Undertakings and Warranties. 5.1 Licensor shall indemnify and hold harmless Licensee from and against any direct loss, damage, cost, liability or expense (including reasonable legal and professional fees) arising out of any third party legal action (together, “Claims”) taken against Licensee claiming infringement of intellectual property rights in connection with the Services. This indemnity shall not apply to the extent Licensee has used the Content in breach of the Contract. 5.2 Licensor shall make the Services available via the Website. 5.3 Licensor shall also: 5.3.1 Use all reasonable endeavours to ensure that its server has adequate capacity and bandwidth to support the usage of Licensee at a level commensurate with the standards of availability for information services of similar scope operating via the world wide web, as such standards evolve from time to time during the Subscription Period; and 5.3.2 Use all reasonable endeavours to make the Services available to Licensee at all times, save for routine maintenance, and promptly to restore access to the Services in the event of an interruption of the Services. 5.4 Licensee hereby acknowledges publishing schedules for the Services are subject to modification from time to time, in common with standard industry practice. 5.5 Licensor shall provide usage information for Licensee’s internal use only. 5.6 Licensor will use all reasonable endeavours to ensure that the Services will perform in accordance with any Licensor user guide that is available to Licensee. If the Services fail to perform correctly in all material respects, then Licensor’s obligation shall be limited to using its reasonable efforts to remedy any deficiencies in the affected Services, or at its option, to cancelling, crediting, or refunding the Fee due from Licensee in respect of any period in excess of five (5) business days during the Subscription Period. Neither party shall be liable for any consequential, economic or other direct or indirect loss or damage (including but not limited to any damages payable to a third party, loss of profits or wasted resources) suffered by the other party, provided that the maximum aggregate liability of either party shall not exceed the total fees payable by Licensee for the preceding period of twelve (12) months. The foregoing exclusions and limitations of liability shall not apply in the case of death or personal injury or to violations of Article 4 or indemnities under Article 5. 5.7 Except as provided in Clause 5.6, the Services are provided “as is.” Licensor specifically disclaims any other warranty, express or implied or statutory, including any warranty of merchantability or fitness for a particular purpose. Licensor makes no representation or warranty with respect to the accuracy, completeness, or currentness of the Content or its suitability for investment activities and analysis. In no event will Licensor be liable for the results of Licensee’s use of the Services or Licensee’s inability or failure to conduct its business. 5.8 Licensee acknowledges Licensor’s intellectual property rights in the Services and accordingly shall: 5.8.1 Ensure that Authorised Users are made aware of and agree to abide by these Terms and Conditions; 5.8.2 To the extent practicable, monitor compliance by Authorized Users with these Terms and Conditions and immediately on becoming aware of any breach of them, notify Licensor and take all appropriate steps to desist such activity and to prevent any recurrence; 5.8.3 To the extent practicable, provide Licensor with the IP addresses, or range of IP addresses, of Licensee’s computers or networks from which the Services may be accessed to allow Licensor to restrict access to such IP addresses; 5.8.4 Where Licensee does not provide IP addresses pursuant to Clause 5.8.3, issue passwords or other access information only to Authorised Users and ensure that Authorised Users do not divulge their passwords or other access information to any third party, provided that if any such password or other access information constitutes an email address, then Licensee will permit Authorized Users to use only Licensee-issued email addresses that employ address nomenclature customarily used by Licensee; 5.8.5 Investigate immediately upon notice by Licensor the occurrence of any unusual downloading activity by any Authorised User. 5.9 If the Services contain hosted information, then Licensor is authorized to share usage, pricing, and other relevant information regarding Licensee with the supplier of such hosted information in order to account to the supplier and calculate any commission or royalty, provided that the supplier is subject to obligations of confidentiality regarding such information no less stringent than such obligations under this Contract. 5.10 Licensee acknowledges that the current and then continuing supply of the Services is for the benefit of all licensees of the Services. Accordingly, a condition of the licence granted herein is that Licensee will take no action, directly or indirectly, to prevent Licensor from providing the Services, except for the protection of its own Confidential Information. 5.11 Licensor may include Licensee’s name as a customer in Licensor’s sales and marketing literature, but shall not use such fact to imply that Licensee endorses the Services in particular or Licensor in general. 5.12 Licensee neither will encourage financial reliance by third parties upon, nor invite investment from others based upon, the Content without first obtaining the written consent of Licensor’s corporate secretary to do so, which Licensor may withhold in its absolute discretion. Absent such consent, Licensee will defend, indemnify, and hold harmless Licensor against any Claims made against Licensor based upon such encouragement or invitation.
