DATAIUM MASTER SERVICES AGREEMENT
This MASTER SERVICES AGREEMENT (the “Agreement”) is by and between you (“Client”) and R. L. Polk & Co. (as successor to Dataium LLC) , a Delaware Corporation having a place of business at 26533 Evergreen Road, Suite 900, Southfield, MI 48076 (“IHS”), This Agreement becomes effective when you click on an IHS “I Agree” button, approve a countersigned Statement of Work (“SOW”), access a IHS online service (“DOS”), transmit data to IHS, receive non-public information from IHS or use of Software.
1. Statements of Work and IHS online services
1.1 Subject to the terms and conditions of this Agreement, IHS shall perform a service, provide an output, deliver a product, or receive data, hereafter collectively known as (“Deliverable”) or when multiple (“Deliverables”) as described in one or more SOWs, or as defined and accepted in one or more DOS’s, for Client, during the term of this Agreement. SOW and DOS are collectively and interchangeably known as (“Engagement”) and when plural (“Engagements”). Engagements may include, but are not necessarily limited to, the details of specific responsibilities and obligations of each party, pricing information, planned outcomes and outputs, specifications, software, processes, data, information, timelines, limits, and file formats. When executed and delivered by both parties, or when accepted online by Client, Engagements shall be deemed incorporated into this Agreement and made a part of this Agreement. If applicable, as part of the Deliverables, Client grants IHS permission to install, or cause to have installed, Software on Client’s Websites, and/or Client’s Customers’ websites.
2. Support, Changes or Conflicts
2.1 IHS shall provide reasonable support to Client through a variety of systems that may include online and live telephone help, FAQ and documentation.
2.2 Change process or conflicts. In the event that either party requires a material change to the scope of the Engagement, such party will provide a written notice to the other for approval, specifying the change requested. Each party agrees that such request may necessitate a change in the applicable provisions of the Engagement. The approved changes are documented and executed under a new Engagement. Based on the nature of the changes documented in the new Engagement, IHS may terminate the previous Engagement.
3. Client’s use of the Deliverables
3.1 Use. Client may use the Deliverables solely for Client’s own internal business purposes and in accordance with the terms and conditions of this Agreement. Client shall not permit any third party to use, or have access to the Deliverables except as expressly permitted in this Agreement.
3.2 Relationship. Client acknowledges that in providing the Deliverables, IHS may rely on various data provided by Client, such as customer lists, and said data may or may not include identity of individuals or representations of individuals, but in either case, collectively, all data provided to IHS by Client is considered NDCD. Client warrants that any and all NDCD (a) were lawfully obtained, (b) are the property of Client, (c) Client has a verifiable relationship with individuals contained in the NDCD, (d) Client has the lawful right to provide NDCD to IHS, and (e) Client’s directions to IHS on NDCD use is lawful, or in those cases where the NDCD are the property of the Client’s Customer, then the Client warrants the Client’s Customer has said verifiable relationship.
3.3 Relevance. Client warrants that any use of Deliverables, or results from use of Deliverables that contain offers, promotions, advertisements or the like, will be designed by Client to be directly relevant to a current or recent in-market automotive shopper. Further, IHS reserves the right to require, and Client agrees to timely provide, a copy of any or all offers, promotions, scripts or the like, distributed, or to be distributed by Client and IHS reserves the right to deny any or all distributions, upon its sole discretion, and without recourse or penalty.
3.4 Resources. Client shall be solely responsible for, at its own expense, acquiring, installing and maintaining all connectivity equipment, internet and network connections, hardware, software and other equipment as may be necessary for Client, or Client’s Customer, to obtain access to Deliverables.
