End User License Agreement 09.06.16
BY ACCEPTING AN ORDER FORM OR OTHER AGREEMENT THAT INCORPORATES THIS END USER LICENSE AGREEMENT (THE “EULA”) (THE “ORDERING DOCUMENT”), LICENSEE (AS DEFINED THEREIN) AGREES TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. THE ORDERING DOCUMENT AND EULA TOGETHER CONSTITUTE THE AGREEMENT OF THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.” THE TERMS OF THE ORDERING DOCUMENT SHALL CONTROL OVER ANY CONFLICTING TERMS IN THE EULA.
Licensee and DiscoverOrg hereby agree as follows:
1. SCOPE, GRANT OF LICENSE
1.1 This Agreement governs Licensee’s access to and use of certain Licensed Materials (defined below) made available to Licensee by DiscoverOrg, LLC, a Delaware limited liability company, or any of its subsidiaries, with an office and place of business located at 805 Broadway Street, Suite 900, Vancouver, Washington 98660 (“DiscoverOrg”) and Licensee’s access to and use of any DiscoverOrg Technology.
1.2 The “Licensed Materials” consist of all electronic information as described in any Ordering Document executed between the parties, which shall be published or otherwise made available by DiscoverOrg to Licensee under this Agreement. The “DiscoverOrg Technology” consists of software, websites, networks, and equipment made available or used by DiscoverOrg pursuant to this Agreement to facilitate Licensee’s access to and/or use of the Licensed Materials, including but not limited to DiscoverOrg’s online graphical user interface available at go.discoverdyb.com and DiscoverOrg’s Integration Tools (collectively, the “DiscoverOrg Technology”). DiscoverOrg technology does not include and specifically excludes Third Party Applications.
1.3 Subject to the terms and conditions herein, DiscoverOrg hereby grants to Licensee a non-exclusive license to access and use the Licensed Materials and the DiscoverOrg Technology, and to provide the Licensed Materials and DiscoverOrg Technology to Authorized Users in accordance with this Agreement, during the Term of this Agreement.
1.4 Third Party Applications. “Third Party Applications” means computer software programs and other technology that are provided or made available to Licensee or Authorized Users by third parties, including those with which the DiscoverOrg Technology may interoperate. Where agreed between the parties, DiscoverOrg may provide certain Integration Tools, which consist of DiscoverOrg Technology designed to allow Licensee to use DiscoverOrg Technology and the Licensed Materials in such a way as to interoperate with a Third Party Application. DiscoverOrg is not responsible for and does not endorse any Third Party Applications or websites linked to by DiscoverOrg Technology.
2. DELIVERY/ACCESS OF LICENSED MATERIALS TO LICENSEE
DiscoverOrg will make the Licensed Materials available to the Licensee in digital form via password-protected online access accessible by Licensee with usernames and passwords provided to Licensee by DiscoverOrg, or as otherwise mutually agreed by the parties.
3. FEES AND TAXES
Licensee shall pay all fees stated in the Ordering Document (the “Subscription Fee”). Failure to pay the Subscription Fee when due may result in, in DiscoverOrg’s sole discretion and without notice to Licensee, (i) restriction or suspension of Licensee’s online access to the Licensed Materials until all past-due payments are made or (ii) termination of this Agreement. Restriction or suspension of Licensee’s online access to the Licensed Materials during period of non-payment shall have no effect on the Term of this Agreement nor on Licensee’s obligation to pay the Subscription Fee. This is not intended to be DiscoverOrg’s exclusive remedy, and DiscoverOrg retains all rights and remedies it may have at law or in equity.
Licensee is responsible for any applicable taxes, including without limitation, any sales, use, levies, duties, or any value added or similar taxes payable with respect to Licensee’s subscription and assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise in the Ordering Document, all fees, rates, and estimates exclude sales taxes. If DiscoverOrg believes any such tax applies to Licensee’s subscription and DiscoverOrg has a duty to collect and remit such tax, the same may be set forth on an invoice to Licensee unless Licensee provides DiscoverOrg with a valid tax exemption certificate, direct pay permit, or multi-state use certificate, and shall be paid by Licensee immediately or as provided in such invoice. Licensee shall indemnify, defend, and hold harmless DiscoverOrg and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns against any and all actual or threatened claims, actions, or proceedings of any taxing authority arising from or related to the failure to pay taxes owed by Licensee, except to the extent directly caused by a failure of DiscoverOrg to remit amounts collected for such purpose from Licensee. DiscoverOrg is solely responsible for taxes based upon DiscoverOrg’s net income, assets, payroll, property, and employees.
