This Master Subscription Agreement (“Agreement”) is made by and between Databook Labs, Inc., with offices at 228 Hamilton Ave. 3^rd. Floor, Palo Alto, CA 94301 (“Databook”), and Customer, and is effective as of the date Customer first accepts this Agreement (“Effective Date”).

Customer’s execution of an Order Document, SOW, or similar document referencing this Agreement constitutes Customer’s acceptance of the terms and conditions of this Agreement. By accepting this Agreement, the individual acting on behalf of Customer represents and warrants that they have the authority to bind Customer to this Agreement and all terms contained herein.

The parties agree as follows:

 

1. Definitions

“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting equity securities or other equivalent voting interests of an entity.

“AI” means artificial intelligence.

“AI Models” means AI models used by Databook to process Customer Data.

“Authorized Users” means Customer and, to the extent acting on Customer’s behalf, those employees of Customer that are provisioned to access the Services in connection with an Order Document entered into by Customer pursuant to this Agreement.

“Customer” means the individual accepting this Agreement either personally, or if acting on behalf of a company or legal entity, the company or entity for which the individual is accepting the Agreement.

“Customer Data” means the data and other information and content supplied by or on behalf of Customer for processing by, or use with, the Services.

“Export Controls” means the laws, regulations, directives, and rulings issued by the U.S. Department of Commerce pursuant to the Export Control Reform Act of 2018 and the Export Administration Regulations, by other U.S. government agencies, and by the governmental authorities of other applicable jurisdictions, governing the exportation, re-exportation, transfer, and deemed export of goods, software, and technology, as applicable to the Customer’s operations.

“Order Document” means each order form or other statement of work referencing this Agreement, which is executed by Databook and Customer, under which Customer subscribes to the Services. Each Order Document will be incorporated into this Agreement upon mutual execution by the parties. In the event of any conflict or inconsistency between this Agreement and an Order Document, except as otherwise expressly set forth in the Order Document, this Agreement will control.

“Output” means the results or other output of the Services generated for or on behalf of Customer hereunder.

“Sanctioned Country” means any country or region that is the subject or target of a comprehensive embargo under Sanctions Laws (presently including Cuba, Iran, North Korea, Syria and the Crimea region, the Donetsk People’s Republic (“DNR”) and Luhansk People’s Republic (“LNR”) of Ukraine, and within the past five years including Sudan).

“Sanctions Laws” means all U.S. and applicable non-U.S. Laws relating to economic or trade sanctions, including the Laws administered or enforced by the United States (including by the U.S. Department of the Treasury, Office of Foreign Assets Control (“OFAC”) or the U.S. Department of State), and the United Nations Security Council.

“Sanctioned Person” means any individual or entity that is the subject or target of sanctions or restrictions under Sanctions Laws, including: (a) any Person listed on any U.S. or applicable non-U.S. sanctions- or export-related restricted or prohibited party list, including but not limited to OFAC’s Specially Designated Nationals and Blocked Persons List, OFAC’s Sectoral Sanctions Identification List, the Entity, Denied Persons and Unverified Lists maintained by the U.S. Department of Commerce, and the UN Security Council Consolidated List; (b) any Person that is, in the aggregate, 50% or greater owned, directly or indirectly, or otherwise controlled by a Person or Persons described in clause (a); or (c) any national of a Sanctioned Country.

“Services” means Databook’s hosted services, content and mobile software as described on the applicable Order Document.

 

2. Services

2.1. Provision of Services.

(a) Use of Services by Customer Affiliates. Each Customer Affiliate identified on an Order Document or SOW (defined below) will be entitled to access and use the applicable Services in accordance with this Agreement and the applicable Order Document or SOW; provided that Customer will remain responsible to Databook for the actions or omissions of each such Customer Affiliate (and each of their Authorized Users). The terms of this Agreement will govern, and will be incorporated by reference in, each such Order Document or SOW as if this Agreement were separately executed by the applicable Customer Affiliate, and the term “Customer” as used in this Agreement will be deemed as applying to such Customer Affiliate for the purposes of such Order Document or SOW.

