This XLSCOUT Master Agreement (this “Agreement”) is made by and between XLSCOUT XLPAT INC (USA), on behalf of itself and its Affiliates, an entity incorporated in the United States of America having offices at 1000 N, West Street Suite 1200, Wilmington, Delaware, 19801 (hereafter “XLSCOUT”), and XLSCOUT’s customer (“Customer”). These General XLSCOUT Services Terms and Conditions (“Agreement”) govern your acquisition and use of XLSCOUT Products and Services. By agreeing to the terms and conditions, you (hereafter “Customer” or “you”) agree to the terms of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you must not sign up and may not use any XLSCOUT Products and Services. This Agreement is effective as of the Effective Date.
Customer and XLSCOUT hereby agree as follows:
“Affiliate” means in relation to any party, an entity that is controlled by, controlling, or under common control with that party;
“Agent” OR “Third Party Supplier” means a third-party supplier of content, software, or technology;
“Agreement” means the agreement created between the Parties incorporating these Terms and Conditions and the cover sheet entered into by the parties;
“Automated Invalidity” means automated first pass Invalidation search obtained by running the proprietary algorithm on the database on an As is Where is basis and shall in no manner be a comprehensive or a full search.
“Automated Patentability search” means automated first pass Patentability search obtained by running the proprietary algorithm on the database on an As is Where is basis and shall in no manner be a comprehensive or a full search.
“Confidential Information” means (i) all information of a confidential nature concerning the trade secrets or business dealings, pricing, plans, procedures, products, services or strategies of a party, its affiliates and third parties to whom that party owes a duty of confidence; (ii) any document or information designated as confidential; and (iii) any information which by its nature the recipient ought reasonably to conclude is confidential information, in all cases whether encrypted or not and including all copies of the above on any media. Without limitation, the Licensed Materials and Login Details are confidential to XLSCOUT, its Affiliates and/or Third Party Suppliers
“Contract Year” means each twelve (12) month period from the commencement of the license for the Product, which shall be the date of the Cover Sheet unless otherwise set out on the Cover Sheet;
“Control” and its derivatives means the ultimate power to determine the direction of the management policies of the entity concerned, either directly or indirectly and whether through the ownership of voting securities, by contract or otherwise;
“Cover Sheet” means the Pricing and Scope of Contract as Annexure 1 attached hereto signed by XLSCOUT and Customer;
“Delivery Method” means the delivery media and/or method through which Customer will get and XLSCOUT will deliver the Product, as set out on the Cover Sheet;
“Documentation” means the user manuals and other documentation and technical information XLSCOUT makes generally available in relation to the Product, whether in electronic form or otherwise.
“End User” means an authorized end user of the Licensed Materials within the scope of the License Level;
“Fees” means the fees payable by Customer as set out in Annexure 1;
“Initial Term” means the Initial term for the provision of a Service as set out on the Cover Sheet, which shall start on the date this Agreement is signed by both Parties;
“Intellectual Property Rights” means all patents, copyrights, design rights, database rights, trademarks, service marks, trade secrets, rights in know-how and Confidential Information, moral rights, and any other intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world;
“Licensed Material” means any Product and/or Content (as defined in the Content Services Schedule, if applicable) licensed under this Agreement;
“License Level” means the level of license purchased by the Customer in relation to a Product as set out and more particularly described on the Cover Sheet;
“Login Details” means the unique user name and password used by End Users to access a Product and/or Customer’s IP address (as notified by the Customer in writing from time to time) required by XLSCOUT to validate access and other details (technical or otherwise) concerning access to the Products and its login process;
“Party” means a party to this Agreement;
“Renewal Term” means the fixed renewal term for the provision of any Service beyond the Initial Term, which shall be twelve (12) months unless otherwise set out on the Cover Sheet for that Service;
“Secure Network” is a network (whether a standalone intranet network or a virtual private network within the Internet) which is only accessible to users authorized by the Customer and whose access rights are authenticated at the time of login and periodically thereafter consistent with good industry practice;
“Service” means any service to be provided by XLSCOUT under the Agreement Including the provision of a Product, a Support Service, or a Professional Service;
“Site” means Customer’s site and/or the designated operating location within a Customer’s site as set out in the Cover Sheet;
“Software” means any software provided by XLSCOUT as either (i) incorporated in a Product; or (ii) provided on a standalone basis as set out in the Cover Sheet, including, where applicable, all Updates and Upgrades issued thereto;
“Support Services” means any support and maintenance services to be provided by XLSCOUT in relation to a Product as set out in the Cover Sheet;
“Term” means, in relation to a Service, the Initial Term together with any Renewal Term(s);
“Update” means the release of a version of the applicable Product containing error corrections, fixes, patches, or adjustments to the Product, but not including major structural changes and/or significant new features, such version being recognized by an increase in the value of the secondary version number; and
“Upgrade” means the release of a version of the applicable Product containing major structural changes and/or significant new features, the such version being recognized by an increase in the value of the primary version number.