4. AUTHORIZED USE OF LICENSED MATERIALS AND DISCOVERORG TECHNOLOGY
4.1 Authorized User. An “Authorized User” is a natural person who is an employee of Licensee and who has been identified and designated in writing by Licensee and accepted by DiscoverOrg, or with the express permission of DiscoverOrg, a natural person who is not an employee of Licensee but who is in a confidential relationship with Licensee. In the event that any Authorized User’s employment or other confidential relationship upon which his or her Authorized User status is conditioned under this section terminates, such person’s authorization to access the Licensed Materials and/or any DiscoverOrg Technology shall be automatically rescinded without any further action by DiscoverOrg. In the event of a termination as described in the previous sentence, Licensee shall promptly notify DiscoverOrg so that such person’s login credentials can be disabled. Licensee may reassign the Authorized User designation at any time subject to the foregoing qualification requirements. Authorized User licenses that remain inactive for more than 90 days may be deemed expired. Each Authorized User will be provided a unique username and password. Such usernames and passwords may not be shared, and may not under any circumstances be used by anyone who is not an Authorized User to gain access to the Licensed Materials. In the event that Authorized User login credentials are shared with non-Authorized Users, Licensee shall pay additional Authorized User fees as provided in the Ordering Document, due upon Licensee’s receipt of invoice. Licensee shall be responsible for compliance with the terms of this Agreement by all Authorized Users, including without limitation the restrictions on use and transfer of the Licensed Materials set forth herein.
4.2 Authorized Uses. Licensee shall not access or use Licensed Materials for any purpose except the sales, marketing, recruiting, or business development activities of Licensee. Licensee shall not access or use the Licensed Materials for the benefit of or on behalf of any person or entity except Licensee. Authorized uses shall be limited to the following: (i) to view the Licensed Materials; (ii) to communicate with a person identified in the Licensed Materials (each such person, a “Licensed Materials Contact”), and (iii) to download and print selected information from the Licensed Materials. Licensee shall not permit anyone who is not an Authorized User, to use any username or password or otherwise access or use the Licensed Materials. Licensee shall not redistribute, sublicense, transfer, sell, offer for sale, or disclose any of the Licensed Materials to any third party. Licensee shall not incorporate any of the Licensed Materials into Licensee’s own products or services. Upon expiration or termination of this Agreement, Licensee shall cease accessing the Licensed Materials or using the Licensed Materials in any way. Licensee shall not remove, obscure, or modify any notice of copyright or other notice included in the Licensed Materials. Licensee is solely responsible for any communications between Licensee or any Authorized User and any Licensed Materials Contact. Licensee shall ensure that no Authorized User takes any action inconsistent with Licensee’s obligations under this Agreement.
4.3 Use of DiscoverOrg Technology. Licensee is permitted to use the DiscoverOrg Technology solely for the purpose of accessing and using the Licensed Materials as permitted by this Agreement. Licensee will not (i) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of the DiscoverOrg Technology; (ii) reproduce, modify, create, or prepare derivative works of any of the DiscoverOrg Technology or related documentation; (iii) distribute or display any of the DiscoverOrg Technology or related documentation other than to Authorized Users; (iv) share, sell, rent, or lease or otherwise distribute access to the DiscoverOrg Technology, or use the DiscoverOrg Technology to operate any timesharing, service bureau, or similar business; (v) create any security interest in the DiscoverOrg Technology; (vi) alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within or on the DiscoverOrg Technology or related documentation; or (vii) disclose the results of any DiscoverOrg Technology or program benchmark tests to any third parties without DiscoverOrg’s prior written consent. Licensee may use DiscoverOrg Technology only in accordance with this Agreement and not for the benefit of any third party unless expressly permitted herein. By using DiscoverOrg Technology to integrate with any email marketing software, Licensee consents to DiscoverOrg’s use, on an anonymous basis, of Licensee’s information regarding invalid email addresses contained therein (i.e. bounces), and to the extent applicable grants DiscoverOrg a nonexclusive, perpetual, irrevocable, royalty free, worldwide license, with rights to transfer, sublicense, sell, use, reproduce, display, and make derivative works of such information.
