DATA LICENSE TERMS AND CONDITIONS
PLEASE READ THE FOLLOWING DATA LICENSE TERMS AND CONDITIONS (THE "TERMS"), WHICH ALONG WITH ANY SUPPLEMENTAL TERMS THAT MAY BE PRESENTED TO YOU FOR YOUR REVIEW AND ACCEPTANCE (COLLECTIVELY, THIS "AGREEMENT") CONSTITUTE THE AGREEMENT BETWEEN THE ENTITY SUBSCRIBING TO USE THE SERVICES ("YOU" OR "CUSTOMER"), AND SCOPE3 PBC ("SCOPE3"). THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE SERVICES BETWEEN THE PARTIES AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES. EACH OF CUSTOMER AND SCOPE3 ARE INDIVIDUALLY REFERRED TO HEREIN AS A "PARTY" AND TOGETHER AS THE "PARTIES".
BY CHECKING A BOX AGREEING TO THE TERMS, THE PERSON ACCEPTING THE TERMS ON BEHALF OF CUSTOMER REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND TO BIND CUSTOMER. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SERVICES.
Scope3 has developed a proprietary emissions model that assists with, among other things, producing carbon emissions estimates for the media and advertising industry (the "Emissions Model"). Customer wishes to access certain data generated or otherwise informed by the Emissions Model (the "Licensed Data") through Scope3's online platform (the "Platform", and together with the Emissions Model, the Licensed Data, the "Scope3 IP"). Customer will only access the Platform to obtain the Licensed Data in the manner intended and permitted by Scope3.
Subject to the terms and conditions of this Agreement, Scope3 hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license and right, during the Term (as defined below), to use the Licensed Data for its internal business purposes (the "Permitted Use").
Customer will not (and will not allow any third party to): (a) install, download, distribute or otherwise use the Scope3 IP other than as expressly set forth in this Agreement; (b) use the Scope3 IP for any illegal or harmful purposes, including use of the Scope3 IP in a manner that disparages or otherwise harms the reputation or business of Scope3; (c) use the Scope3 IP in any manner that competes with Scope3 or in connection with developing any product or service that competes with Scope3's products or services; (d) use the Scope3 IP in any manner that violates the rights of any person, including but not limited to intellectual property rights, rights of privacy or rights of publicity; (e) create any derivative works containing or utilizing any of the Licensed Data; (f) publish, export, post or distribute any of the Licensed Data, or place any of the Licensed Data onto a server so that it is accessible via a public network such as the Internet; (g) scrape the Platform or otherwise use electronic means to locate, sort and/or extract Licensed Data (excluding any features of the Platform itself that Scope3 makes available); (h) make any marketing claims based on the Licensed Data; (i) disclose or otherwise provide any of Customer's Platform credentials to any third party or (j) copy, rent, lease, sell, resell, sublicense, disassemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), modify or alter any part of the Scope3 IP. Customer acknowledges and agrees that this Agreement in no way will be construed to provide to Customer, or any third party, any express or implied right or license to access, use, copy or otherwise exploit the Scope3 IP or any portion thereof (including any intellectual property embodied therein), except as expressly set forth in Section 1.2.
The Parties acknowledge and agree that Scope3 will exclusively own the Scope3 IP. Except for the rights expressly granted hereunder to the Licensed Data, all rights, title and interests in and to the Scope3 IP are retained by Scope3.
(a) Customer acknowledges that it may receive certain confidential and/or proprietary information of Scope3 (the "Confidential Information"), and such Confidential Information constitutes valuable trade secrets and proprietary information of Scope3. For the avoidance of doubt, the Licensed Data is Confidential Information. Customer agrees that it will use the Confidential Information solely to perform its obligations or exercise its rights under this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without Scope3's prior written consent, except as otherwise permitted hereunder. Notwithstanding any provision of this Agreement, Customer may disclose the Confidential Information of Scope3, in whole or in part, (i) to its employees who have a need to know and are legally bound by a written agreement to keep such information confidential in a manner consistent with those of this Agreement; and (ii) as required by law (in which case Customer will provide Scope3 with prior written notification thereof, will provide Scope3 with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Customer agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 2.2, Scope3 will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Customer will promptly notify Scope3 in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. Upon the expiration or termination of this Agreement, Customer agrees to promptly return to Scope3 or destroy all Confidential Information of Scope3 (at Scope3's election) that is in the possession of Customer.
