Upon acceptance of an order for the Services and/or Subscription Service as defined in the attached Schedule, these terms of business shall be a legally binding contract between Client, as identified in the Schedule, and Northern Sky Research LLC, a Delaware Limited Liability Company having an office at One Mifflin Place, Suite 400, Cambridge, MA 02138 (“Company”). Company rejects any additional or different terms or conditions, in any form, tendered by Client or any third party or implied by laws, custom, or course of dealing.
Affiliate: with respect to an entity, any other entity that directly or indirectly Controls, is Controlled by, or is under common Control with that entity.
Agreement: these terms and the Schedule to which they are attached.
Commencement Date: the date specified in the Schedule.
Confidential Information: any information in whatever form, that (i) is either marked or identified in writing as confidential, proprietary, secret or with another designation sufficient to give notice of its sensitive nature, (ii) the receiving party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party, or (iii) is of a type or nature that the receiving party should reasonably understand that the disclosing party desires to protect the information from disclosure, including the business, products, affairs, and finances of Company or Client and trade secrets including, without limitation, technical data and know-how, customer communications or satisfaction surveys, customer lists, the Services provided and their respective charges, fees, costs, and Deliverables produced by Company.
Control: (a) ownership, directly or indirectly, of (i) at least fifty percent (50%) of the aggregate of all voting equity interests in an entity, or (ii) equity interests having the right to at least fifty percent (50%) of the profits of such entity or, in the event of dissolution, to at least fifty percent (50%) of the assets of such entity; (b) the right to appoint, directly or indirectly, a majority of the board of directors of an entity; (c) the right to control, directly or indirectly, the management or direction of an entity by contract or corporate governance document; or (d) in the case of a limited partnership, holding of the position of general partner.
Deliverables: documents produced or commissioned by or on behalf of Client, in the performance of the Services, in whatever form provided by Company as described in the Schedule.
Intellectual Property Rights: any and all rights in: (a) all United States and foreign patents and patent applications, trademarks, service marks, copyrights, registrations, and applications therefor, and rights granted upon any reissue, division, continuation, or continuation-in-part thereof; (b) all maskworks, maskwork registrations and applications therefor, and any similar rights; (c) Confidential Information; (d) all works of authorship, including without limitation, all computer software or programs, source code, executable code, documentation, files, net lists, data, and records, however embodied; (e) all databases, data compilations and collections, and technical data; (f) all ideas, inventions, concepts, technology, methods, processes, drawings, designs, illustrations, writings, know-how, show-how, trade names, logos, trade dress, domain names, web addresses, and web sites, and all rights therein and thereto and all goodwill associated therewith; (g) all rights of personality, privacy, and publicity and all rights of attribution and integrity and other moral rights of an author.
Pre-existing Materials: all documents, information and materials provided by Company relating to the Services which existed prior to the commencement of this Agreement and any and all derivatives thereof.
Taxes: foreign, federal, national, state or local excise, gross receipts, property, access, bypass, sales, use, privilege, or other tax, however designated, levied or imposed (whether as a deduction, withholding or payment) now in force or enacted in the future, which apply to the Services or to Client for its operations and use of the Services, but excluding taxes on Company’s net income.
1.1 Client engages Company to provide the Services as set forth in the Schedule, attached.
1.2 This Agreement shall commence on the date specified in the Schedule attached and shall continue until terminated as provided herein.
2.1 In the event of a conflict between the Schedule and this Agreement the terms of the Schedule shall control.
2.2 Client’s purchase order constitutes an offer by Client to purchase the Services specified in it on these terms and conditions. No offer placed by Client may be accepted by Company other than (a) by Company’s written acknowledgement; or (b) (if earlier) by Company starting to provide the Services, in which case Client shall be deemed to have accepted these terms and conditions.
3.1 Company shall use commercially reasonable efforts to manage or provide the Services, and/or to deliver the Deliverables to Client.
4.1 Client shall comply with all rules, specifications, policies, procedures, and security requirements governing the use of the Services and will:
(a) co-operate with Company in all matters relating to the Services;
(b) provide to Company, in a timely manner, all materials and other information as Company may require and ensure that such materials and information are accurate in all material respects to allow Company to perform the Services; and
(c) obtain and maintain all necessary licenses and consents and relating to the Services.