4.4 Identification of Licensed Materials. Licensee shall not integrate Licensed Materials into any CRM system unless such system is available to Authorized Users only. Any Licensed Materials that are downloaded and/or integrated into any CRM system must be maintained with identifying information indicating that such materials originated with DiscoverOrg, for example, by maintaining a leadsource of “DiscoverOrg.”
5. DISCOVERORG’S PERFORMANCE OBLIGATIONS
5.1 Access to Licensed Materials. DiscoverOrg will provide Licensee with access to DiscoverOrg’s Licensed Materials for the products and/or services specified in the Ordering Document.
5.2 Quality Guarantee. If more than 5% of the Licensed Materials Contacts are no longer employed by their listed companies, upon notice from the Licensee, DiscoverOrg shall have 30 days to correct the Licensed Material in order to make it at least 95% accurate. If DiscoverOrg is unable to achieve 95% accuracy within 30 days, upon Licensee’s request, Licensee may terminate the Agreement and shall be entitled to a pro-rated refund of any pre-paid fees as of the date of the original notice.
5.3 Support. DiscoverOrg will offer activation or installation support, including assisting with integration with Licensee’s internal CRM systems. DiscoverOrg will offer reasonable levels of continuing support to assist Licensee and Authorized Users in accessing the Licensed Materials. DiscoverOrg will make its personnel available by email, online chat, phone, or fax for feedback, problem-solving, or general questions between the hours of 7:00 a.m. and 4:00 p.m. Pacific Time.
6. LICENSEE PERFORMANCE OBLIGATIONS
6.1 Licensee represents, warrants, and covenants that it will not, in connection with its use and access of the Licensed Materials: (i) commit or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate law; (ii) violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity or any other proprietary right; (iii) use the Licensed Materials, or any part thereof, to harass or harm any person in any way; or (iv) disparage, defame, libel or make untrue or malicious statements about DiscoverOrg.
6.2 Identification of Authorized Users. Licensee shall identify all Authorized Users to DiscoverOrg by providing names, work email addresses, and telephone numbers.
6.3 Provision of Notice of License Terms to Authorized Users. Licensee shall provide Authorized Users with notice of the terms and conditions of the EULA including, in particular, its limitations on access to or use of the Licensed Materials.
6.4 Protection from Unauthorized Use. Licensee shall make commercially reasonable best efforts to prevent unauthorized access to or use of the Licensed Materials. In the event of any unauthorized use of or access to the Licensed Materials, DiscoverOrg may suspend or terminate access to the Licensed Materials, provided that DiscoverOrg shall first provide reasonable notice to Licensee and cooperate with the Licensee to avoid recurrence of any unauthorized use or access to the Licensed Materials.
6.5 Ownership of the Licensed Materials and Intellectual Property. Licensee acknowledges and agrees that, as between Licensee and DiscoverOrg, the Licensed Materials, the DiscoverOrg Technology, and any related documentation (including, without limitation, the content, layout, functions, design, appearance, trademarks, service marks, copyrights, patents, and other intellectual property comprising the Licensed Materials or DiscoverOrg Technology) are the proprietary intellectual property of DiscoverOrg, whether or not such Licensed Materials are trademarked, copyrighted, or patented. Licensee further agrees that the original and any copies of the Licensed Materials are and shall at all times be the sole and exclusive property of DiscoverOrg and Licensee agrees that Licensee will take no action in contravention of this fact. Licensee acknowledges and agrees that this Agreement does not transfer any ownership, right, title, or interest in the Licensed Materials or DiscoverOrg Technology or any part thereof beyond the license provided hereunder, and Licensee expressly disclaims and waives any and all claims to any ownership interest in any such information or materials. This includes, without limitation, any Licensed Materials that Licensee downloads, prints, saves, or incorporates into other materials. Licensee further acknowledges and agrees that the Licensed Materials, in whole or in part, are unique, special, and valuable.
