General PatSnap Services Terms and Conditions
v.1 1st August 2019
These General PatSnap Services Terms and Conditions (“Agreement”) govern your acquisition and use of PatSnap’s Products and Services. By executing an Order Confirmation Form that references this Agreement, you (hereafter “Customer” or “you”) agree to the terms of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you must not sign an Order Confirmation Form and may not use any PatSnap Products and Services. This Agreement is effective as of the Effective Date.
Customer and PatSnap (UK) Limited (“PatSnap”) hereby agree as follows:
1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the Customer entity signing this Agreement. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 “API” means the PatSnap application programming interface that allows other software or hardware devices to interface with the Platform. The API also includes any accompanying documentation and any updates to the API made available by PatSnap in its sole discretion from time to time.
1.3 “Authorised User” means individuals who are authorized by Customer to use the Service, for whom a subscription to the Service has been procured (up to the agreed number set out in an Order Confirmation Form) and who at all times shall be Customer’s employees, officers, consultants, authorised contractors with which Customer does business or employees, officers, consultants, or authorised contractors of a Customer Affiliate.
1.4 “Data Controller” has the same meaning as set out in the EU General Data Protection Regulation (“GDPR”).
1.5 “Data Processor” has the same meaning as set out in the GDPR.
1.6 “Data Subject” has the same meaning as set out in the GDPR.
1.7 “Documentation” means PatSnap’s user guides and other end user documentation for the Service available on the online help feature of the Service, as may be updated by PatSnap from time to time including without limitation the materials available at https://help.patsnap.com/hc/en-us.
1.8 “Free Trial Services” means any PatSnap service or functionality that may be made available by PatSnap to Customer to try at Customer’s option, at no additional charge, and which is clearly designated as “beta,” “trial,” “non-GA,” “pilot,” “developer preview,” “non-production,” “free trial,” “evaluation,” or by a similar designation.
1.9 “Order Confirmation Form” means the ordering document that specifies the Products and Services, and/or Professional Services purchased by Customer under this Agreement that is entered into by Customer (or any Affiliate) and PatSnap. Order Confirmation Forms shall be subject solely to and incorporate by reference the terms of this Agreement. By entering into an Order Confirmation Form, an Affiliate agrees to be bound by the terms of this Agreement.
1.10 “Personal Data” has the same meaning as set out in the GDPR;
1.11 “Products and Services” means the Subscription Services and the API Service (as applicable).
1.12 “Professional Services” means Enablement Services, Education Services and/ or Research Services provided by PatSnap in connection with the Subscription Service, as may be described more fully in an Order Confirmation Form or Statement of Work (as applicable), where more specifically, Enablement Services means ad hoc services which are provided by PatSnap on an hourly basis and as are set out in an Order Confirmation Form; Education Services means services which are provided by PatSnap on an hourly basis, and are as are set out in an Order Confirmation Form; and Research Services are services where PatSnap conducts specific research in accordance with Customer requirements as set out in a Statement of Work.
1.1. “Services Data” means all research, reports and/or other search data created in and downloaded from the Products and Services by Customer.
1.2 “Statement of Work” means a document that describes Professional Services purchased by Customer under this Agreement. Each Statement of Work shall incorporate this Agreement by reference.
1.3 “Subscription Services” means the services purchased by Customer and provided by PatSnap, as specified on an Order Confirmation Form. “Subscription Services” excludes Professional Services, Free Trial Services and the API Service.
1.4 “Term” has the meaning set forth in Section 1.1.
2. Free Trial Services.
2.1 If Customer registers for a Free Trial Service, PatSnap will make such Free Trial Service available to Customer on a trial basis, free of charge, until the earlier of (a) the end of the free trial period for which Customer was authorised to use the applicable Free Trial Service(s), or (b) the start date of any Service purchased by Customer for such Service. Notwithstanding anything to the contrary in this Agreement, during the free trial, the Free Trial Service is provided “as-is” without any representation or warranty. For a Free Trial Service of API services, the terms set out in Schedule 1 shall also apply.