Customer represents and warrants to Scope3 that (a) Customer has the required power and authority to enter into this Agreement, (b) the performance of this Agreement by Customer does not and will not violate any other agreement to which it is a party; (c) this Agreement constitutes a legal, valid and binding obligation of the Parties; (d) Customer will perform its obligations under this Agreement in accordance with all applicable laws, rules and regulations; and (e) Customer has all rights, permissions and consents necessary to grant to Scope3 the rights and licenses granted to Scope3 herein.
THE SERVICES AND DATA PROVIDED BY SCOPE3 ARE PROVIDED ON AN "AS-IS" BASIS AND SCOPE3 EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL SCOPE3 HAVE ANY LIABILITY ARISING FROM THE UNAUTHORIZED USE OF THE SCOPE3 IP, OR INFORMATION DERIVED THEREFROM. CUSTOMER ACKNOWLEDGES THAT SCOPE3 DOES NOT WARRANT THAT THE LICENSED DATA WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR FREE FASHION AT ALL TIMES. Scope3 does not warrant the accuracy or completeness of the LICENSED Data, and Customer agrees that Scope3 will not be liable to Customer or any third party for any adverse consequences arising as a result of the inaccuracy or incompleteness OF the LICENSED Data. Customer further agrees that Scope3 will not be liable to Customer or any third party for any decisions made in reliance on the LICENSED Data.
Customer will indemnify, defend and hold harmless Scope3 and its affiliates and its and their respective employees, officers and agents against any all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney's fees) arising from claims directly or indirectly brought against Scope3 by any third party arising from (a) Customer's use of the Licensed Data or (b) Customer's breach of any provision of this Agreement, provided that (i) Scope3 will promptly notify Customer of such claim, (ii) Customer will have the sole and exclusive authority to defend and/or settle any such claim at its own expense (with Scope3 having the right to participate in the defense with counsel of its own choosing, at its own expense) and (iii) Scope3 reasonably cooperates with Customer in connection therewith. Notwithstanding anything to the contrary herein, Customer will not settle any such indemnifiable claim without Scope3's prior written consent, not to be unreasonably withheld, conditioned or delayed.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL SCOPE3 BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SCOPE3 BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF $100. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
This Agreement will commence as of the date Customer agrees to the Terms and will continue until terminated in accordance with this Agreement (the "Term").
Either party may terminate this Agreement for any reason upon written notice to the other Party. Scope3 may provide such notice via the Platform user interface, a pop-up notice, email, or through other reasonable means.
Upon termination or expiration of this Agreement, all rights granted hereunder will immediately terminate unless otherwise expressly contemplated herein and Customer will immediately cease use of the Platform and Licensed Data and will return or destroy all copies of the Licensed Data. Sections 1.3, 1.4 and 2 through 7 (inclusive) will survive the termination or expiration of this Agreement for any reason whatsoever.
Customer will not transfer, either directly or indirectly, any of the Scope3 IP, either in whole or in part, to any destination subject to export restrictions under United States law, unless prior written authorization is obtained from the appropriate United States agency and will otherwise comply with all other applicable import and export laws, rules and regulations.
Customer may not assign this Agreement without the prior written consent of Scope3. Any attempt by Customer to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing will be null and void.
Scope3 reserves the right in its sole discretion to change or modify this Agreement at any time. If Scope 3 makes any such changes or modifications it will provide notice thereof to Customer, which notice (for the avoidance of doubt) may be provided via the Platform user interface, a pop-up notice, email, or through other reasonable means. Customer's use of any the Platform and/or Licensed Data after such notification constitutes Customer's acceptance of the new Agreement. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver. Any such waiver will be narrowly construed to apply only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
Nothing in this Agreement will be construed to place the Parties hereto in an agency, employment, franchise, joint venture, or partnership relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties. Neither Party will represent to the contrary, either expressly, implicitly or otherwise.
In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable. If any provision or part of this Agreement will, to any extent, be or become invalid, illegal or unenforceable, the remainder of this Agreement will continue in effect, and every other provision of this Agreement will remain valid and enforceable to the full extent permitted by applicable law. In such event, the invalid or unenforceable provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect.
All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby will be governed by and construed in accordance with the laws of the State of New York without regard to its rules of conflict of laws. Each of the Parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of New York and of the United States of America located in New York, New York (the "New York Courts") for any litigation among the Parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the New York Courts and agrees not to plead or claim in any New York Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the New York Courts.
This Agreement constitutes the entire agreement between the Parties. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. This Agreement may not be modified or waived, in whole or part, except in writing and signed by an officer or duly authorized representative of both Parties.