7. TERM AND TERMINATION
7.1 Term. The Initial Term of this Agreement is specified in the Ordering Document (and, together with all periods of extension, the “Term”). On the last day of the Term, the Term will extend for a successive period equal to the length of the Initial Term, unless either party notifies the other in writing at least sixty (60) days prior to the end of the then-current Term of its intent that the Term not so extend. In the event that the Term is so extended, the Subscription Fee for the period of such extension shall equal the Subscription Fee applicable to the period of equal length immediately preceding such period such extension, plus (1) 10% of such fee and (2) any applied discount.
7.2 Termination. Either party may terminate this Agreement immediately, without further obligation to the other party, in the event of a material breach of this Agreement by the other party that is not remedied within twenty-one (21) days after the breaching party’s receipt of written notice of such breach. Upon expiration or termination of this Agreement, Licensee acknowledges and agrees that Licensee’s access to the Licensed Materials will be automatically terminated, all passwords and individual accounts will be removed, and all information that has been uploaded into DiscoverOrg’s systems by Licensee may be destroyed. Download capability will be disabled 30 days prior to the end of the Term. Upon expiration or termination of this Agreement, Licensee agrees to destroy any and all copies of Licensed Materials and any information it has obtained from the Licensed Materials, whether in hard copy or electronic form.
Licensee hereby authorizes DiscoverOrg to use Licensee’s name and logo for its marketing efforts unless and until such authorization is revoked in writing.
9.1 “Confidential Information” of a party includes without limitation such party’s: inventions, discoveries, improvements and copyrightable material not yet patented, published, or copyrighted; special processes and methods, whether for production purposes or otherwise, and special apparatus and equipment not generally available or known to the public; current engineering research, development, design projects, research and development data, technical specifications, plans, drawings and sketches; business information such as product costs, vendor, and customer lists, lists of approved components, and sources, price lists, production schedules, business plans, and sales and profit or loss information not yet announced or not disclosed in any other way to the public; and any other information or knowledge not generally available to the public. All business terms of this Agreement, including but not limited to pricing and access, shall be considered Confidential Information of each party, respectively.
9.2 Each party shall keep in confidence all Confidential Information of the other party obtained prior to or during the Term of this Agreement. Without the prior written consent of the other party, neither party shall: disclose or make available such Confidential Information to any person, firm, association, or corporation, or use, directly or indirectly, except for the performance of this Agreement, unless the Confidential Information (a) was known to such party (as evidenced by its written record) or was in the public domain prior to the time obtained by such party; (b) was lawfully disclosed to such party by a third party who did not receive it directly or indirectly from such party and who is under no obligation of secrecy with respect to the Confidential Information; or (c) subsequently becomes generally available to the public by publication or otherwise through no fault of such party.
9.3 The parties shall take all necessary and appropriate steps in order to ensure that its employees and subcontractors adhere to the provisions of this section.
9.4 All Confidential Information shall be returned to the disclosing party or destroyed upon the earlier of: (a) the termination of this Agreement; or (b) receipt by the receiving party of a written request from the disclosing party.
Either party hereto may assign this Agreement to a successor-in-interest pursuant to an acquisition of such party (whether by merger, stock sale, or asset sale) without the other party’s consent, provided however that (1) Licensee’s assignment hereof shall be effective only after fourteen (14) days’ written notice to DiscoverOrg, and (2) Licensee may not assign this agreement to any competitor of DiscoverOrg without DiscoverOrg’s express written consent. No rights or obligations under this Agreement may be assigned or delegated except as provided in this Section without the prior written consent of the other party, and any assignment or delegation in violation of this section shall be void.
Licensee shall provide an email address for notices under this Agreement. All notices or other communications permitted or required to be given hereunder shall be sent by electronic mail to the email address provided by the other party for such purpose and shall be deemed given when sent. Notices to DiscoverOrg shall be sent to [email protected] In the event that Licensee fails to provide an email address for notices, DiscoverOrg may provide notices hereunder by any means reasonably calculated to provide Licensee with actual notice thereof.
12. GOVERNING LAW
This Agreement shall be construed in accordance with and governed for all purposes by the laws of the State of Washington without regard to choice of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
13. ATTORNEY FEES, DISPUTE RESOLUTION, CLASS ACTION WAIVER
13.1 Attorney Fees. In the event of any dispute arising under this agreement, the prevailing party shall be entitled to recover its reasonable costs and expenses actually incurred in endeavoring to enforce the terms of this Agreement, including reasonable attorney fees.