(b) Access to Services. During the applicable Subscription Term (defined below), and subject to the terms and conditions of this Agreement and the applicable Order Document, Databook grants to Customer a non-exclusive, non-transferable, non-assignable license to use the Services for Customer’s internal business purposes.

(c) Output. During the applicable Subscription Term, and subject to the terms and conditions of this Agreement and the applicable Order Document, Databook will make available Output to Customer via the Services, and Customer will own such Output (excluding Databook’s templates and pre-existing intellectual property and third-party intellectual property). Databook may provide via the Services certain features and functionality that permit the download and/or other export of certain Output. Customer may utilize such features and functionality to download and/or export such Output in the format provided by Databook. Customer will not convey raw Output to third parties who are not Authorized Users for the sole purpose of using the Customer raw Output in lieu of the third party contracting with Databook for their own service access.

(d) Authorized Users. Authorized Users (and only Authorized Users) may access and use the Services on behalf of Customer as permitted hereunder, provided that Customer will remain responsible to Databook for any and all acts or omissions of each Authorized User. An Order Document may provide that Customer is allotted a certain number of Authorized Users for some features of the Services and a separate number of Authorized Users for other features of the Services. An Authorized User may only access and use those features of the Services to which the Authorized User is provisioned by Customer, subject to the limitations set forth in the Order Document.

2.2. Customer Data.

(a) By submitting Customer Data into the Services, Customer hereby grants, and represents and warrants that it has all rights necessary to grant, all rights, consents and licenses to the Customer Data required for Databook and its subcontractors to access and use the Customer Data in connection with the Services and as described herein. Databook will ensure that subcontractors performing Services are bound to terms no less protective of Customer as the terms hereof, and Databook will remain responsible to Customer for any breach of this Agreement by such subcontractor. Databook may create, collect, analyze, and use Customer Materials for the purposes of (a) operating, analyzing and improving the Services for Customer; (b) developing and training AI Models, provided such AI Models are not used to provide Services to anyone other than Customer or its Affiliates; and (c) creating and using de-identified data for publication in benchmarking and other reports and to improve Databook’s products and services, system performance, architecture, and functionality (and such derived data will be Databook’s property). “Customer Materials” shall refer to both Customer Data and Output.

(b) Customer shall not submit any Customer Data as part of the Services that: (a) infringes any third-party intellectual property or proprietary rights; (b) includes sensitive personal information, including without limitation Customer Data containing or revealing government-issued identification numbers; financial information (such as credit or debit card numbers, any related security codes or passwords, and bank account numbers); racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, information concerning health or sex life; information related to an individual’s physical or mental health; and information related to the provision or payment of health care; (c) violates any applicable law or regulation, including but not limited to data privacy laws and export control laws; (d) is obscene, defamatory, or otherwise objectionable; or (e) contains any malicious code, viruses, or harmful components that may disrupt or damage the Services or Databook’s systems. Databook reserves the right, in its sole discretion, to remove or block any such prohibited Customer Data from the Services without liability to Customer.

2.3. Third-Party Data.

Databook may make available on or in connection with the Services certain data, content and information provided by third parties (“Third-Party Data”). The terms and conditions governing Customer’s use of Third-Party Data can be found here (the “Third-Party Data Terms”) and may be updated from time to time by the Company by posting an amended version at the link set forth in the prior sentence. Such Third-Party Data Terms are incorporated herein by reference and control and supersede the terms of this Agreement to the extent of any conflict herewith.