4. Client Information and Assistance
4.1 Operational Information and Account Information. To the extent required for IHS to provide the applicable Deliverables to Client and for Client to use the Deliverables as described in the Engagement, Client may provide to IHS (a) operational data and information (“Operational Information”) and account information such as, but not limited to, Client’s mailing address, telephone number, contact information, etc. referred to as (“Account Information”). Account Information and Operational Information are collectively referred to as (“Client Information”). Client agrees to maintain and update its Client Information, as required, to keep it accurate, current, and complete. IHS may suspend Client’s rights to access or use any Deliverable if any Client Information is reasonably determined by IHS to be false, inaccurate, or incomplete. Client agrees that IHS may store and use Client Information to provide the Deliverables under this Agreement, including, without limitation, use of payment information to maintain Client’s accounts and billing for any and all fees incurred. Client Information shall be stored within IHS’s hosting centers. IHS shall maintain Client Information within IHS’s hosting centers with separate logical security access.
4.2 Account. As party to this Agreement, Client may receive or establish access to transmit information to or from IHS that may include, but limited to browser-based information systems or a secure file transfer account(s) collectively referred to as an (“Account”). Client is solely responsible for maintaining the confidentiality and security of its Account. Client is entirely responsible for all activities that occur on or through the Account, and agree to immediately notify IHS of any unauthorized use of Client’s Account or any other breach of security. Client shall not impersonate another IHS client or provide false identity information to gain access to or use the Deliverables. IHS shall not be responsible for any losses arising out of the unauthorized use of Client’s Account. Client shall abide by all local, state, national and foreign laws, treaties and regulations applicable to Client in connection with Client’s use of the Deliverables, including those applicable to data privacy, international communications and the transmission of technical or personal data. Client accepts responsibility for protecting all Deliverables under reasonable administrative, physical and technical safeguards. Client agrees to notify Company in the event the safeguards are compromised.
4.3 Cooperation. The parties shall reasonably cooperate with each other to facilitate IHS’s provision of the Deliverables for Client..
5. PII and Anonymous Activity Distinction. IHS’s primary business is the collection and aggregation of anonymous shopping behavior to aid in the forecasting of trends, analysis of marketing, and independent benchmarking of performance. During its processes, IHS occasionally, is provided, receives or collects data in such a form that it may be possible to personally identify an individual and use said data to directly contact a unique individual, examples include, name, address, telephone number or email address, and this type of data is customarily known as Personally Identifiable Information (“PII”). PII is separate from those processes that can be used to identify one anonymous web browser activity as distinct from another anonymous web browser activity, based on the persistence, over time, of an identifier remaining associated with a specific web browser (“Web Browser ID”). As is customary for internet marketing and web analytics companies, Web Browser IDs are frequently connected to browsing behavior, website content, and/or browser data. When collected from a single unique website, this connected data is collectively called (“Anonymous Activity”). IHS frequently aggregates or enhances Anonymous Activity using both proprietary and industry standard processes. Anonymous Activity that is aggregated or enhanced by IHS is known as IHS enriched data (“DED”). When referred to jointly, Client PII and Anonymous Activity will be known collectively as client’s consumer activity data (“CCAD”). (“Consumer”) is defined as an individual person and not the Client.
5.1 Consent to the Collection and Aggregation of Information. Under the terms of this Agreement and in order for IHS to collect and aggregate data into the Deliverables, Client consents to IHS’s collection and use of all Materials, CCAD, Client Information, Client’s Websites, and/or DED. (“Client’s Websites”) refers to any website, or similar technology, associated with a Client’s Deliverable that is; a Client-owned website, a Client’s Customers’ website(s), and, if Client is a website provider, websites hosted on the Client’s website platform. This definition does not preclude the Client’s obligation and requirement to have the requisite contractual permission from each website owner to collect, share or disclose any and all data. Client warrants that such permission clearly state that the Client has the authority to collect, use and disclose data to any third party, and thus, Client warrants to fully indemnify IHS on any of the above.