3. PatSnap’s Obligations.
3.1 PatSnap shall make the Products and Services available to Customer pursuant to this Agreement and all Order Confirmation Forms during the Term, and grants to Customer a limited, non-sublicensable, non-exclusive, non-transferable right during the Term to allow its Authorised Users to access and use the Products and Services and the Documentation in accordance with the terms of this Agreement, solely for Customer’s business purposes. During the Term, the functionality of the Products and Services will not materially decrease. Customer agrees that its purchase of the Products and Services or the Professional Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by PatSnap with respect to future functionality or features.
3.2 Personal Data.
3.1.1 Unless otherwise defined, terms in this clause shall have the same meanings set out in the GDPR and/or any applicable data protection laws, as amended from time to time.
3.1.2 If PatSnap processes any Personal Data on behalf of Customer when performing its obligations under this Agreement, the parties agree that Customer shall be the Data Controller and the PatSnap shall be the Data Processor.
3.1.3 Customer acknowledges and agrees that Personal Data may be transferred or stored outside the EEA or the country where Customer and the Authorised Users are located in order to provide the Products and Services as set out in this Agreement.
3.1.4 Customer shall ensure they have all necessary rights to transfer the relevant Personal Data to PatSnap in order that PatSnap may lawfully use, process and transfer the Personal Data for the purposes of providing the Products and Services in accordance with this Agreement.
3.1.5 Where PatSnap processes Personal Data, PatSnap shall act only on lawful instructions reasonably given by Customer.
3.1.6 Each party has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of personal data and against accident loss or destruction of, or damage to, personal data.
4. Customer’s Obligations.
4.1 Customer is responsible for all activities conducted under its and its Authorised User’ logins on the Service. Customer shall use the Products and Services in compliance with applicable law and shall not: (i) resell, sub-licence, rent, sell, lease, pledge, assign, or otherwise transfer, or encumber rights to the Products and Services, or any part thereof, or make it available to anyone other than its Authorised User; (ii) send or store infringing or unlawful material in connection with the Products and Services; (iii) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs to the Products and Services; (iv) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Service or the data contained therein; (v) modify, disassemble, reverse engineer, copy or create derivative works based on the Service, or any portion thereof; (vi) access the Service for the purpose of building a competitive product or service or copying its features or user interface; (vii) delete, alter, add to or fail to reproduce in and on the Service the name of PatSnap and any copyright or other notices appearing in or on the Service or which may be required by PatSnap at any time; or (viii) use any data accessed via the Products and Services for illegal purposes, including to knowingly breach intellectual property of a third party.
4.2 Use of Services Data. Notwithstanding clause 4.1, Customer and Authorised Users may: (i) access and use Services Data in hard copy, electronic data storage or other electronic form and regardless of the means of access or delivery; (ii) download, print and/or store copies of the Services Data; (iii) use extracts in presentations, speeches or marketing material or other documentation, provided always that PatSnap’s copyright notice, trade name(s), trademark(s) and other intellectual property rights shall be displayed prominently in such distribution of the Services Data; and (iv) use the Services Data for internal business purposes, which shall include distribution to Customer employees, officers, and partners.
4.3 Authorised Users. Authorised Users shall be a named individual with a unique email address. Customer shall ensure that an Authorised User’s log in credentials for the Products and Services are not shared with any third party, including any of Customer’s other employees, officers, consultants, authorised contractors with which Customer does business or employees, officers, consultants, or authorised contractors of a Customer Affiliate.
4.4 Suspension of Products and Services. Any use of the Products and Services in breach of this Agreement, Documentation, an Order Confirmation Form, or a Statement of Work, by Customer or an Authorised User that in PatSnap’s judgment threatens the security, integrity or availability of the Products and Services, may result in PatSnap’s immediate suspension of the Products and Services; however, PatSnap will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to such suspension.
4.5 Customer shall be solely responsible for: (i) ensuring that its computer system meets all relevant technical specifications necessary to receive the Products and Services; and (ii) all problems, conditions, delays and/or failures arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
4.6 API services. Where Customer is using the API services, Customer will also comply with the provisions of the API Specific Terms and Conditions set out in Schedule 1.