2.4. General Restrictions. Customer will not, and will not permit any third-party (including any Authorized User) to: (a) use the Services except as expressly permitted in this Agreement; (b) decompile, disassemble, or reverse engineer the underlying software to the Services (unless this restriction is not permitted under applicable law); (c) sell, rent, lease or use the Services for time sharing purposes; (d) remove, modify, or obscure any copyright or proprietary notices contained in the Services or Output exported from the Services in the form a screenshot; (e) access or use the Services to circumvent or exceed account limitations or requirements; (f) obtain unauthorized access to the Services (including permitting access to or use of the Services via another system or tool, the primary effect of which is to enable input of requests or transactions by other than Authorized Users); (g) use the Services or Output in a manner that is contrary to applicable law; (h) knowingly publish, post, upload or otherwise transmit any data via the Services that (1) is unlawful or, in Databook’s reasonable discretion, is otherwise objectionable or (2) contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; (i) use or permit the use of any tools in order to probe, scan or attempt to penetrate the Services; or (k) use the Services the purposes of analyzing, profiling or targeting someone’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, age, gender, sex life, sexual orientation, criminal convictions, disability, health status or medical condition.

2.5. Product Specific Terms.

Certain products and features incorporated into Customer’s subscription to the Services may have additional terms (the “Product Specific Terms”). The Product Specific Terms can be found here and may be updated from time to time by the Company by posting an amended version at the link set forth in the prior sentence. Such Product Specific Terms are incorporated herein by reference and control and supersede the terms of this Agreement to the extent of any conflict herewith. The Order Document specifies which Product Specific Terms apply to Customer’s use of the Services.

2.6. Feedback. Customer may choose to or Databook may invite Customer to submit general comments or ideas about the Services’ performance, including about how to improve the Services or Databook’s products (“Feedback”). By submitting any Feedback, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction. Customer further acknowledges and agrees that any such Feedback shall be considered non-confidential and non-proprietary. Databook is free to use, disclose, reproduce, license or otherwise distribute, and exploit this Feedback as it sees fit, without obligation, compensation, or restriction of any kind, except as prohibited by law. Customer further acknowledges that, by acceptance of Customer’s submission, Databook does not waive any rights to use similar or related ideas previously known to Databook, or developed by its employees, or obtained from sources other than Customer.

2.7. Setup Services. Provider will perform implementation or customization services for the Services as specified in an SOW (“Setup Services”). “SOW” means either (a) a description of such services in an Order Document or (b) a mutually executed statement of work that references this Agreement. Setup Services and any associated deliverables are deemed included in the “Services” for purposes of this Agreement.

2.8. Technical Support. Databook will provide Customer such technical support services as set forth in the applicable Order Document.

2.9. Data Processing Addendum. The parties will comply with the Data Processing Addendum posted
at https://databook.com/dpa/ (“DPA”).

 

3. Term and Termination

3.1. Effective Date and Term. This Agreement will commence on the Effective Date and will continue in effect until terminated pursuant to this Section 3 (the “Term”). Any Order Document or SOW will commence on the effective date stated therein and, unless earlier terminated in accordance with this Section 3, will continue for the period stated therein, and thereafter will automatically renew for successive annual periods unless a party gives written notice of its intention not to renew at least sixty (60) days prior to the end of the then-current initial term or renewal term thereof (“Subscription Term”). This Agreement will survive for so long as any Order Document or SOW remains in effect; provided that no new Order Documents or SOWs may be executed after the termination or expiration of this Agreement. Either party may terminate this Agreement at any time for convenience when there are no Order Documents or SOWs then in effect.

3.2. Termination for Cause. Either party will have the right to terminate this Agreement or any SOW or Order Document immediately upon written notice to the other party: (a) if the other party breaches or fails to perform or observe any material term or condition of this Agreement or an SOW or Order Document and such default has not been cured within thirty (30) days after written notice of such default to the other party, or in the event of a material breach by the other party that cannot be cured, Databook may terminate this Agreement immediately upon written notice; or (b) if the other party (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise.