4.2 Company shall not be liable for any delay, failure to perform, or alteration of the Services, if its performance is prevented or delayed by any act, omission or failure of Client, and Client shall be responsible to Company for additional fees and costs associated therewith.
4.3 Notwithstanding the foregoing, Client shall be liable to Company for all reasonable costs, charges or lost profit sustained or incurred by Company (including, without limitation, any direct, indirect or consequential losses, loss of reputation, loss or damage to property, and/or arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under this Agreement, subject to Company confirming such costs, charges and losses to Client in writing.
5.1 Each party represents and warrants to the other that:
(a) it is qualified and registered to transact business in all locations where the performance of its obligations hereunder requires such qualification;
(b) the person(s) signing the Agreement and the Schedule has all right, power, and authority to sign on behalf of such party; and
(c) a party’s execution of the Agreement shall not conflict with, violate or breach any agreement, covenant, court order, judgment, or decree to bind the party. Client further represents and warrants that neither it, nor any of its Affiliates, officers, directors, or employees are on any US Government export screening lists of the Department of Commerce, or Department of the Treasury including, without limitation, the Denied Persons List, the Entity List, the Debarred List, or the list of Specially Designated Nationals. Client shall promptly notify Company if it is identified on any such lists.
EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THE SERVICES AND ALL MATERIALS (INCLUDING DELIVERABLES) PROVIDED BY COMPANY OR ITS AFFILIATES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF ANY KIND INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
COMPANY DOES NOT MONITOR, EXERCISE CONTROL OVER, OR WARRANT ANY THIRD-PARTY CONTENT OR DATA PROCESSED, TRANSMITTED THROUGH OR OTHERWISE RESIDING ON THE SUBSCRIPTION SERVICE. USE OF ANY CONTENT, DATA, OR INFORMATION OBTAINED VIA THE SERVICES IS AT CLIENT’S OWN RISK.
COMPANY DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE SERVICES SHALL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. COMPANY SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF CONTENT, DATA, AND INFORMATION AVAILABLE THROUGH ITS SERVICES. COMPANY IS NOT RESPONSIBLE FOR THE MANNER IN WHICH THE SERVICES ARE USED BY CLIENT OR ANY OTHER PERSON OR ENTITY ACCESSING SUCH THROUGH OR ON BEHALF OF CLIENT. COMMENTARY AND OTHER MATERIALS POSTED AS PART OF THE SUBSCRIPTION SERVICE ARE NOT INTENDED TO AMOUNT TO ADVICE ON WHICH CLIENT MAY RELY. COMPANY THEREFORE DISCLAIMS ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH MATERIALS BY CLIENT OR BY ANYONE WHO MAY BE INFORMED OF ANY OF THE CONTENTS OF SUCH MATERIALS. WHERE THE SUBSCRIPTION SERVICE PROVIDES LINKS TO OTHER WEBSITES OR RESOURCES PROVIDED BY THIRD PARTIES, THESE LINKS ARE PROVIDED FOR INFORMATION ONLY AND COMPANY SHALL HAVE NO RESPONSIBILITY FOR SUCH WEBSITES OR FOR ANY LOSS OR DAMAGE THAT MAY ARISE FROM CLIENT’S ACCESS TO OR USE OF SUCH WEBSITES.
5.2 Client shall defend, indemnify and hold harmless Company and its Affiliates (the “Indemnitees”) from and against any and all losses, including reasonable attorney’s fees arising out of any claims brought by a third party related to: (i) injury resulting from the fraud, negligence, or willful misconduct of Client, its Affiliates and their respective directors, employees, officers, agents, and contractors, or (ii) use of any of the Services or Deliverables by a Customer Indemnitee Client, its Affiliates, or any other person including but not limited to customers of Client or its Affiliates or any other persons having access to Services or Deliverables through any of the foregoing.
5.3 Company is the owner or the licensee of all Intellectual Property Rights in all materials, Deliverables and other items specified in the Schedule and used in performance of the Services.
5.4 Company does not consent to any part of the Subscription Service and/or any Deliverables (and any extract or the entirety thereof) being presented as “the report of an expert” or “expertized disclosure” under Section 11(a) of the US Securities Act of 1933, as amended, or under any other equivalent securities laws, nor does Company consent to be designated as an “expert” in either marketing, confidential filings, or public offering documentation.