6. Deliverable Fee Payment and Invoice
6.1 Client agrees to pay for all Deliverables developed or provided by IHS and Client agrees that IHS may invoice Client for any Deliverables in connection with Client’s Account (“Deliverables Fee”). Client shall pay IHS upon receipt of the applicable invoice. Deliverables Fee obligations are non-cancelable and amounts paid are non-refundable. IHS may assess a late fee of 1.5% on any undisputed amount that remains unpaid thirty (30) days after due, calculated monthly from the date due until paid.
6.2 Late Payments. In addition to any other rights or remedies available to IHS, IHS reserves the right to suspend Client’s access to the Deliverables if any undisputed amounts remain unpaid thirty (30) days after due. IHS reserves the right to impose a reasonable reconnection fee if access to the Deliverables is suspended and Client later requests access to the Deliverables.
6.3 Invoice Dispute. If Client disputes any charges, Client must advise IHS in writing of the dispute within thirty (30) days of the due date for payment of the invoice. If such written notice is not received by IHS by such date, Client shall have waived its right to dispute the amount due.
6.4 Taxes. All charges are exclusive of federal, state and local excise, sales, use, VAT, and other taxes now or hereafter levied or imposed on the Deliverables provided under this Agreement. Except for taxes on IHS’s corporate franchise, net income or net worth, Client shall be liable for and pay all such taxes and other levies, including applicable interest or penalties applied by the taxing jurisdiction, whether or not listed on IHS’s invoices.
7. Restrictions. Client acknowledges and agrees that the Deliverables, including any part of the Deliverables reflect usage restrictions established by IHS and its licensors set forth are referred to as (the “Usage Restrictions”). Client’s use of the Deliverables is subject to the following restrictions. Client shall not, and shall not permit others to, (a) infringe IHS’s or any third party’s copyright, patent, trademark, trade secret, or other intellectual property rights, or rights of publicity or privacy; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the object code form or structure of the Deliverable; (c) provide false, inaccurate or misleading information; (d) initiate any fraudulent transaction; (e) refuse to cooperate in an investigation or provide confirmation of Client’s identity or any information Client provides to IHS; (f) facilitate any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or information Client provides or receives through the Deliverables; (g) use any robot, spider, other automatic device, or manual process to monitor or copy the Deliverables; (h) use any method to bypass any restrictions IHS places on the Deliverables, or interfere or attempt to interfere, with the Deliverables; (i) use, modify, copy, or otherwise reproduce any Deliverables in whole or in part; (j) distribute, sublicense, assign, share, timeshare, sell, rent, or lease Deliverables; or (k) remove any proprietary notices or labels displayed on the Deliverables. Terms of this Agreement are confidential. All rights not expressly granted to Client are reserved by IHS. There are no implied rights.
8.1 Generally. IHS uses commercially reasonable efforts to maintain availability of the Deliverables twenty-four (24) hours per day, seven (7) days per week. However, scheduled and unscheduled interruptions do occur. IHS does not warrant or guarantee uninterrupted availability of the Deliverables. If Client facing service disruption is anticipated to exceed 30 minutes during a scheduled maintenance window, IHS shall provide the Client reasonable notice before a scheduled disruption. Normal software or hardware upgrades are typically scheduled for nights and weekends and designed to cause a minimal interruption to the Deliverables. Client shall be notified of scheduled interruptions in advance. If an unscheduled interruption occurs, IHS shall assign the appropriate internal and external resources to resolve the problem and return the Deliverables to availability as soon as possible. Client agrees to cooperate with IHS during the scheduled and unscheduled interruptions. In no event shall IHS be liable for any fees, costs damages or other amount incurred by Client due to unavailability of the Deliverables.
8.2 Maintenance and Development. IHS and its licensors reserve the right to modify, suspend, impose limits on certain features and services, restrict Client’s access to parts of the Deliverables, or discontinue the Deliverables or any portion thereof at any time, including the availability of any functional area of the Deliverables. Client acknowledges that Client may no longer be able to use the Deliverables to the same extent as prior to such change or discontinuation, and that neither IHS nor any third party shall have any liability to Client in such case.
