARTY’S BREACH OF SECTION 2 OR SECTION 5 ABOVE, (ii) THE PARTIES’ RESPECTIVE INDEMNITY OBLIGATIONS UNDER SECTION 11 BELOW OR (iii) A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY, OR ITS RESPECTIVE EMPLOYEES, REPRESENTATIVES OR AFFILIATES (INCLUDING, IN THE CASE OF SBD, SBD’S THIRD PARTY DATA PROVIDERS), BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, INCIDENTAL OR SPECIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES WHETHER FORESEEABLE OR UNFORESEEABLE (AND WHETHER OR NOT SUCH PARTY OR ANYONE ELSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED UPON LOST GOODWILL, LOST PROFITS, LOSS OF BUSINESS, LOSS OR CORRUPTION OF DATA OR INTERRUPTION IN ITS USE OR AVAILABILITY (HOWEVER CAUSED), STOPPAGE OF WORK, IMPAIRMENT OF ASSETS OR OTHERWISE, AND WHETHER ARISING OUT OF BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY IN TORT OR OTHERWISE, AND WHETHER BASED ON ANY PROVISION OF THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES RELATING TO THE LICENSE OR ANY TRANSACTION PERFORMED OR UNDERTAKEN UNDER OR IN CONNECTION WITH THIS AGREEMENT. FURTHER, IN NO EVENT SHALL SBD’S (OR ANY THIRD PARTY DATA PROVIDER OF SBD’S) TOTAL LIABILITY FOR A CLAIM OF ANY KIND, REGARDLESS OF THE FORM IN WHICH ANY ACTION MAY BE BROUGHT, EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO SBD UNDER THIS AGREEMENT DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE CLAIM.
Each party (the “Indemnifying Party”) shall defend, indemnify and hold harmless the other party and its respective officers, directors, employees and agents (collectively, the “Indemnified Parties”) from and against any claim, demand, action or suit asserted by a third party, and all costs, liabilities, judgments, expenses and damages (including reasonable attorneys’ fees) (collectively, “Losses”) incurred by an Indemnified Party in connection with any such third party claim, arising out of, resulting from or related to (a) the Indemnifying Party’s breach of any of its representations or warranties in section 8, or (b) allegations that the Indemnifying Party’s business, products and/or services infringe any US patent, trademark, copyright or any other proprietary right of a third party or violate any law. In no event shall SBD be liable to Client to the extent that the alleged infringement is based on (i) a modification of the Licensed Product any anyone other than SBD and/or (ii) Client’s use of the Licensed Product in a manner contrary to the instructions given to Client by SBD. In addition, Client (as the Indemnifying Party) shall indemnify and hold harmless SBD (as the Indemnified Party) from and against any and all Losses incurred by SBD arising out of, resulting from or related to Client's use or distribution of the Licensed Product in violation of (i) any applicable laws and/or (ii) the license granted by SBD to Client hereunder.
12. Press, Partners Page, and Attribution.
Following the execution and delivery of this Agreement by both parties, SBD may issue a press release, the content of which shall describe the business relationship with Client. Such press release shall be approved or rejected by Client within five (5) business days following receipt of SBD’s draft (absent timely rejection by Client, the SBD draft shall be deemed approved). Thereafter, neither party shall issue a press release regarding the business relationship without consent of both parties which shall not be unreasonably withheld. Partner Page: Client may (i) list SBD on a “Partner Page” (or other location otherwise mutually agreeable to the parties) included on the Client Site (as defined in Exhibit B, “Permitted Use, License Fees”) and (ii) display on such Partner Page certain specified SBD logos, website links and text in substantially the form set forth in Exhibit C: “Legal Copyright”. Customer List: SBD, may at its sole discretion, identify Client as a customer of SBD within its web site and within various promotional content using a Client approved logo.
This Agreement shall be governed by, and interpreted and construed in accordance with, the laws of the State of Michigan, without giving effect to the conflict of law rules of such state. Any disputes arising under or relating to this Agreement shall be brought exclusively in, and the parties hereby consent to the exclusive jurisdiction of, any state or federal court located in Ann Arbor, Michigan. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR ANY ACTS OR OMISSIONS OF ANY OF THE PARTIES HERETO IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY. Without limiting any other remedy available to SBD, Client hereby agrees that Client's breach of Section 2 or Section 5 above would subject SBD to irreparable harm for which there would be no adequate remedy at law, and, therefore, SBD shall be entitled to equitable relief, including injunctive relief and specific performance, without any requirement to post any bond or security or prove the inadequacy of any monetary remedy at law. In the event of any litigation arising under or relating to this Agreement, the prevailing party as determined by a court of competent jurisdiction in a final, non-appealable order shall be entitled to recover from the non-prevailing party its reasonable out-of-pocket expenses, attorneys’ fees and costs incurred therein or in the enforcement or collection of any judgment or award rendered therein. No changes, amendments or modifications to this Agreement shall be binding unless set forth in a writing duly executed by the parties. The provisions of Sections 2, 3, 5, 6 and 9 through 11 of this Agreement shall survive any expiration or termination of this Agreement. Neither party will be liable to the other party for any default or delay in the performance of any of its obligations hereunder (other than its obligation to pay any monies owed to the other party or any third party) if the default or delay is caused by circumstances or conditions that are beyond such party’s reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of SBD or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of SBD’s third party data providers. If any provision of this Agreement is held invalid or unenforceable for any reason, such provision shall be deemed to apply only to the minimum extent permitted by law, and the remainder of this Agreement shall remain valid and enforceable in accordance with its terms. Except as expressly set forth herein, this Agreement is not intended to benefit any third party, and the parties do not intend to create any third-party beneficiary rights under this Agreement. No failure or delay on the part of any party hereto to exercise any right, power or remedy shall operate as a waiver thereof. Client may not assign this Agreement without the prior written consent of SBD. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof. If there is an inconsistency between any of the provisions in the main body of this Agreement and the Exhibits, the provisions in the main body of this Agreement shall prevail. This Agreement may be executed in counterparts (including by facsimile or other electronic transmission), each of which shall be deemed to be an original, but both of which, taken together, shall constitute one and the same instrument.