6.1 In consideration of the payment of the fees specified in the Schedule, Client shall be granted access to the Subscription Service and any Deliverables specified in the Schedule for a period set forth in the Schedule.
6.2 Upon termination of the Subscription Service, Client shall have no further right to access the Subscription Service or related materials.
6.3 In order to access the Subscription Service, Client will be provided with full instructions on how to open an account. Client shall treat such information as confidential and shall not disclose it to any third party. Company reserves the right to disable any user identification code or password, if in Company’s reasonable opinion, Client has failed to comply with any of the provisions of the terms of this Agreement.
6.4 Client shall be responsible for making all arrangements necessary to access the Subscription Service. Client shall ensure that all persons who access the Subscription Service through Client’s internet connection are aware of the terms of this Agreement and that they must comply with them.
6.5 Company reserves the right to withdraw, suspend, or amend the Subscription Service without notice. Company will not be liable if, for any reason, the Subscription Service is unavailable at any time or for any period.
6.6 Client may not use the Subscription Service:
(a) in any way that breaches any applicable law, or is unlawful or fraudulent, or has any unlawful, fraudulent purpose or effect;
(b) to transmit, or procure the sending of, any unsolicited or unauthorized advertising, promotional material or other form of similar solicitation (spam);
(c) to provide services to third parties, whether through a service bureau, outsourcing model, as an application service provider, or under similar arrangement; or
(d) to transmit any data or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware, or any other harmful programs or computer code.
6.7 Client shall not:
(a) reproduce, duplicate, copy, or re-sell any part of the Subscription Service and/or any Deliverables; or
(b) interfere with, damage, or disrupt any part of the Subscription Service.
7.1 All Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials are owned by Company. Company hereby grants to Client a license to such Intellectual Property Rights in Deliverables, in the United States only, on a limited, non-exclusive, non-transferable, non-sublicensable basis as is necessary for Client to make reasonable use of the Deliverables and Services solely for Client’s internal business purposes. This license shall automatically terminate when this Agreement terminates. Client may print off and download the Deliverables solely for its internal business reference.
7.2 Client acknowledges that, where Company does not own any Pre-existing Materials, Client’s use of rights in Pre-existing Materials is conditional on Company obtaining a written license (or sub-license) from the relevant licensor or licensors on such terms as will entitle Company to license such rights to Client.
7.3 Client may not modify any materials, including Deliverables.
7.4 Any breach of this Agreement shall entitle Company to terminate Client’s right to use the Subscription Service immediately, without liability, and Client shall, at Company’s option, return, or destroy any copies of such materials it has made and provide a certification, signed by Client’s Chief Information or Privacy Officer, to that effect.
8.1 Client shall pay the charges as set out in the Schedule.
8.2 The total price for the Services shall be paid to Company as set out in the Schedule. Company shall invoice Client in accordance with the Schedule, including all taxes and expenses. Client must identify all payments by invoice number to ensure correct allocation to Client’s account.
8.3 Invoices are payable within 30 calendar days of the invoice date. If any sum is not paid when due then that sum shall bear interest from the due date at the greater of: (i) one and one half percent (1.5%) per month; or (ii) the highest rate permitted by law. Client shall reimburse Company for all collection costs, including reasonable attorney’s fees, incurred in obtaining payment. Client’s payments to Company must be by check or electronic funds transfer (via wire transfer or ACH). Where Client requires Company to utilize a billing system resulting in administrative fees or expenses, Company reserves the right to require that Client reimburse Company for such fees or expenses. Client shall promptly communicate any and all changes to its billing information in advance of the change. Company is entitled to suspend performance of the Services as a result of any payment being overdue. If Client disputes an amount in an invoice, the parties shall promptly discuss and resolve the dispute within thirty (30) days from notice of the dispute. Client may not withhold any disputed amount due to Company during the pendency of the dispute.
8.4 Notwithstanding anything herein sums payable to Company under this Agreement shall become due immediately on its termination without prejudice to any other rights under this Agreement.
8.5 Company may, without prejudice to any other rights it may have, set off any liability of Client to Company against any liability of Company to Client.
9.1 Each party shall keep in confidence, using a reasonable standard of care, all Confidential Information disclosed to it by the disclosing party and shall only use Confidential Information to perform its obligations hereunder.