3.3. Effect of Termination. Sections 1, 2.1(c), 2.1(d), 2.2 (with respect to derived data and Databook’s reservation of rights), 2.3, 2.4, 2.5, 2.6, 2.8, 2.9, 3.3, 4, 5, 6, 7, 8 (solely with respect to claims arising during the applicable Subscription Term), 9, 10, 11, 12 and 13 will survive termination of this Agreement and, in relation to its subject matter, any SOW or Order Document. Upon any termination of this Agreement or SOW or Order Document by Databook for cause, all unpaid and undisputed Fees (defined below) under the terminated instrument incurred up to the point of termination will become immediately due and payable. If Customer terminates this Agreement or any SOW or Order Document for cause, then Databook will provide Customer a refund of any prepaid unused Fees corresponding to the terminated period. Nothing contained herein will limit any other remedies that either party may have for the default of the other party under this Agreement or any SOW or Order Document nor relieve either party of any of its obligations incurred prior to such termination.

 

4. Payment

4.1. Fees. In consideration of the Services provided by Databook under this Agreement, Customer will pay Databook the fees in the amounts set forth on the applicable Order Document or SOW (the “Fees”) in accordance with the terms set forth herein and therein. Except as otherwise specified below or in the applicable Order Document or SOW, the Fees for Services are due in advance on an annual basis and will be invoiced on or around the Effective Date and each anniversary thereafter during the applicable Subscription Term. Each Authorized User beyond the number of users specified in the applicable Order Document will incur an additional charge at the per-user Subscription Term price specified in the Order Document which shall be paid in advance for the Subscription Term and thereafter for each renewal term.

4.2. Taxes. Customer will be responsible for the payment of any and all local, state, federal, or foreign taxes, levies, and duties of any nature, including value-added, sales, use, and withholding taxes (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Databook’s net income. If Databook has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount will be invoiced to and paid by Customer unless Customer provides Databook with a valid tax exemption certificate authorized by the appropriate taxing authority.

4.3. Payment Terms. All amounts payable to Databook under this Agreement will be due within thirty (30) days from the date of Customer’s receipt of the applicable invoice. Overdue payments that are not subject to a good faith dispute will be subject to interest at the rate of 1.5% per month, or the highest interest rate permitted by applicable law, whichever is less.

 

5. Representations and Warranties; Disclaimers

5.1. Authority. Each party represents and warrants that it has full corporate power and authority to accept and be bound by this Agreement (and each Order Document and SOW) and to consummate the transactions contemplated herein and therein, and that this Agreement (and each Order Document and SOW) is accepted by an authorized representative of such party.

5.2. Databook Non-Infringement. Databook warrants that the provision and use of the Services by Customer in accordance with this Agreement will not infringe upon or violate any intellectual property rights of any third party. However, Databook makes no representations or warranties with respect to any portion of the Services that rely on AI Models or any portion of the Services or Output derived from data submitted by any Databook customer, to the extent such data infringes any third-party intellectual property or proprietary right. Databook’s sole liability and Customer’s sole remedy for any breach of this non-infringement warranty shall be as set forth in Section 8 of this Agreement.

5.3. Performance Warranty. Databook represents and warrants that it will provide the Services in material accordance with this Agreement and the descriptions and milestones in the applicable Order Document or SOW (the “Performance Warranty”). As the sole remedy for breach of the Performance Warranty, if Customer reports in writing a material breach of the Performance Warranty, Databook will rectify such defect within a reasonable timeframe, not exceeding thirty (30) days from the date of receipt of written notification from the Customer, at no additional cost to the Customer.