1.2 Unless otherwise stated, references within a Schedule to:
2. TERM, TERMINATION AND SUSPENSION
2.1 This Agreement will take effect on the date the Agreement is signed by both Parties and continue (unless lawfully terminated) until the Initial Term.
2.2 Each Service shall be provided for the Initial Term and shall renew automatically for the Renewal Term, unless one Party gives the other Party at least thirty (30) days’ written notice prior to expiration of the Initial Term or the Renewal Term. Either Party may terminate a Service or this Agreement by giving to the other at least thirty (30) days’ written notice.
2.3 Upon termination or cancellation, if Customer has pre-paid any fees for the receipt of the canceled service in respect of any period following the Initial Term, XLSCOUT’s sole liability to Customer in respect of such cancellation shall be to refund the fees allocable to that service for the period following cancellation.
3. CONSEQUENCES OF TERMINATION OR EXPIRY
Upon termination or expiry of this Agreement (“End Date”), all licenses granted under this Agreement shall cease and Customer shall immediately cease access to and use of all Confidential Information.
4.1 XLSCOUT warrants that it has the right to grant all licenses granted under this Agreement.
4.2 XLSCOUT warrants that it will provide the Services in accordance with industry standards using personnel having reasonably appropriate skills, experience, qualifications and knowledge.
4.3 Each Party warrants to the other that it has authority to enter into this Agreement and that the entering into this Agreement and the performance of its obligations under it will not violate any applicable Legislation.
4.4 EXCEPT AS SET OUT IN THIS AGREEMENT, ALL WARRANTIES, TERMS AND CONDITIONS WHETHER IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE, ARE EXCLUDED TO THE FULLEST EXTENT PERMITIED BY LAW, INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
4.5 XLSCOUT MAKES NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, COMPLETENESS OR CORRECTNESS OF ANY LICENSED MATERIALS OR AS TO ANY SERVICES BEING UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS IN THE LICENSED MATERIALS WILL BE CORRECTED. IN PARTICULAR, XLSCOUT, ITS AFFILIATES AND THIRD PARTY SUPPLIERS WILL NOT BE LIABLE FOR (I) ANY CORRUPTION, ALTERATION, DAMAGE, LOSS OR MISTRANSMISSION (AS APPLICABLE) OF CUSTOMER’S OR ANY THIRD PARTY’S DATA, SOFTWARE, HARDWARE OR SYSTEMS; AND (II) LOSS OR DAMAGE RESULTING FROM THE INADEQUACY OF SECURITY OF DATA DURING TRANSMISSION VIA PUBLIC ELECTRONIC COMMUNICATIONS NETWORKS OR FACILITIES.
4.6 The Licensed Materials may contain links to Internet sites operated by third parties. Where such links exist they are provided for Customer’s convenience only. XLSCOUT does not control such Internet sites and is not responsible for their content. XLSCOUT’s inclusion of links to such Internet sites does not imply any endorsement of the material on such Internet sites or any association with their operators and XLSCOUT makes no warranties in respect of such Internet sites.