9.2 The receiving party may disclose such information: (a) to those employees, officers, representatives, agents, or subcontractors who need to know such information to carry out their obligations under this Agreement provided that these individuals are made aware of the need for confidentiality; and (b) as may be required by law or court order.
9.3 Confidential Information does not include information that: (i) was rightfully known by the receiving party without an obligation to maintain its confidentiality prior to receipt from the disclosing party; (ii) was or becomes generally available to the public except through a breach of this Agreement by the receiving party; (iii) was received from a third party who had a lawful right to disclose such information to the receiving party; or (iv) was independently developed by the receiving party without reference to any Confidential Information of the disclosing party.
9.4 Nothing contained in this Agreement shall obligate a party to disclose its Confidential Information to the other.
9.5 If the receiving party becomes legally compelled to disclose any Confidential Information in a manner not otherwise permitted here under, the receiving party shall provide the disclosing party with prompt notice of the request (unless legally precluded from doing so) so that the disclosing party may seek a protective order or other appropriate remedy.
9.6 Upon the disclosing party’s request, the receiving party shall return or at the disclosing party’s election destroy all materials that contain, refer to, or relate to Confidential Information of the disclosing party. The receiving party may retain a copy of the disclosing party’s Confidential Information for legal archival purposes, which shall be kept strictly confidential. The receiving party shall also not be required to return or destroy and may retain a copy of the disclosing party’s Confidential Information on any computer records or files containing the Confidential Information which have been created pursuant to automatic archiving or back-up procedures on secured servers and which cannot reasonably be deleted, provided that all such records shall continue to be treated as Confidential Information. At the disclosing party’s request, the receiving party shall certify in writing that it has complied with this clause.
9.7 Each party shall make or obtain and maintain throughout the term of this Agreement all necessary registration or filings and notifications or consents which such party is obliged to obtain and maintain pursuant to all applicable Data Protection Laws.
10.1 This clause 10 sets out the entire liability of Company (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to Client.
10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER COMPANY, NOR ANY OF ITS AFFILIATES, AGENTS, AND CONTRACTORS, SHALL BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR LOSS OF PROFITS; LOSS OF BUSINESS; DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES; LOSS OF ANTICIPATED SAVINGS; LOSS OF GOODS; LOSS OF CONTRACT; LOSS OF USE; LOSS OF CORRUPTION OF DATA OR INFORMATION; LOSS OF BUSINESS OPPORTUNITY, USE, REPUTATION, SAVINGS, OR ANTICIPATED SAVINGS; BUSINESS INTERRUPTION; THE COST OF PURCHASING REPLACEMENT SERVICES; OR OTHER PECUNIARY LOSS; ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR PURE ECONOMIC LOSS, COSTS, DAMAGES, CHARGES, OR EXPENSES, WHETHER IN ANY SUCH CASE ANY OF THE FOREGOING ARE FORESEEABLE AND HOWEVER CAUSED, EVEN IF COMPANY IS ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES OR LOSSES MIGHT ARISE.
10.3 THE MATERIAL OR CONTENT DISPLAYED VIA THE SUBSCRIPTION SERVICE (INCLUDING ANY DELIVERABLES SPECIFIED IN THE SCHEDULE AS INCLUDED IN SUCH SERVICE) IS PROVIDED “AS IS” WITHOUT ANY GUARANTEES, CONDITIONS, OR WARRANTIES AS TO ITS ACCURACY.
10.4 EXCEPT FOR LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAWS, COMPANY’S MAXIMUM AGGREGATE LIABILITY TO CLIENT UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE SCHEDULE, SHALL BE LIMITED TO DIRECT LOSSES ONLY AND SHALL NOT EXCEED THE AMOUNT PAID BY CLIENT TO COMPANY PURSUANT TO THE SCHEDULE UNDER WHICH THE CLAIM HAS ARISEN IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
10.5 COMPANY SHALL HAVE NO LIABILITY FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT CLIENT’S COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL THROUGH USE OF THE SUBSCRIPTION SERVICE OR THE DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
11.1 Client may terminate this Agreement without liability on giving Company not less than one month’s written notice if:
(a) Company commits a material breach of this Agreement; or
(b) Company ceases to do business, becomes unable to pay its debts as they fall due, becomes or is deemed insolvent, has a receiver, liquidator, manager, administrator, administrative receiver, or similar officer appointed in respect of the whole or any part of its assets; or
(c) Company suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
11.2 Company may terminate this Agreement for any reason by giving 30 days’ written notice to Client.
11.3 Upon termination:
(a) Client shall immediately pay all outstanding invoices and interest for the Services supplied but for which no invoice has been submitted or Company may submit an invoice, which shall be payable immediately on receipt; and
(b) Subject to clause 9.6, Client shall return or destroy all materials provided by Company, including Pre-existing Materials and Deliverables, and shall immediately cease use of the Subscription Service.