8.3 IHS SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. IHS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS
8.4 Reliability and Storage Time. Under normal conditions, IHS shall store Client data for three (3) years. IHS uses commercially reasonable practices, including redundancy, failover and backup practices, to minimize unplanned interruptions of service and to minimize risk of loss of data. However, IHS does not warrant or guarantee that such events shall not occur, and IHS has no liability for any interruptions in service or loss of data. Client agrees to keep copies of any data it provides to IHS. IHS’s sole and exclusive obligation for any loss of client provided data or related data is to use reasonable efforts to provide Client with the most recent backup of the affected data. At termination of this Agreement, where possible, and upon Client’s written request, IHS shall (a) return the data to Client in its original format, or (b) permanently remove the data from IHS’s systems, at no additional cost to Client and upon return, IHS shall have no further obligation to maintain the data for Client.
9. Warranty and Disclaimers
9.1 Warranty. IHS warrants that it shall provide the Deliverables as set forth in this Agreement. IHS will, at its own expense and as its sole obligation, and Client’s exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct or repair the Deliverables in breach of the foregoing warranty reported to IHS by Client in writing within 30 days after Client experiences the error (“Error”).
If, however, IHS is unable to provide a correction or repair for any such Error within 30 days after receiving notice of an Error from Client, Client may terminate this Agreement upon notice to IHS and, as its sole obligation, IHS shall refund the amounts paid by Client for Deliverables for the period during which the Deliverables were not usable by Client. The warranties set forth do not cover or apply to (i) any Error caused by Client or other parties within Client’s control, (ii) any Error or unavailability of the Deliverables caused by use of the Deliverables in any manner or in any environment inconsistent with its intended purpose, (iii) any of Client’s hardware or software if modified or repaired in any manner which materially adversely affects the operation or reliability of the Deliverables, or (iv) any equipment or software or other NDCD utilized in connection with the Deliverables used by Client.
9.2 DISCLAIMER OF ALL OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED, IHS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, COVENANT OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE DELIVERABLES OR ANY DATA. IHS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE DELIVERABLES SHALL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER DOS OR DATA, (B) THE DELIVERABLES SHALL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, (C) ALL ERRORS OR DEFECTS SHALL BE CORRECTED, OR (D) THE METHODS THAT MAKE THE DELIVERABLES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY PROVIDED, THE DELIVERABLES ARE PROVIDED TO CLIENT STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY IHS AND ITS LICENSORS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. Term and Termination
10.1 Term. The term of this Agreement shall begin on the Effective Date and shall continue until terminated in accordance with the criteria defined in this Agreement.
10.2 Termination for Convenience. Either party may terminate this Agreement by providing the other party with thirty (30) days prior written notice. If Client terminates this Agreement for convenience Client shall not be entitled to any refund of any prepaid amounts for any Deliverables.
10.3 Termination for Cause. Either party may terminate this Agreement immediately if (a) the other party breaches any term and such breach is not cured within thirty (30) days after receipt of notice of such breach.
10.4 Effect of Termination. Upon termination or expiration of this Agreement for any reason, all rights to use the Deliverables shall terminate. Sections 5, 6, 9.4, 10, 11, 12, 13 and 14 of this Agreement shall survive termination or expiration of this Agreement.
11. Ownership. IHS owns all right, title and interest in all proprietary software included as part of the Deliverables, including all modifications, updates, revisions or enhancements thereto, all associated or related data, media, printed content, and “online” or electronic documentation, and all intellectual property rights contained therein collectively known as (the “Software”). IHS acknowledges and agrees that the CCAD shall at all times be property of Client or Client’s Customers and IHS agrees to handle CCAD in accordance with IHS’s public policy defined on (IHS.com/consumers/). Client acknowledges and agrees that any data analysis, insights, IHS IDs, reports, charts or information, other than CCAD data, that is, (a) an aggregation or enhancement of CCAD, or (b) is combined with the data of other clients or third parties, shall at all times remain or become property of IHS. IHS may make certain CCAD available to companies it has a strategic relationship to perform work on IHS’s behalf to assist IHS in providing the Deliverables. Unless explicitly provided for in this Agreement, no transfer of ownership of any intellectual property rights shall occur under this Agreement.