Appears in 2 contracts
Samples: Licensing Agreement, Licensing Agreement
Undertakings and Warranties. 5.1 Licensor 5.1. Mintel warrants to the Licensee that, to the best of its belief, it is the owner of the copyright in the information comprised in the Services or that it is duly licensed to use the copyright material contained in the information comprised in the Services and that the information comprised in the Services used as contemplated in these Terms and Conditions does not infringe any copyright or other proprietary or intellectual property rights of any natural or legal person. Mintel shall indemnify and hold the Licensee harmless Licensee from and against any direct loss, damage, cost, liability or expense (including reasonable legal and professional fees) arising out of any third party legal action (together, “Claims”) taken against the Licensee claiming actual or alleged infringement of intellectual property rights in connection with such rights. This indemnity shall survive the Servicestermination of these Terms and Conditions for any reason. This indemnity shall not apply if the Licensee has amended the information comprised in the Services in any way not permitted by these Terms and Conditions or if the Licensee has materially breached these Terms and Conditions.
5.2. Subject to the extent Licensee has used the Content in breach format of the Contract.
5.2 Licensor Services to be provided by Mintel as stipulated on the Order Form, Mintel shall make the Services available to the Licensee and to Authorised Users over the world wide web via the WebsiteSite, on CD ROM, and/or hard copy.
5.3 Licensor 5.3. Mintel shall also:also:-
5.3.1 5.3.1. Use all reasonable endeavours to ensure that its server has adequate capacity and bandwidth to support the usage of the Licensee at a level commensurate with the standards of availability for information services of similar scope operating via the world wide web, as such standards evolve from time to time during the Subscription PeriodPeriod(s); and
5.3.2 5.3.2. Use all reasonable endeavours to make the Services available to the Licensee and to Authorised Users at all times, save for routine maintenance, or through failure of Athens, and promptly to restore access to the Services as soon as possible in the event of an interruption or suspension of the Servicesservice.
5.4 5.4. Licensee hereby acknowledges that Mintel’s and other hosted publisher’s future publishing schedules for the Services are subject to modification from time to time, in common with standard industry practice.
5.5 Licensor 5.5. Mintel shall provide usage information in the case of Internet access only for the Licensee’s private internal use only. Such usage information shall be compiled in a manner consistent with the applicable privacy laws, and the anonymity of individual users and the confidentiality of their searches shall be fully protected. In the case that Mintel assigns its rights to another party under Clause 8.1 herein, the Licensee may at its discretion require the assignee either to keep such usage information confidential or to destroy it.
5.6 Licensor 5.6.1 Mintel will use all reasonable endeavours to ensure that the Services and any software relating thereto provided by Mintel will perform in accordance with any Licensor Mintel user guide that is available to the Licensee. If In the Services fail to perform correctly in all material respectsevent of any failure of the services, then LicensorMintel’s obligation shall be limited to using its reasonable efforts to remedy any deficiencies in the affected Servicesservices, or at its option, to cancelling, crediting, crediting or refunding the Fee fees due from Licensee the licensee in respect of any period in excess of five (5) business working days during in any calendar year for which the Subscription Periodservices have failed to perform correctly in all material respects. Neither party The obligation to correct defects or cancel, credit or refund a proportionate part of the fees payable by the licensee for the preceding period of twelve (12) months shall constitute the full extent of Mintel’s liability in respect of any loss or damage sustained by the Licensee whether caused by breach of these Terms and Conditions, misrepresentation, negligence of Mintel (or its employees or agents) or from any other cause, and in particular, Mintel shall not be liable for any consequential, economic or other direct or indirect loss or damage (including but not limited to any damages payable to a third party, loss of profits or wasted resources) suffered by the other partyLicensee, provided that if for any reason this provision is invalid or unenforceable, the maximum aggregate liability of either party Mintel shall not exceed the total fees payable by Licensee the licensee for the preceding period of twelve (12) months. The foregoing exclusions and limitations of liability shall not apply in the case of death or personal injury nor in the case of third party claims against Licensee for copyright infringement nor for the misuse, removal or to violations alteration of Article 4 licensee’s logos or indemnities under Article 5service marks.