4.7 Professional Services. Customer and PatSnap may enter into Statements of Work that set out the specific Professional Services to be performed by PatSnap. If applicable, while on Customer premises for Professional Services, PatSnap personnel shall comply with reasonable Customer rules and regulations regarding safety, security, and conduct made known to PatSnap, and will at Customer’s request promptly remove from the project any PatSnap personnel not following such rules and regulations.
4.8 Customer Affiliates. Customer Affiliates may purchase and use the Products and Services and Professional Services subject to the terms of this Agreement by executing Order Forms or Statements of Work hereunder that incorporate this Agreement by reference, and in each such case, all references in this Agreement to Customer shall be deemed to refer to such Customer Affiliate for purposes of such Order Form or Statements of Work.
5.1 Security. PatSnap shall: (i) maintain appropriate administrative, physical, and technical safeguards to protect the security and integrity of the Products and Services, Services Data and Personal Data; (ii) protect the confidentiality of Services Data and Personal Data; and (iii) access and use Services Data and Personal Data solely to perform its obligations in accordance with the terms of this Agreement, and as otherwise expressly permitted in this Agreement (“Security Program”).
6.1 Each party (“Recipient”) may, during the course of its provision and/or use of the Products and Services or provision and/or receipt of Professional Services hereunder, receive, have access to, and acquire knowledge from discussions with the other party (‘Discloser”) which may not be accessible or known to the general public, such as technical and business information concerning hardware, software, designs, specifications, techniques, processes, procedures, research, development, projects, products or services, business plans or opportunities, business strategies, finances, costs, customers, vendors, penetration test results and other security information; defect and support information and metrics; and first and third party audit reports and attestations (“Confidential Information”).
6.2 Confidential Information shall not include, and shall cease to include, as applicable, information or materials that (a) were generally known to the public on the Effective Date; (b) become generally known to the public after the Effective Date, other than as a result of the act or omission of the Recipient; (c) were rightfully known to the Recipient prior to its receipt thereof from the Discloser; (d) are or were disclosed by the Discloser generally without restriction on disclosure; (e) the Recipient lawfully received from a third party without that third party’s breach of agreement or obligation of trust; or (f) are independently developed by the Recipient as shown by documents and other competent evidence in the Recipient’s possession.
6.3 The Recipient shall not: (i) use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement, except with the Discloser’s prior written permission, or (ii) disclose or make the Discloser’s Confidential Information available to any party, except those of its employees, contractors, and agents that have signed an agreement containing disclosure and use provisions substantially similar to those set forth herein and have a “need to know” in order to carry out the purpose of this Agreement.
6.4 Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same or similar manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. If the Recipient is compelled by law to disclose Confidential Information of the Discloser, it shall provide the Discloser with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
6.5 The obligations set forth in Section 3.2 and not this Section 6 apply to Personal Data.
6.6 Equitable Relief. Due to the unique nature of the parties’ Confidential Information disclosed hereunder, there can be no adequate remedy at law for a party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching party. Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it, without the requirement of posting a bond.
7. Ownership, Feedback, and Aggregated Data.
7.1 Personal Data. Customer shall own the Personal Data. Customer grants to PatSnap, and its Affiliates a worldwide, limited-term license to use the Personal Data, as is reasonably necessary for PatSnap to provide the Products and Services in accordance with this Agreement.
7.2 PatSnap Ownership of the Products and Services. Except for the rights expressly granted under this Agreement, PatSnap and its licensors retain all right, title, and interest in and to the Services Data, the Products and Services, Documentation, and the Professional Services, including all related intellectual property rights inherent therein. If Customer purchases Professional Services, PatSnap grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right to use the Professional Services solely for Customer’s use with the Products and Services. No rights are granted to Customer hereunder other than as expressly set out in this Agreement.
7.3 Feedback. PatSnap shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Products and Services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Authorised User relating to the features, functionality or operation of the Products and Services, and/or the Professional Services (“Feedback”). PatSnap shall have no obligation to use Feedback, and Customer shall have no obligation to provide Feedback.