12. Confidentiality / Proprietary Information
12.1 Any confidential information pursuant to this Engagement may include information that is publicly available, information that is not publicly available, or a combination of both. IHS agrees to only use said information as (a) permitted by this Engagement, or (b) as required by law, or (c) with prior written approval from Client. IHS and Client acknowledge that the information disclosed herein may constitute proprietary information and trade secrets of the disclosing party and agrees that it shall maintain such confidential information in strict confidence and shall not disclose to any person or entity, or license, either during the term of this Agreement or at any time thereafter, any confidential information, data, trade secret or any other proprietary or confidential matter of which it becomes aware and which in any way relates to the business, financial or property affairs of the disclosing party or its subsidiaries or affiliates, without the disclosing party’s prior written consent. The recipient agrees to use appropriate safeguards to prevent disclosure of the confidential information of the disclosing party in a manner other than as provided for by this Agreement, including, but not limited to, protecting written documents and electronic files. The recipient shall restrict access to the disclosing party’s confidential information to those employees, officers, subcontractors and other third parties whose access is necessary for the performance of the Deliverables.
If IHS or any of its representatives are requested pursuant to, or become compelled by law, regulatory request, legal process, subpoena or court order to disclose confidential information, IHS will provide Client with prompt advance written notice of such intended disclosure so that Client may seek a protective order or other appropriate remedy. IHS will furnish only that portion of the confidential information, which is legally required and IHS shall reasonably cooperate with Client’s efforts, at Client expense, to obtain reliable assurance that confidential treatment will be accorded the confidential information.
12.2 Both parties warrant that they will keep confidential the names of the others’ employees and contractors, and agree to not hire, contract with, recruit, solicit or employ, in any way, an employee or contractor, that is either employed by, or recently employed by, under contract with, or recently under contract with, the other party, for a period of two years after the relationship with IHS is terminated, or for two years after the use of any of IHS’s data ceases to be consumed, used, accessed, or economically benefited from, whichever one is the greater of the said two years. For purposes of clarity, any employee or contractor that meets the above criteria will henceforth be called an (“Individual”). Further, it is mutually agreed that the above two year restriction also applies to any entity or organization that is associated with, or plans to become associated with, an Individual that is, or plans to become, a principal in, significant equity holder of, or would reasonably be considered a key member of, an entity or organization, unless written notice is provided to, and written permission is received from, the other party, in advance of the commencement of negotiations with, or engagement of, the Individual, or the applicable entity or organization.
13.1 Claims Against Client. IHS will defend, at its own expense, any claim, suit or action against Client brought by a third party to the extent that such claim, suit or action is based upon an allegation that the Software infringes any intellectual property rights of such third party (“Client Claim”), and IHS will pay those costs and damages finally awarded against Client in any such Client Claim that are specifically attributable to such Client Claim or those costs and damages agreed to in a monetary settlement of such Client Claim. The foregoing obligations are conditioned on Client: (a) promptly notifying IHS in writing of such Client Claim; (b) giving IHS sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at IHS’s request and expense, assisting in such defense. Notwithstanding the foregoing, IHS will have no obligation with respect to any infringement claim based upon: (1) any use of the Deliverables not in accordance with this Agreement; (2) any use of the Deliverables in combination with products, equipment, software, or data not supplied or approved by IHS if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (3) any modification of the Deliverables by any person other than IHS or its authorized agents or subcontractors. This reflects IHS’s entire liability and Client’s sole and exclusive remedy for infringement claims or actions.