13.2 Mandatory Arbitration. Except for Litigation Claims (defined below), any dispute, claim, or controversy arising out of or relating to this Agreement, including without limitation (1) claims relating to the breach, termination, enforcement, interpretation or validity thereof, (2) claims alleging tortious conduct (including negligence) in connection with the negotiation, execution, or performance thereof, or (3) the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. The arbitration shall be heard by a single arbitrator and shall be conducted in Seattle, Washington. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall have the power to award any remedy provided under applicable law, except that the arbitrator shall have no power to award: (1) punitive, exemplary, or multiple damages under any legal theory; (2) mandatory or prohibitory injunctive relief, except for temporary relief in aid of the arbitration or to secure the payment of an award; or (3) any damages in excess of the limits set forth in this section or Section 16 (Limitation on Liability) of this Agreement.
13.3 Class Action Waiver. No party shall commence or seek to prosecute or defend any dispute, controversy, or claim based on any legal theory arising out of or relating to this Agreement, or the breach thereof, other than on an individual, non-class, non-collective action basis. No party shall seek to prosecute or defend any dispute, controversy, or claim arising out of relating to this Agreement, or the breach thereof, in a representative or private attorney general capacity. The arbitrator shall not have the power to consolidate any arbitration under this Agreement with any other arbitration, absent agreement of all parties involved, or otherwise to deal with any matter on a non-individual, class, collective, representative, or private attorney general basis.
13.4 Litigation Claims. The following claims (“Litigation Claims”) shall be litigated and not arbitrated: (a) claims against a party to this Agreement under the provisions involving claims by third parties; (b) claims by a party for the unauthorized use, or the misuse, by the other party of the first party’s intellectual property or confidential, proprietary, or sensitive information; (c) claims by DiscoverOrg to collect Subscription Fees; or (d) claims for a provisional remedy (such as a temporary restraining order or preliminary injunction) in aid of an arbitration under this Agreement. The Litigation Claims are not subject to arbitration and are expressly excluded by the parties from arbitration.
All monetary amounts specified in this Agreement are in United States dollars unless otherwise expressly stated.
Licensee agrees to indemnify, defend, and hold harmless DiscoverOrg and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns from and against any and all actual or threatened claims of third parties arising out of or in connection with (1) Licensee’s access or use of the Licensed Materials in violation of any law, (2) Licensee’s violation of any provision of this Agreement, (3) Licensee’s sending of any information, messages, or materials to any Licensed Materials contact (including, but not limited to, through e-mail, mail, or fax) in violation of any law or the rights of any third party, or (4) the use of any Licensed Materials or DiscoverOrg Technology by any third party to whom Licensee has granted access (including access obtained through use of the usernames and passwords assigned to Licensee and its personnel).
16. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR INSTANCES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, EXEMPLARY, MULTIPLE, INDIRECT, CONSEQUENTIAL, SPECIAL, OR LOST PROFITS DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER FORESEEABLE OR UNFORSEEABLE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY UNCURED BREACH BY DISCOVERORG OF ITS OBLIGATIONS UNDER THIS AGREEMENT IS TERMINATION BY WRITTEN NOTICE TO DISCOVERORG, AND REFUND OF A PRORATED PORTION OF THE LICENSE FEES THAT LICENSEE HAS PAID. DISCOVERORG’S MAXIMUM LIABILITY TO LICENSEE SHALL BE THE AMOUNTS ACTUALLY PAID TO DISCOVERORG BY LICENSEE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LICENSEE’S CAUSE OF ACTION.
EXCEPT FOR ANY EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS EULA, THE LICENSED MATERIALS AND DISCOVERORG TECHNOLOGY ARE PROVIDED “AS IS” AND NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER AND EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.
18. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement of the parties and supersedes all prior communications, understandings, and agreements relating to the subject matter hereof, whether oral or written. Any un-expired subscription set forth in any Ordering Document or agreement between the Parties for access to DiscoverOrg’s database is incorporated into this Agreement and governed by this EULA. In the event of any conflict, this EULA shall govern except as provided herein.
No modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of DiscoverOrg and Licensee.