7.4 Statistical Usage Data. PatSnap owns the statistical usage data derived from the operation of the Products and Services, including log data, and the performance results for the Products and Services (“Usage Data”). Nothing herein shall be construed as prohibiting PatSnap from utilizing the Usage Data to optimize and improve the Service or otherwise operate PatSnap’s business. Where Usage Data of Customer is combined with Usage Data of other customers, all Usage Data shall be de-identified and presented in the aggregate so that such Usage Data will not disclose the identity of Customer or any Authorised User(s) to any third party.
8. Fee, Expenses, and Taxes.
8.1 Fee. Customer shall pay PatSnap the Fee set out in the applicable Order Confirmation Form and (if applicable) a Statement of Work (“the Fee”) in accordance with this Agreement, the Order Confirmation Form and/or the Statement of Work. If not otherwise specified on an Order Confirmation Form or Statement of Work, the Fee will be due within thirty (30) days of date of invoice. Except as otherwise specifically provided in this Agreement, the Fee paid and payable to PatSnap hereunder are non-cancellable and non-refundable. If Customer fails to pay any amounts due under this Agreement by the due date, in addition to any other rights or remedies it may have under this Agreement or by matter of law, (i) all remaining invoices relating to Products and Services under the same Order Confirmation Form and/or Statement of Work shall become due and payable immediately; (ii) PatSnap reserves the right to suspend the Service and/or performance of remaining Professional Services upon thirty (30) days written notice, until such amounts are paid in full, and (iii) PatSnap will have the right to charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until Customer pays all amounts due; provided that PatSnap will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the issue.
8.2 Taxes. The Fee does not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder (excluding taxes based on PatSnap’s net income or property) unless Customer provides PatSnap with a valid tax exemption certificate authorized by the appropriate taxing authority.
9. Warranties and Disclaimer.
9.1 Service Warranty. PatSnap warrants that during the Term: (i) the Products and Services shall perform materially in accordance with the applicable Documentation, (ii) PatSnap shall make commercially reasonable efforts to make the Products and Services available to Customer 24 hours a day, 7 days a week, every day of each year (except for any unavailability caused by a Force Majeure event (as defined in Section 14.4)); (iii) PatSnap will employ then-current, industry-standard measures to test the Products and Services to detect and remediate viruses, Trojan horses, worms, logic bombs, or other harmful code or programs designed to negatively impact the operation or performance of the Products and Services, and (iv) it owns or otherwise has sufficient rights in the Products and Services to grant to Customer the rights to use the Products and Services granted herein. As Customer’s exclusive remedy and PatSnap’s entire liability for a breach of the warranties set forth in this Section 9.1, PatSnap shall use commercially reasonable efforts to correct the non-conforming Products and Services at no additional charge to Customer, and in the event PatSnap fails to successfully correct the Products and Services within a reasonable time of receipt of written notice from Customer detailing the breach, then Customer shall be entitled to terminate the applicable Products and Services and receive an immediate refund of any prepaid, unused Fee for the non-conforming Service(s). The remedies set forth in this subsection shall be Customer’s sole remedy and PatSnap’s sole liability for breach of these warranties. The warranties set forth in this Section shall apply only if the applicable Products and Services has been utilized in accordance with the Documentation, this Agreement and applicable law.
9.2 Professional Services Warranty. PatSnap warrants that the Professional Services will be performed in a good and workmanlike manner consistent with applicable industry standards. As Customer’s sole and exclusive remedy and PatSnap’s entire liability for any breach of the foregoing warranty, PatSnap will, at its sole option and expense, promptly re-perform any Professional Services that fail to meet this warranty or refund to Customer the Fee paid for the non-conforming Professional Services.