13.2 Claims Against IHS. Client will defend, at its own expense, any claim, suit or action against IHS brought by a third party to the extent that such claim, suit or action is based upon Client’s use of any DOS, or the Deliverables not in accordance with this Agreement or any violation of applicable laws (“IHS Claim”), and Client will pay those costs and damages finally awarded against IHS in any such action that are specifically attributable to such IHS Claim or those costs and damages agreed to in a monetary settlement of such IHS Claim. The foregoing obligations are conditioned on IHS: (a) promptly notifying Client in writing of such IHS Claim; (b) giving Client sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Client’s request and expense, assisting in such defense. Notwithstanding the foregoing, Client will have no obligation to any IHS Claim to the extent based upon any use of Deliverables in violation of this Agreement.
14. LIMITATION OF LIABILITY. IN NO EVENT SHALL IHS, ITS DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS BE LIABLE TO CLIENT FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGE, LOSS REVENUE, LOSS PROFITS, LOST OR DAMAGED DATA OR LOST BUSINESS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT AND/OR ENGAGEMENT, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE. IHS’S AGGREGATE LIABILITY TO CLIENT FOR DAMAGES UNDER THIS AGREEMENT AND/OR ENGAGEMENT, REGARDLESS OF THE FORM OF THE ACTION AND WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, SHALL BE LIMITED TO THE AMOUNT OF FEES PAID TO IHS FOR THE DELIVERABLES DURING THE PRIOR SIX (6) MONTHS.
15.1 Export Control. Each party hereby agrees to comply with all export laws and restrictions and regulations of the Department of Commerce or other United States or foreign agency or authority, and not to export, or allow the export or re-export of any proprietary information or software in violation of any such restrictions, laws or regulations, or without all required licenses and authorizations. 15.2 Governing Law. The validity, construction, and interpretation of this Agreement and the rights and duties of the parties hereto shall be governed by the internal laws of the State of Tennessee, excluding its principles of conflict of laws.
15.3 Headings. Headings in this Agreement are for reference purposes only and shall not affect the interpretation or meaning of this Agreement.
15.4 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement shall remain in full force and effect..
15.5 Attorney Fees and Costs. If any legal action is commenced in connection with the enforcement of this Agreement or any payment due herein, the prevailing party shall be entitled to costs and attorneys’ fees actually incurred.
15.6 Force Majeure. Notwithstanding any provision contained in this Agreement, IHS shall not be liable to the extent performance of any term or provision of this Agreement is delayed or prevented by revolution or other civil disorders; wars; acts of enemies; strikes; lack of available resources from persons other than parties to this Agreement; labor disputes; electrical equipment or availability failure; fires; floods; acts of God; or federal, state or municipal action, statute, ordinance or regulation.
15.7 Enforcement of Terms. IHS reserves the right to take steps IHS believes are reasonably necessary or appropriate to enforce or verify compliance with any part of this Agreement (including, but not limited to, IHS’s right to cooperate with any legal process relating to Client’s use of the Deliverables or a third party claim that Client’s use of the Deliverables is unlawful or infringes such third party’s rights). Client agrees to cooperate with any inquiry by IHS to confirm compliance. Client agrees that IHS has the right, without liability to Client, to disclose any Client Information or Account information to law enforcement authorities, government officials, or a third party, as IHS believes is reasonably necessary or appropriate to enforce or verify compliance with any part of this Agreement (including, but not limited to, IHS’s right to cooperate with any legal process relating to Client’s use of the Deliverables or a third party claim that Client’s use of the Deliverables is unlawful or infringes such third party’s rights).
15.8 No Responsibility for third-party-provided Data. Any content or other data from a Client or any third party is known as Non-IHS controlled data (“NDCD”). Client acknowledges and agrees that IHS is not responsible for examining or evaluating the content or accuracy of any NDCD. IHS does not warrant or endorse and does not assume and shall not have any liability or responsibility for any NDCD. Links to other websites are provided solely as a convenience to Client. Client agrees that it shall not use any Deliverables in a manner that would infringe or violate the rights of any other party, and that IHS is not in any way responsible for any such use by Client./p>
15.9 Independent Contractors. In performing any obligation under this Agreement, the parties shall be, and shall conduct themselves as, independent contractors and are not to be considered agents or employees of each other for any purpose.
