XLSCOUT General Services Terms and Conditions
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:
Definitions and Interpretation
In this Agreement, the following capitalized terms have the following meaning:
“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 Client;
“Delivery Method” means the delivery media and/or method through which Client 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 Client 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 Client 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 Client’s IP address (as notified by the Client 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;
“Product” means an XLSCOUT product identified on https://xlscout.com and/or https://xlscout.ai on as is where is basis as applicable;
“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 Client 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 Client’s site and/or the designated operating location within a Client’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);
“Third Party Supplier” means a third-party supplier of content, software, or technology;
“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.
Unless otherwise stated, references within a Schedule to:
a paragraph, are to a paragraph of that Schedule; and
a clause are to a clause of the main body of these Terms and Conditions.
In this Agreement, unless the context otherwise requires, references to:
the words “include”, “includes”, “Including”, “in particular” or any such similar words or phrases shall be construed without the words preceding or following;
the plural shall include the singular and vice versa and use of any particular gender shall include all genders;
any legislation, directives, statutes, statutory provisions, subordinate legislation or any mandatory codes of conduct (together “Legislation”) shall be interpreted as referring to such Legislation as amended and in force from time to time and/or which re-enacts or consolidates such Legislation; and
a “person” or “party” includes a natural person, company corporation, firm, partnership, co-operative company, unincorporated or incorporated association, government, state, statutory authority, foundation or trust.
TERM, TERMINATION AND SUSPENSION
This Agreement will take effect on the date the Agreement is signed by both Parties and continue (unless lawfully terminated) until the initial term.
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.
Upon termination or cancellation, if client has pre-paid any fees for the receipt of the canceled service in respect of any period following the cancellation date, XLSCOUT’s sole liability to client in respect of such cancellation shall be to refund the fees allocable to that service for the period following cancellation.
- CONSEQUENCES OF TERMINATION OR EXPIRY
Upon termination or expiry of this Agreement (“End Date”), all licenses granted under this Agreement shall cease and Client shall immediately cease access to and use of all Confidential Information.
XLSCOUT warrants that it has the right to grant all licenses granted under this Agreement.
XLSCOUT warrants that it will provide the Services in accordance with industry standards using personnel having reasonably appropriate skills, experience, qualifications and knowledge.
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.
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.
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 CLIENT’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.
The Licensed Materials may contain links to Internet sites operated by third parties. Where such links exist they are provided for Client’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.
- EXCLUSION AND LIMITATION OF LIABILITY
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.
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:
IN RELATION TO A SERVICE, BE LIMITED TO AN AMOUNT EQUAL TO THE FEES PAID BY CLIENT FOR THAT SERVICE; and
UNRELATED TO A SERVICE, BE LIMITED TO AN AMOUNT EQUAL TO THE AGGREGATE FEES PAID UNDER THE AGREEMENT, IN THE TWELVE MONTHS PERIOD PRIOR TO THE DATE OF THE INCIDENT (OR THE FIRST SUCH INCIDENT IN THE CASE OF A SERIES).
Clauses 5.1 and 5.2 shall:
not apply in relation to: (i) each Party’s obligation to indemnify the other party arising under Clause 7; (ii) Client’s obligations arising under Clause 8; or otherwise (iii) any liability arising out of or in connection with Client’s infringement of any Intellectual Property Rights in the Products licensed by XLSCOUT under this Agreement; and
subject to Clause 5.3.1 apply equally to XLSCOUT’s Affiliates and Third Party Suppliers as if such third parties were XLSCOUT.
- CONFIDENTIAL INFORMATION
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:
disclose such Confidential Information to anyone except to those of its employees, contractors or agents/Third Party Suppliers who are bound by confidentiality obligations where disclosure is necessary to perform its obligations or exercise its rights under this Agreement; or,
use such Confidential Information other than to perform its obligations or exercise its rights under this Agreement without the prior written consent of the Disclosing Party.
Clause 6.1 shall not apply to any Confidential Information to the extent that:
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
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.
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).
Subject to clause 7.2:
XLSCOUT shall defend, indemnify and hold Client harmless from and against any third party claim arising as a result of XLSCOUT’s breach of the warranty at clauses 4.1 and 4.3.
Client shall defend, indemnify and hold XLSCOUT, its Affiliates and Third Party Suppliers harmless from and against any claim against one of them: (i) that Client’s or any End User’s use of the Licensed Materials outside the scope of this Agreement infringes third party Intellectual Property Rights; and/or (ii) arising out of or in connection with Client’s or any End User’s use of the Licensed Materials in breach of the restrictions on use, as set out in this Agreement.
A Party seeking to rely on an indemnity under clause 7.1.1 or clause 7.1.2 (“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.
In the event an injunction is sought or obtained against Client, XLSCOUT may, at its sole option and expense: (a) procure for Client 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 Client 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).
- FEES AND PAYMENT
Client shall pay to XLSCOUT in accordance with the payment provisions set out on the Annexure 1 the Fees;
If Client (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 Client 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.
Without prejudice to any other rights or remedies that XLSCOUT may have, XLSCOUT reserves the right to charge interest and Client 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 0.5% (or the highest amount permitted by applicable Legislation, whichever is less). Such interest shall accrue on a daily basis both before and after judgment.
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.
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 9.4.
Client 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.
Any amendment to this Agreement shall only be effective if in writing and executed by a duly authorized representative of each Party.
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.
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.
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.
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 for arbitration to be held in New York, New York, U.S.A. Arbitration shall be proceeded by one or more arbitrators under the rules of the International Chamber of Commerce. The award of the arbitrators shall be final and binding upon the parties.