9.3 Disclaimer. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH UNDER SECTION 9.1, PATSNAP AND PATSNAP’S THIRD PARTY LICENSORS’ HEREBY DISCLAIM ALL (AND HAVE NOT AUTHORIZED ANYONE TO MAKE ANY) WARRANTIES RELATING TO THE SERVICE, PROFESSIONAL SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES ARE NOT RELYING AND HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, EXCEPT FOR THE WARRANTIES SET FORTH UNDER THIS SECTION 9. PATSNAP MAKES NO WARRANTY REGARDING ANY NON-PATSNAP APPLICATION WITH WHICH THE SERVICE MAY INTEROPERATE.
10. Limitation of Liability.
10.1 IN NO EVENT WILL EITHER PARTY’S (OR PATSNAP’S THIRD PARTY LICENSORS’) BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, PRODUCTS, SERVICES, RIGHTS, OR TECHNOLOGY, (C) FOR ANY LOST PROFITS OR REVENUES, OR (D) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
10.2 IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE PRODUCTS AND SERVICES OR PROESSIONSAL SERVICES (AS APPLICABLE) GIVING RISE TO THE LIABILITY IN THE TWELVE-MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION SHALL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND CUSTOMER’S AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE ‘FEE’ SECTION ABOVE.
11.1 PatSnap Indemnification Obligation. Subject to Section 11.3, PatSnap will defend Customer from any and all claims, demands, suits or proceedings brought against Customer by a third party alleging that the Services, as provided by PatSnap to Customer under this Agreement infringe any patent, copyright, or trademark or misappropriate any trade secret of any third party (each, an “Infringement Claim”). PatSnap will indemnify Customer for all damages, costs, reasonable attorneys’ fees finally awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by PatSnap, in connection with an Infringement Claim. In the event of any such Infringement Claim, PatSnap may, at its option: (i) obtain the right to permit Customer to continue using the Service, (ii) modify or replace the relevant portion(s) of the Service with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (iii) terminate this Agreement as to the infringing Service and refund to Customer any prepaid, unused Fee for such infringing Service hereunder. Notwithstanding the foregoing, PatSnap will have no liability for any Infringement Claim of any kind to the extent that it results from: (1) modifications to the Service made by a party other than PatSnap, (2) the combination of the Service with other products, processes or technologies (where the infringement would have been avoided but for such combination), or (3) Customer’s use of the Service other than in accordance with the Documentation and this Agreement. The indemnification obligations set forth in this Section 11.1 are PatSnap’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind.
11.2 Customer Indemnification Obligation. Subject to Section 11.3, Customer will defend PatSnap from any and all claims, demands, suits or proceedings brought against PatSnap by a third party alleging a violation of a third party’s rights arising from Customer’s provision of the Services Data. Customer will indemnify PatSnap for all damages, costs, reasonable attorneys’ fees finally awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by Customer.
11.3 Indemnity Requirements. The party seeking indemnity under this Section 11.3 (“Indemnitee”) must give the other party (“Indemnitor”) the following: (a) prompt written notice of any claim for which the Indemnitee intends to seek indemnity, (b) all cooperation and assistance reasonably requested by the Indemnitor in the defense of the claim, at the Indemnitor’s sole expense, and (c) sole control over the defense and settlement of the claim, provided that the Indemnitee may participate in the defense of the claim at its sole expense.
12. Customer Mention.
PatSnap may use Customer’s name and logo as part of a list of customers and may refer to Customer as a user of its Products and Services in its advertising and marketing activities and further Customer agrees to participate in other marketing activities which may include but not be limited to writing references and case studies, speaking at PatSnap sponsored events and participation in PatSnap sponsored webinars. Each Party shall obtain the other Party’s permission, not to be unreasonably withheld, prior to using the other Party’s name, logos, or other trademarks for any other marketing or promotional purposes. The Parties agree that any press release or other public comments issued by either Party relating to this Agreement (including, without limitation, any dispute under this Agreement), or your subscription to or use of the Products and Services, will be prepared jointly between PatSnap and Customer and will be issued only upon mutual agreement of the Parties.