5 . EXCLUSION AND LIMITATION OF LIABILITY
5.1 NEITHER PARTY WILL BE LIABLE TO THE OTHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR A SERVICE HOWEVER SUCH INDIRECT LOSS OR DAMAGE MAY ARISE EVEN IF THAT PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH INDIRECT LOSSES.
5.2 EACH PARTY’S LIABILITY WHICH MAY ARISE OUT OF OR IN CONNECTION WITH A SERVICE AND/OR THE AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL, IN RESPECT OF ANY INCIDENT, OR SERIES OF CONNECTED INCIDENTS:
5.3 Clauses 5.1 and 5.2 shall:
6. LIMITED LICENSE OF CUSTOMER DATA
6.1 The Customer hereby grants a royalty free, worldwide, sub-licensable (in accordance with the terms of this License) and, revocable license to XLSCOUT with the right and license to collect, process, store and otherwise use the Client’s inputs, and the Output generated by XLSCOUT based on the Input, to exclusively perform and render the Services, as desired by the Customer.
6.2 For avoidance of doubt, it is clarified that this license grant shall include but not be limited to the right to:
1 .Collect, use, and process the Input and the generated Output;
2. Store the Data [wherein ‘Data’ means and includes Input and Output] for a period of seven (7) days;
3. Share and transmit the Customer’s Input with trusted Third-Party Suppliers of XLSCOUT, for the limited purpose of rendering the Services, wherein the Third Party Supplier/s may collaborate with XLSCOUT on whole or part of the Service (“Collaboration”), and in such Collaboration, the Third Party Supplier may have access to whole or part of the Data.
4. Sublicense such rights granted in this Agreement to the Third Party Supplier (s) for Collaboration, for the sole purpose of effective and efficient rendering of the Services selected by the Customer.
6.3 The Customer shall continue to exclusively retain all rights, title and interest in and to all Data, and the Intellectual Property Rights embodied or associated therewith, whether or not applied for.
6.4 XLSCOUT undertakes that the Data is not used to train, retain or improve the models of XLSCOUT or the Third Party Suppliers. The sharing of Data shall be done under confidentiality obligations, mutually agreed upon and signed between the Customer and XLSCOUT or available under the terms of Content Security Policy.
7. CONFIDENTIAL INFORMATION
7. 1 Each Party (the “Receiving Party”) shall keep any Confidential Information received from or belonging to the other or it’s Affiliates (the “Disclosing Party”) secret and shall not:
7.2 Clause 7.1 shall not apply to any Confidential Information to the extent that:
1.it is or becomes generally and freely available to the public through no fault of the Receiving Party or its employees, contractors or agents; or
2. it can be shown to have been independently originated by the Receiving Party or communicated to it by a third party on a no confidential basis provided that such third party did not breach a confidentiality obligation in making such communication to the Receiving Party.
7.3 In the event that the Receiving Party becomes legally compelled (or requested by an applicable regulatory body) to disclose any Confidential Information, the Receiving Party will provide the Disclosing Party with prompt written notice (unless legally prohibited) so that the Disclosing Party may either: (i) seek an order preventing disclosure or such other appropriate remedy (and if the Disclosing Party seeks such an order or remedy, the Receiving Party will provide such cooperation as the Disclosing Party reasonably requests); and/or (ii) waive compliance with the provisions of this clause 6. In the event that such an order or other remedy is not obtained, or if the Disclosing Party waives compliance with the provisions of this clause 6, the Receiving Party will furnish only that portion of the Confidential Information which is legally required (in the reasonable opinion of its legal counsel).