11.4 Provisions of this Agreement which expressly survive its termination or which, from their nature or context are to survive termination, shall remain in full force and effect notwithstanding termination.
12.1 Company shall have no liability to Client under this Agreement if it is prevented from or delayed in performing, its obligations under this Agreement or from carrying on its business by acts, events, omissions, or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs, or other industrial disputes, failure of a utility service or transport 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 suppliers or subcontractors (each a “Force Majeure Event”). Upon occurrence of a Force Majeure Event, Company will promptly notify Client.
12.2 Where possible, within a period of one (1) month from the date of notice pursuant to clause 12.1, the parties shall meet to agree on steps to alleviate the effects of any Force Majeure Event.
13.1 Client shall comply with all applicable laws. Company reserves the right, upon reasonable notice, to amend or supplement the Services and the terms or conditions of the Agreement to meet requirements imposed by law. Company has the right, in addition to any other rights and remedies, to immediately cease providing the Services, if Client violates any applicable laws.
13.2 The Services supplied to Client are for use within the country in which Client has registered to receive the Services. Client warrants that the Services will not be used in embargoed territories or where there are currently trade sanctions in place. It is Client’s responsibility to obtain any and all appropriate approvals from applicable government entities, which may include the US Government and/or member states of the EU and EFTA or any other government with jurisdiction, prior to exporting any Deliverables or any technical data.
13.3 This Agreement constitutes the entire agreement between the parties in relation to its subject. The parties each acknowledge that they are not relying on any statements, warranties, or representations given or made by any of them in relation to the subject matter of this Agreement, save those expressly set out in this Agreement.
13.4 This Agreement may be executed in any number of counterparts, each of which shall be an original, and together shall constitute one and the same instrument.
13.5 A waiver of any right under this Agreement is only effective if it is in writing signed by both parties.
13.6 If any provision of this Agreement is found by any court or other authority of competent jurisdiction to be invalid, illegal, or unenforceable, that provision shall, to the extent required, be deemed not to be a part of this Agreement. The validity and enforceability of the other provisions of this Agreement shall not be affected.
13.7 If a provision of this Agreement is found to be illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid, and enforceable.
13.8 Client shall not, without the prior written consent of Company, assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of its rights or obligations under this Agreement. Company may at any time assign, transfer, charge, mortgage, subcontract, or deal in any other manner with all or any of its rights under this Agreement and may delegate any or all of its obligations under this Agreement to a third party.
13.9 Nothing in this Agreement creates a partnership or joint venture of any kind between any of the parties. No party shall have authority to act as agent for the other party in any way.
13.10 Any notice required to be given under this Agreement shall be in writing and shall be delivered personally, or sent by email, post, or by commercial courier to the other party to the attention of the person specified in the Schedule, or as otherwise specified in writing to the other party.
13.11 This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice of law or other provision that would result in the application of the laws of any other jurisdiction. Application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. The parties hereby waive and opt out of the Uniform Computer Information Transactions Act (UCITA).
13.12 Neither party shall, during the term of this Agreement and for a period of twelve (12) months after the expiry or termination thereof, directly or indirectly, employ or offer to employ any person who is an employee of the other party and is involved with the Services. Nothing shall prevent either party from employing or offering to employ a person who has independently responded to a public advertisement not specifically targeted at employees of the other party.
13.13 In the event any dispute is not resolved in the ordinary course of business, the parties shall in good faith attempt to resolve the dispute through negotiation between their representatives. If a dispute cannot be resolved by negotiation within one (1) month of commencement of negotiations, the dispute may be referred to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”), which rules are deemed to be incorporated by reference into this Agreement. All the proceedings shall be conducted in English and shall occur at the AAA office in New York City. Nothing herein shall prevent either party from seeking an interim court order restraining the other party from doing any act or compelling the other party to do any act.