13. Term, Termination, and Effect of Termination.
13.1 Term. The term of this Agreement commences on the Effective Date and continues until the stated term in all Order Confirmation Forms has expired or has otherwise been terminated. Subscriptions to the Products and Services commence on the date, and are for a period, as set out in the applicable Order Confirmation Form (“Term”). Upon expiration of the Term, unless otherwise stated on an applicable Order Confirmation Form, the Products and Services will automatically renew for additional terms of 12 months (each a “Renewal Term”), unless and until either party gives the other notice of non- renewal at least thirty (30) days prior to the end of the then-current Term or Renewal Term.
13.2 Termination. Either party may terminate this Agreement by written notice to the other party in the event that (i) such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer pursuant to this Clause 13.2, PatSnap will refund Customer a pro-rata portion of any prepaid Fee that cover the remainder of the applicable Term after the effective date of termination and a pro-rata portion of any prepaid Professional Services Fee that cover Professional Services that have not been delivered as of the effective date of termination.
13.3 Retrieval of Services Data. During the Term, Customer shall be able to download Services Data for use, in accordance with the terms of this Agreement Following termination or expiry of an applicable Order Confirmation Form and/ or this Agreement, Customer shall no longer have any rights to access the Services Data within the Services and, unless legally prohibited, PatSnap shall delete all Services Data by deletion of Customer’s unique instance of the Subscription Service; provided, however, that PatSnap will not be required to remove copies of the Services Data from its backup media and servers until such time as the backup copies are scheduled to be deleted in the normal course of business; provided further that in all cases PatSnap will continue to protect the Services Data in accordance with this Agreement.
13.4 Effect of Termination. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Customer including all Order Forms will immediately terminate and Customer will cease using the Service (except as otherwise permitted under Section 13.3 (“Retrieval of Services Data”) and PatSnap Confidential Information. Termination for any reason other than termination for cause by Customer pursuant to Section 13.2(i) shall not relieve Customer of the obligation to pay all future amounts due under all Order Forms. The sections titled “Definitions,” “Confidentiality,” “Ownership; Aggregated Data,” “Fee, Expenses and Taxes,” “Warranty Disclaimer,” “Limitation of Liability,” “Indemnification,” “Term, Termination, and Effect of Termination,” and “General” shall survive any termination or expiration of this Agreement.
14.1 Assignment. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer or PatSnap without the other party’s prior written consent which shall not be unreasonably withheld or delayed, and any such attempted assignment or transfer shall be void and without effect, notwithstanding PatSnap’s right to sub contract in clause 14.2. Notwithstanding the foregoing, either party may freely assign this Agreement in its entirety (including all Order Confirmation Forms), upon notice and without the consent of the other party, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that the Fee owed and due have been paid.
14.2 Subcontracting. PatSnap reserves the right to subcontract the provision of certain elements of the Products and Services and/or Professional Services in its sole discretion to dedicated third parties with who it has a contractual business relationship.
14.3 Controlling Law, Attorneys’ Fees and Severability. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of England without giving effect to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. With respect to all disputes arising out of or related to this Agreement, the party’s consent to exclusive jurisdiction and venue of the courts of England. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
14.4 Notices. All legal notices hereunder shall be in writing and given upon (i) personal delivery, in which case notice shall be deemed given on the day of such hand delivery, or (ii) by overnight courier, in which case notice shall be deemed given one (1) business day after deposit with a recognized courier for U.S. deliveries (or three (3) business days for international deliveries).
14.5 Force Majeure. If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party including but not limited to computer related attacks, hacking, or acts of terrorism (a “Force Majeure Event”), the party so affected shall be excused from such performance and liability to the extent of such prevention or restriction.
14.6 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose. There are no third-party beneficiaries under this Agreement.
14.7 Export Compliance. Each party represents that it is not named on any U.S. government list of persons or entities with which U.S. persons are prohibited from transacting, nor owned or controlled by or acting on behalf of any such persons or entities, and Customer will not access or use the Service in any manner that would cause any party to violate any U.S. or international embargo, export control law, or prohibition.