8.1 Subject to clause 8.2:
8.2 A Party seeking to rely on an indemnity under clause 8.1 (“Claiming Party”) may only make a claim under the relevant Indemnity provided that it: (i) shall promptly notify the other party (“Indemnifying Party”) of any such claim; (ii) does not, without the Indemnifying Party’s written consent, do or omit to do anything, or make any admission, which materially prejudices the Indemnifying Party’s defense of such claim; and (iii) takes all commercially reasonable steps to mitigate any loss or damage to the third party claimant.
8.3. In the event an injunction is sought or obtained against Customer, XLSCOUT may, at its sole option and expense: (a) procure for Customer the right to continue receiving the affected Licensed Material; (b) replace or modify the affected Licensed Material so that it does not infringe; or (c) terminate this Agreement in respect only of the affected Licensed Material and pay to Customer a pro-rata refund of the Fees allocable for such Licensed Material for the period from the End Date to the end of the pre-paid period (if any).
9. FEES AND PAYMENT
9.1 Customer shall pay to XLSCOUT in accordance with the payment provisions set out on the Annexure 1 the Fees;
9.2 If Customer (or any of its Affiliates) acquires, merges with or is acquired by another company such that the other company and, where applicable, its Affiliates, become(s) an Affiliate/Affiliates of Customer and as a result is fare or would be entitled to use the Services under this Agreement, XLSCOUT shall be entitled to revise the Fees to account for the subsequent increased scope of use within the terms of the applicable license.
9.3 Without prejudice to any other rights or remedies that XLSCOUT may have, XLSCOUT reserves the right to charge interest and Customer shall pay such interest on any outstanding amounts after their Due Date, with effect from the due date until the date of receipt by XLSCOUT of cleared funds in full at the monthly rate of 5% (or the highest amount permitted by applicable Legislation, whichever is less).
10.1 Neither Party will be liable to the other for any failure or delay in the performance of its obligations under this Agreement (except for payment of money) due to circumstances beyond its reasonable control.
10.2 Failure or delay by either Party in exercising any right or power hereunder will not constitute a waiver of such right or power unless agreed in writing pursuant to clause 10.4.
10.3 Customer shall not assign, sub-license or delegate any of its rights or obligations under this Agreement without the prior written consent of XLSCOUT, which consent may not be unreasonably conditioned, withheld, or delayed. XLSCOUT may sub-contract or transfer all or any or its rights or obligations under the Agreement to any third party, provided that in the case of subcontracting, XLSCOUT shall remain responsible for the performance by its subcontractors of such obligations under this Agreement. Any assignment, sub-licensing or delegation in breach of this clause shall be null and void.
10.4 Any amendment to this Agreement shall only be effective if in writing and executed by a duly authorized representative of each Party.
10.5 XLSCOUT may use Customer’s name and logo as part of a list of customers and may refer to Customer as a user of its Products and Services in its advertising and marketing activities and further Customer agrees to participate in other marketing activities which may include but not be limited to writing references and case studies, speaking at XLSCOUT sponsored events and participation in XLSCOUT sponsored webinars. Each Party shall obtain the other Party’s permission, not to be unreasonably withheld, prior to using the other Party’s name, logos, or other trademarks for any other marketing or promotional purposes. The Parties agree that any press release or other public comments issued by either Party relating to this Agreement (including, without limitation, any dispute under this Agreement), or your subscription to or use of the Products and Services, will be prepared jointly between XLSCOUT and Customer and will be issued only upon mutual agreement of the Parties.
10.6 If any provision of this Agreement is determined to be illegal or unenforceable by any court of competent jurisdiction, it shall be deemed to have been deleted without affecting the remaining provisions.
10.7 Each Party intends that XLSCOUT’s Affiliates and Third Party Suppliers shall be third party beneficiaries of this Agreement and, thus, entitled to enforce this Agreement as if an original party hereto. There shall be no other third party beneficiaries.
10.8 All disputes, controversies, or differences which may arise between the parties, out of or in relation to this Agreement or for the breach thereof, shall be submitted before the Singapore International Commercial Court, except as otherwise agreed to the contrary between the contracting parties in writing.