15.10 Modifications. This Agreement may not be modified by either party in any way except by a written instrument signed by a duly authorized representative of the parties.
15.11 Waiver. The failure of IHS to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
15.12 Dispute Resolution. Any controversy or claim arising out of this Agreement or any dispute between the parties concerning the interpretation of this Agreement, shall first be subject to escalation to appropriate senior management of the parties. Senior management shall use best efforts to reach mutually acceptable resolution of the claim or controversy within thirty (30) days. If the dispute is not resolved within the thirty (30) day period, the dispute may then be filed with the courts.
15.13 Press Release. As a consideration of receiving the licensing rights to use the Software and the Deliverables, Client hereby grants IHS the right to issue a press release announcing Client’s selection of IHS as the supplier of the services covered by this Agreement. Client shall have the right to review and approve the contents of the press release prior to delivery to the media.
15.14 Assignment. Neither party may assign or transfer, by operation of law or otherwise, this Agreement or any of its rights under this Agreement to any third party without the other party’s prior written consent, such consent shall not be unreasonably withheld or delayed; except that either party may assign this Agreement by operation of law or otherwise to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, and shall not confer any rights or remedies upon any person or entity not a party hereto.
15.15 Notices. Notices required by or relating to this Agreement shall be in writing and shall be sent to the parties to this Agreement at their address set forth in the opening paragraph of this Agreement. Either party may change the address by notifying the other party in writing of such change. All such notices shall be given by (i) registered mail – return receipt requested, (ii) nationally recognized courier service, or (iii) facsimile (provided the sender has a confirmation page showing the fax was received) followed by delivery of a hard copy via mail. The effective date of such notice shall be deemed to be the date upon which it is received, except with respect to notices delivered by facsimile, which will be effective immediately on transmission provided a confirming copy is sent in the form of either (i) or (ii).
15.16 No-Third Party Beneficiaries. This Agreement is intended for the sole benefit of IHS and the Client and is not intended to benefit any third party, except in those cases, where: (a) Client has an existing contractual relationship with third party; (b) Client accepts all responsibility for third party’s compliance with this Agreement; (c) Client warrants that third party is made aware of this Agreement, its contents and purpose, (d) third party’s identity is explicitly disclosed to IHS; and, (e) IHS provides prior written approval to Client for the disclosed third party to benefit from this Agreement and the Deliverables. When the above five conditions (a-e) have been met, the third party will be known as a (“Client’s Customer”), and may benefit from this Agreement and the Deliverables.
15.17 Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument. Entire Agreement. This Agreement, including any exhibits, Engagements, and any properly executed amendments or SOWs, contains the entire Agreement and is the exclusive statement of the terms and conditions between the parties with respect to the matters set forth herein and supersedes any other agreements and communications, written or oral, express or implied. Client may also be subject to additional terms and conditions that may apply when Client uses affiliate services, third-party content, or third-party software. Any additional or conflicting terms and conditions contained in Client’s SOW shall not apply and will have no standing, regardless of whether such documents are later in time.
IHS may revise this Agreement at any time without notice by updating this posting. By using a Deliverable after such posted changes, you agree to be bound by any such revisions and should therefore periodically visit the website and page to determine the then current terms and conditions of use to which you are bound. Any new content or features on this website shall be subject to this Agreement. The current version of this Agreement is January 9, 2017. This Agreement applies to your access to and use of the Deliverables, including without limitation, IHS’s analysis of any NDCD you submit, or cause to have submitted to IHS. If you breach any of these terms and conditions, your authorization to the Deliverables automatically terminates and you must immediately discontinue use of DOS and Deliverables, and destroy any downloaded or printed materials.