5.7 5.6.2 Except as provided in Clause 5.65.6.1 above, the Licensee agrees that the Services are provided “as is.” Licensor ”; Mintel makes no representation or warranty with respect to the accuracy, completeness, or currentness of the information included in the services; and Mintel specifically disclaims any other warranty, express or implied or statutory, including any warranty of merchantability or fitness for a particular purpose. Licensor makes no representation or warranty with respect to the accuracyMintel shall not be liable on account of any such errors, completenessomissions, delays, or currentness of the Content or its suitability for investment activities and analysislosses. In The Licensee agrees that in no event will Licensor Mintel be liable for the results of the Licensee’s use of the Services or Services, the Licensee’s inability or failure to conduct its business, or for indirect, special, consequential, or exemplary damages (even if advised of the possibility of such damages) arising from the use of or inability to use the Services or any other provision of this Agreement, such as, but not limited to, loss of revenue, anticipated profits or business, or the cost of procuring substitute services. In the event any law regarding exclusion or limitation of warranties or damages may limit the applicability of the above limitations, the total aggregate liability of Mintel for any claims, losses or damages shall not exceed the Fees payable by the Licensee for the preceding period of twelve (12) months.
5.8 5.6.3 The Licensee shall notify Mintel in writing immediately and exclusively at any time the Licensee believes it may have discovered a potential or actual error(s) in any of the information included in the Services. Upon receipt of any such written notice from the Licensee, Mintel will use all reasonable efforts to (i) investigate any such potential or actual error(s), and (ii) if necessary, rectify and correct any such error(s) so discovered.
5.7. Licensee hereby acknowledges LicensorMintel’s (and in the case of hosted information, that of the provider’s of the hosted information services) ownership of the intellectual property rights (including all patents, trade marks, copyrights, database rights, confidential information, licences whether express or implied, trade secrets and knowhow) that are used by Mintel and the providers of the hosted information in connection with the provision of the Services (the “Intellectual Property Rights) In order to safeguard such Intellectual Property Rights, the Licensee shall:
5.7.1. Use all reasonable endeavours to ensure that all Authorised Users are appropriately notified of the importance of respecting the Intellectual Property Rights and Conditions of Use of the Services and accordingly shall:of the sanctions which the Licensee imposes upon Authorised Users for failing to do so, in accordance with Licensee’s disciplinary process;
5.8.1 Ensure 5.7.2. Enforce the disciplinary process in cases where the Intellectual Property Rights are not so respected immediately;
5.7.3. Use all reasonable endeavours to ensure that Authorised Users are made aware of and agree to abide by by:-
5.7.3.1. these Terms and Conditions; and
5.7.3.2. Mintel’s Conditions of Use of the Services as they may appear on the Site from time to time;
5.8.2 To the extent practicable, 5.7.4. Use all reasonable endeavours to monitor compliance by Authorized Users with these Terms and Conditions and immediately on becoming aware of any unauthorised use of the Services or other breach of themthe terms of these Terms and Conditions, notify Licensor inform Mintel and take all reasonable steps, including appropriate steps disciplinary action, both to desist ensure that such activity ceases and to prevent any recurrence;
5.8.3 To the extent practicable, provide Licensor with the IP addresses, or range of IP addresses, of Licensee’s computers or networks from which the Services may be accessed to allow Licensor to restrict access to such IP addresses;
5.8.4 Where Licensee does not provide IP addresses pursuant to Clause 5.8.3, issue 5.7.5. Issue passwords or other access information only to Authorised Users and use all reasonable endeavours to ensure that Authorised Users do not divulge their passwords or other access information to any third party;
5.7.6. Keep full and up-to-date records of all Authorised Users and their access details, provided that and if any such password appropriate provide Mintel with periodic lists of additions, deletions or other access information constitutes an email address, then Licensee will permit Authorized Users alterations to use only Licensee-issued email addresses that employ address nomenclature customarily used by Licenseesuch records as agreed between the parties from time to time;
5.8.5 5.7.7. Use all reasonable endeavours to ensure that only Authorised Users are permitted access to the Services;
5.7.8. Investigate immediately upon notice by Licensor the occurrence should Mintel advise Licensee of any unusual downloading activity by Authorised User(s);
5.7.9. Provide Mintel wherever possible the IP addresses, or range of IP addresses, of its computers/networks to allow Mintel to restrict access to Licensee’s computers/networks.