5.4. Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT AND ANY SOW OR ORDER DOCUMENT: (A) EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) THE PARTIES AGREE THAT THE SERVICES (INCLUDING THIRD-PARTY DATA) ARE PROVIDED “AS IS” AND “AS AVAILABLE.” DATABOOK MAKES NO OTHER WARRANTY AS TO THE SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT THERE ARE CERTAIN RISKS INHERENT TO THE PARTIES’ ENGAGEMENT HEREUNDER, AND THAT CUSTOMER’S USE OF, AND DATABOOK’S PROVISION OF, THE SERVICES MAY NOT RESULT IN ANY SPECIFIED RESULT. THE PARTIES ACKNOWLEDGE AND AGREE THAT INFORMATION PROVIDED VIA THE SERVICES AND OUTPUT IS INTENDED TO BE INFORMATIVE AND SHOULD NOT BE CONSTRUED AS ADVICE OR RECOMMENDATIONS. WITHOUT LIMITING THE FOREGOING, WITH RESPECT TO ANY PORTION OF THE SERVICES UTILIZING AI MODELS, DATABOOK DOES NOT GUARANTEE ACCURACY OF AND DATABOOK HEREBY DISCLAIMS ANY WARRANTY RELATING TO ANY OUTPUT GENERATED BY THE AI MODELS. GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING, AND AI, USE OF SERVICES OR FEATURES THAT MAKE USE OF THIRD-PARTY NATURAL LANGUAGE MODELS MAY IN SOME SITUATIONS RESULT IN INCORRECT OUTPUT THAT DOES NOT ACCURATELY REFLECT THE ACTION GENERATED. CUSTOMER USES ANY OUTPUT FROM THE AI MODELS AT ITS OWN RISK.

 

6. Confidential Information.

“Confidential Information” of a party means all oral, written, graphic or machine-readable information exchanged between the parties hereunder and under any non-disclosure agreement previously executed by the parties, which is marked as confidential or proprietary or that ought reasonably to be understood as confidential or proprietary. Notwithstanding anything herein to the contrary the terms and conditions of this Agreement and the technology underlying the Services are Databook’s Confidential Information; Confidential Information excludes information that the recipient already lawfully knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, that was rightfully obtained by recipient from a third party, or as otherwise expressly agreed by the parties in writing. The recipient agrees not to disclose Confidential Information except to affiliates, employees and agents who need to know it and have agreed in writing to keep it confidential. Only those parties may use the Confidential Information, and only to exercise the recipient’s rights and fulfill its obligations under this Agreement, while using at least a reasonable degree of care to protect it. The recipient may also disclose Confidential Information to the extent required by law after providing reasonable notice to the discloser and cooperating to obtain confidential treatment. Unauthorized disclosure of Confidential Information may cause harm not compensable by damages, and the disclosing party may seek injunctive or equitable relief in a court of competent jurisdiction, without posting a bond, to protect its Confidential Information. Each party will return or destroy all Confidential Information upon request and certify to the other party in writing such return or destruction.

 

7. Limitation of Liability

7.1. General Liability Limitation; Consequential Damages Waiver. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS (DEFINED BELOW): (A) EACH OF DATABOOK’S AND CUSTOMERS’ TOTAL AGGREGATE LIABILITY TO THE OTHER ARISING UNDER THIS AGREEMENT (WHETHER SUCH LIABILITY ARISES BY CONTRACT, TORT, STATUTE, OR OTHERWISE), INCLUDING ALL CLAIMS, WILL NOT EXCEED THE AMOUNTS PAID TO DATABOOK UNDER THE APPLICABLE ORDER DOCUMENT OR SOW DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY; AND (B) NEITHER DATABOOK NOR CUSTOMER WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, LOSSES OR, EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.2. Excluded Claims. “EXCLUDED CLAIMS” MEANS CLAIMS ARISING FROM: (A) CUSTOMER’S BREACH OF SECTION 2.2, 2.3, (INCLUDING ALL THIRD-PARTY DATA TERMS), 2.4, 2.5 (INCLUDING ALL PRODUCT SPECIFIC TERMS), AND 4; (B) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6 (CONFIDENTIAL INFORMATION) HEREOF; (C) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 (INDEMNIFICATION) HEREOF; (D) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF EITHER PARTY OR ITS AGENTS; OR (E) ANY OTHER LIABILITY TO THE EXTENT THE SAME MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW; PROVIDED THAT WITH RESPECT TO THIRD-PARTY DATA, DATABOOK’S AGGREGATE LIABILITY, INCLUDING ALL CLAIMS, WILL IN NO EVENT EXCEED THE AMOUNTS ACTUALLY RECOVERED BY DATABOOK RELATING TO THE CLAIM FROM THE APPLICABLE THIRD-PARTY DATA SUPPLIER. NOTWITHSTANDING ANYTHING TO THE CONTRARY, DATABOOK’S TOTAL AGGREGATE LIABILITY, INCLUDING ALL CLAIMS, WITH RESPECT TO ITS INDEMNIFICATION, DATA PROTECTION AND SECURITY, AND CONFIDENTIALITY OBLIGATIONS SHALL NOT EXCEED THE GREATER OF THREE (3) TIMES THE FEES PAID TO DATABOOK UNDER THE APPLICABLE ORDER DOCUMENT OR SOW IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS OR TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000). EACH PARTY ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