5.8. Nothing in these Terms and Conditions shall make the Licensee liable for breach of the Terms and Conditions by any Authorised User.
5.9 If the Services contain hosted information, then Licensor is authorized to share usage, pricing, and other relevant information regarding Licensee with the supplier of such hosted information in order to account to the supplier and calculate any commission or royalty, User provided that the supplier is subject to obligations Licensee has abided by the provisions set out at Clause 5.7 above and provided that the Licensee did not cause, knowingly assist or condone the continuation of confidentiality regarding such information no less stringent than such obligations under this Contractbreach after becoming aware of an actual breach having occurred.
5.10 Licensee acknowledges that 5.9. Each party shall use its best endeavours to safeguard the current intellectual property (including the Intellectual Property Rights), Confidential Information and then continuing supply proprietary rights of the Services is for other party. In particular, each party acknowledges that, other than the benefit Conditions of all licensees Use of the Services, these Terms and Conditions, including the information on the Order Form, are hereby deemed to be confidential. Accordingly, a condition of Mintel reserves the licence granted herein is that Licensee will take no action, directly or indirectly, right to prevent Licensor from providing the Services, except for the protection of its own Confidential Information.
5.11 Licensor may include Licensee’s name as a customer Licensee in Licensor’s its sales and marketing literature, but shall not use such fact to imply that Licensee in any way endorses the Services in particular or Licensor Mintel in general. The Licensee accepts that in the case of hosted information, Mintel shall share usage, pricing and other relevant information regarding Licensee with the supplier of such information.
5.12 5.10. In the event that the Licensee neither will encourage financial reliance obtains or accesses Services not specified on the Order Form as a result of an intentional or unintentional breach of these Terms and Conditions by a third parties uponparty or otherwise, nor invite investment from others based uponand the Licensee then uses such Services in the course of its business, the Content without first obtaining Licensee shall promptly upon such discovery notify Mintel in writing and shall pay an additional Fee equivalent to the written consent then rate card value of Licensor’s corporate secretary such Services.
5.11. The Licensee accepts that the current and then continuing supply of the Service(s) is for the benefit of all licensees and that a condition of the Licence is that the Licensee will not take any action (or encourage or assist others to do so) to prevent Mintel from providing the Service during the subscription period or thereafter, which Licensor may withhold excepting for the protection of its own Confidential Information as defined in Clause 7. This Clause shall survive the termination of this Contract.
5.12. In the event that Mintel becomes aware that Authorised Users who access the Services via Athens or via Mintel’s own remote access control system are not abiding by the terms of these Terms and Conditions or the Conditions of Use, then Mintel reserves the right to deny access to such users and Mintel undertakes to advise Licensee of its absolute discretion. Absent such consent, Licensee will defend, indemnify, and hold harmless Licensor against any Claims made against Licensor based upon such encouragement or invitationactions giving reasons.
Appears in 1 contract
Samples: Terms and Conditions
Undertakings and Warranties. 5.1 Licensor 5.1. Mintel shall indemnify and hold the Licensee harmless Licensee from and against any direct loss, damage, cost, liability or expense (including reasonable legal and professional fees) arising out of any third party legal action (together, “Claims”) taken against the Licensee claiming actual or alleged infringement of copyright or other proprietary or other intellectual property rights in connection with the Servicesrights. This indemnity shall not apply if the Licensee has amended the information comprised in the Services in a manner inconsistent with the original information or if the Licensee has materially breached these Terms and Conditions.
5.2. Subject to the extent Licensee has used the Content in breach format of the Contract.
5.2 Licensor Services to be provided by Mintel as stipulated on the Order Form, Mintel shall make the Services available to the Licensee and to Authorised Users over the world wide web via the Website, on CD-ROM, and/or hard copy and/or via an inter/intranet.
5.3 Licensor 5.3. Mintel shall also:also:-
5.3.1 5.3.1. Use all reasonable endeavours to ensure that its server has adequate capacity and bandwidth to support the usage of the Licensee at a level commensurate with the standards of availability for information services of similar scope operating via the world wide web, as such standards evolve from time to time during the Subscription PeriodPeriod(s); and
5.3.2 5.3.2. Use all reasonable endeavours to make the Services available to the Licensee and to Authorised Users at all times, save for routine maintenance, maintenance and promptly to restore access to the Services as soon as possible in the event of an interruption or suspension of the ServicesService.
5.4 5.4. Licensee hereby acknowledges that Mintel’s and other hosted publisher’s future publishing schedules for the Services are subject to modification from time to time, in common with standard industry practice.
5.5 Licensor 5.5. Mintel shall provide usage information for the Licensee’s internal use only. In the case that Mintel assigns its rights to another party under Clause 8.1 herein, the Licensee may at its discretion require the assignee either to keep such usage information confidential or to destroy it.
5.6 Licensor 5.6.1 Mintel will use all reasonable endeavours to ensure that the Services and any software relating thereto provided by Mintel will perform in accordance with any Licensor Mintel user guide that is available to the Licensee. If In the Services fail to perform correctly in all material respectsevent of any failure of the services, then LicensorMintel’s obligation shall be limited to using its reasonable efforts to remedy any deficiencies in the affected Servicesservices, or at its option, to cancelling, crediting, crediting or refunding the Fee fees due from Licensee the licensee in respect of any period in excess of five (5) business days during the Subscription Period. Neither party shall be liable for any consequential, economic or other direct or indirect loss or damage (including but not limited to any damages payable to a third party, loss of profits or wasted resources) suffered by the other party, provided that the maximum aggregate liability of either party shall not exceed the total fees payable by Licensee for the preceding period of twelve (12) months. The foregoing exclusions and limitations of liability shall not apply in the case of death or personal injury or to violations of Article 4 or indemnities under Article 5.
5.7 Except as provided in Clause 5.6, the Services are provided “as is.” Licensor specifically disclaims any other warranty, express or implied or statutory, including any warranty of merchantability or fitness for a particular purpose. Licensor makes no representation or warranty with respect to the accuracy, completeness, or currentness of the Content or its suitability for investment activities and analysis. In no event will Licensor be liable for the results of Licensee’s use of the Services or Licensee’s inability or failure to conduct its business.
5.8 Licensee acknowledges Licensor’s intellectual property rights in the Services and accordingly shall:
5.8.1 Ensure that Authorised Users are made aware of and agree to abide by these Terms and Conditions;
5.8.2 To the extent practicable, monitor compliance by Authorized Users with these Terms and Conditions and immediately on becoming aware of any breach of them, notify Licensor and take all appropriate steps to desist such activity and to prevent any recurrence;
5.8.3 To the extent practicable, provide Licensor with the IP addresses, or range of IP addresses, of Licensee’s computers or networks from which the Services may be accessed to allow Licensor to restrict access to such IP addresses;
5.8.4 Where Licensee does not provide IP addresses pursuant to Clause 5.8.3, issue passwords or other access information only to Authorised Users and ensure that Authorised Users do not divulge their passwords or other access information to any third party, provided that if any such password or other access information constitutes an email address, then Licensee will permit Authorized Users to use only Licensee-issued email addresses that employ address nomenclature customarily used by Licensee;
5.8.5 Investigate immediately upon notice by Licensor the occurrence of any unusual downloading activity by any Authorised User.
5.9 If the Services contain hosted information, then Licensor is authorized to share usage, pricing, and other relevant information regarding Licensee with the supplier of such hosted information in order to account to the supplier and calculate any commission or royalty, provided that the supplier is subject to obligations of confidentiality regarding such information no less stringent than such obligations under this Contract.
5.10 Licensee acknowledges that the current and then continuing supply of the Services is for the benefit of all licensees of the Services. Accordingly, a condition of the licence granted herein is that Licensee will take no action, directly or indirectly, to prevent Licensor from providing the Services, except for the protection of its own Confidential Information.
5.11 Licensor may include Licensee’s name as a customer in Licensor’s sales and marketing literature, but shall not use such fact to imply that Licensee endorses the Services in particular or Licensor in general.
5.12 Licensee neither will encourage financial reliance by third parties upon, nor invite investment from others based upon, the Content without first obtaining the written consent of Licensor’s corporate secretary to do so, which Licensor may withhold in its absolute discretion. Absent such consent, Licensee will defend, indemnify, and hold harmless Licensor against any Claims made against Licensor based upon such encouragement or invitation.five
Appears in 1 contract
Samples: Terms and Conditions