 

8. Indemnification.

(a) Databook Infringement Indemnification.

(i) Databook will defend, indemnify, and hold harmless Customer and its affiliates and its and their respective officers, directors. employees, and agents and their respective successors and assigns from and against any and all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees), whether based on contract, tort, equity or otherwise, to the extent arising out of or in connection with a claim, suit or proceeding brought by a third party based upon Databook’s actual or alleged violation of Section 5.2, hereof. The foregoing indemnification obligations shall not apply to actual or alleged violations of Section 5.2 to the extent the infringement or violation of other proprietary right arises from: (A) Customer Data; (B) use of the Services in combination with any software, hardware, network; or system not supplied by Databook where the alleged infringement relates to such combination; (C) any modification or alteration of the Services other than by Databook; (D) Customer’s continued use of the Services after Databook notifies Customer to discontinue use; or (E) Customer’s internal website(s), servers and other equipment and software used in the conduct of Customer’s business.

(ii) If any claim which Databook is obligated to defend or indemnify has occurred, or in Databook’s determination is likely to occur, Databook may, in its sole discretion and at its option and expense (A) obtain for Customer the right to use the Services, (B) substitute a functionality equivalent, non-infringing replacement for such the Services, (C) modify the Services to make it non-infringing and functionally equivalent, or (D) terminate this Agreement and refund to Customer any prepaid amounts for Services not provided.

(b) Customer Indemnification. Customer will defend, indemnify, and hold harmless Databook and its affiliates and its and their respective officers, directors. employees, and agents and their respective successors and assigns from and against any and all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees), whether based on contract, tort, equity or otherwise, to the extent arising out of or in connection with a claim, suit or proceeding brought by a third party based upon any actual or alleged violation of Section 2.2 through 2.5 (including the Third-Party Data Terms and Product Specific Terms).

8.3. Procedure. The indemnified party will provide the indemnifying party with: (a) prompt written notice of any claim for which indemnification is sought (provided that a failure to provide such notice will not relieve a party of its obligations hereunder except to the extent material prejudice results from such failure); (b) sole control over the defense and settlement of the claim (provided that the indemnifying party may not agree to any settlement that imposes any material obligation on the indemnified party or requires the indemnified party to admit any liability, without the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed); and (c) reasonable cooperation, at the indemnifying party’s request and expense, in the defense and settlement of the claim.

 

9. International Trade Compliance

9.1. Each party shall comply with all applicable laws and regulations, including applicable export and re-export control and trade and economic sanctions laws, which include the Export Administration Regulations (EAR) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), and the International Traffic in Arms Regulations maintained by the U.S. State Department (collectively “Export Controls and Sanctions Laws”). Neither party, nor any of its subsidiaries or any person acting on its behalf or owning 50% or more of its equity securities or other equivalent voting interests, is (a) a person on the List of Specially Designated Nationals and Blocked Persons or any other list of Sanctioned Persons administered by OFAC or any other governmental entity, or (b) a national or resident of, or a segment of the government of, any Sanctioned Country or territory for which the United States has embargoed goods or imposed trade sanctions.

9.2. Customer affirms that no Sanctioned Country or Sanctioned Person will be involved in the receipt, use or distribution of Databook’s Products or Services, nor involved in any activities for which Databook Products or Services will be used. Customer further affirms that will not use Databook’s Products or Services in connection with any activity or end use restricted under U.S. Export Control and Sanction Laws. Customer shall indemnify, defend, and hold Databook harmless for any breach in of applicable Export Controls and Sanctions Laws or its obligations pursuant to this Section.

 

10. Dispute Resolution.

Prior to the initiation of any arbitration or litigation under this Agreement, the parties agree to negotiate in good faith for a period of at least thirty (30) days to resolve any dispute, claim, or controversy arising out of or relating to this Agreement. The negotiation period commences upon receipt of a written notice from one party to the other, outlining the nature of the dispute, claim, or controversy. Notwithstanding the foregoing, either party may seek emergency injunctive relief in any court of competent jurisdiction without first engaging in the aforementioned negotiation process. If such negotiation process is unsuccessful in resolving a dispute, any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by mandatory arbitration in Santa Clara County, California before a single arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the award may be entered in any court having competent jurisdiction. This Section shall not preclude either party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

 

11. Publicity.

Except as set forth in this paragraph, neither party may use the other party’s name, logo or marks without such other party’s written pre-approval. Notwithstanding the foregoing, Databook may refer to Customer (by name, logo, or mark) on its customer lists, website, and other marketing materials as a customer of Databook, without written pre-approval.

 

12. Miscellaneous.

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever. Neither party may assign this Agreement without the other party’s prior written consent, except that either party without such consent may assign this Agreement to an affiliate or any other entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of such party’s voting securities or assets. In such cases, the assigning party must notify the other party in writing within 30 days of the assignment.  Non-permitted assignments are void. This Agreement is governed by the laws of the State of California without reference to its principles of conflicts of laws and without regard to the United Nations Convention on the Sale of Goods. Any notice or consent under this Agreement will be in writing to the addresses specified above. If any provision is found to be unenforceable, it (and related provisions) will be interpreted to best accomplish the parties’ intended purpose. In this Agreement, “including” means “including without limitation” (and similar terms will be construed without limitation) and headings are for convenience only and will not affect interpretation. Databook reserves the right to amend this Agreement at any time by posting an amended version on the URL https://databook.com/msa/ and any such amendment will be effective as of the date it is published. By continuing to use the Services following the posting of an amended version, Customer agrees to be bound by any such amendment. Any other amendments to this Agreement must be in writing and signed by an authorized representative of Databook. Waivers must be signed by the waiving party and one waiver will not imply any future waiver. Neither party will be in default or otherwise liable for any delay in or failure of its performance under this Agreement (other than payment of fees due hereunder) if such delay or failure arises by any reason beyond its reasonable control, including any act of God or the common enemy or earthquakes, floods, fires, epidemics, riots, or failures or delays in transportation or communications. This Agreement (including all Order Documents and SOWs and any terms linked through this Agreement) is the parties’ entire agreement regarding its subject matter and supersedes and cancels all previous agreements and communications (written or oral) relating to its subject matter. Notwithstanding any language to the contrary therein, any purchase order issued by Customer shall be deemed a convenient order and payment device only and no terms stated in any such purchase order or in any other such order document shall be incorporated into this Agreement, and all such terms shall be void and of no effect. This Agreement may be signed in counterparts, each of which will be deemed an original and which will together constitute one Agreement. Electronic signatures are valid and binding.  If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired. The parties shall negotiate in good faith to replace the invalid, illegal, or unenforceable provision with a valid, legal, and enforceable provision that reflects the original intent of the parties to the maximum extent permitted by law.