14.8 Government End User. If Customer is a U.S. government entity or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that elements of the Service constitute software and documentation and are provided as “Commercial Items” as defined in 48 C.F.R. 2.101 and are being licensed to U.S. government User as commercial computer software subject to restricted rights described in 48 C.F.R. 2.101, 12.211 and 12.212. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of the Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFARS”) and its successors. This U.S. Government End User Section 12.8 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.
14.9 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
14.10 Entire Agreement. This Agreement together with the Order Confirmation Form(s) constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the parties hereto, including any non-disclosure agreement(s), and related to the subject matter hereof are expressly cancelled. The parties agree that any term or condition stated in Customer’s purchase order or in any other of Customer’s order documentation (excluding Order Confirmation Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Confirmation Form, (2) this Agreement, and (3) the Documentation. No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties hereto. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision.
API PRODUCT SPECIFIC TERMS
The following terms apply in addition to the General PatSnap Services Terms and Conditions.
1.1 “API Data” means all information and data (such as text, images, photos, videos, audio and documents) in any format that is accessible by Customer via the API.
1.2 “API Platform” means PatSnap software applications and any other online products or services provided by PatSnap to its users via the PatSnap website or other means, including any and all data available through such applications and services.
1.3 “Customer Application” means any software application or service that is developed by Customer that is able to programmatically send and receive API Data.
2. Customer’s Obligations.
2.1 Customer is permitted to access the API for Customer’s own internal business purposes and may: (i) Access the API via the method prescribed by PatSnap from time to time only, whether via a PatSnap website or other access method; (ii) Integrate the API with Customer Applications, in accordance only with the terms of this Agreement and any other instructions provided to Customer by PatSnap from time to time (iii) Once integrated with the Customer Applications, access data via the API and use the API; (iv) download, print and/or store copies of data accessed via the API; (v) print extracts of data accessed via the API; and (vi) use data accessed via the API in internal or external business reports circulated to Customer’s employees, officers or partners.
2.2 Customer has no proprietary rights with respect to the API or any data accessed via the API or any portion thereof and will not use the API or any portion thereof except as expressly permitted in Clause 2.1.
2.3 Without limiting the generality of the foregoing, Customer will not:
(i) use or access the API in any other way or for any other purpose than that set out in clause 2.1;
(ii) modify, disclose, copy or create derivative works based on the API, or any portion thereof;
(iii) access the API for the purpose of building a competitive product or service offered by PatSnap or copying any of features or user interfaces thereof;
(iv) attempt to circumvent security, tamper with, hack into, or otherwise disrupt any computer system, server, website, router or any other Internet connected device owned or managed by PatSnap;
(v) resell, sub-licence, rent, lease, distribute, repackage, rebrand, transfer or assign the intellectual property rights of PatSnap, its Affiliates or any third party licensors in the API and any data accessed via the API (in whole or in part) to any other person;
(vi) use the API in connection with any product or software other than the Customer Application;
(vii) distribute the API as a stand-alone product;
(viii) reverse-assemble the API;
(ix) make available to any third party any interface or functionality of PatSnap’s Applications, servers or services not expressly included in the API;
(x) use the API in connection with or to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: spyware, adware, or other malicious programs or code, counterfeit goods, items subject to EU, UK or US embargo, hate materials or materials urging acts of terrorism or violence, goods made from protected animal/plant species, recalled goods, hacking/surveillance/interception/descrambling equipment, cigarettes, illegal drugs and paraphernalia, unlicensed sale of prescription drugs and medical devices, pornography, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, unlicensed trade or dealing in stocks and securities, gambling items, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, non-packaged food items, weapons and accessories;
(xi) use the API in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to Intellectual Property Rights, rights of privacy, or this Agreement;
(xii) use the API in a manner that exceeds Fair Use, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the API documentation provided to you in connection with this Agreement;
(xiii) maintain a cache of the data accessed via the API; and/or
(xiv) cause, assist or permit any third party to do any of the foregoing.
2.4 PatSnap will issue Customer a unique electronic key to access the API. Customer will hold the electronic key in confidence in accordance with section 6 and will not assign, transfer or disclose such electronic key to any third party. Customer will be required to use the electronic key to access the API and any updates or subsequent versions of the API that PatSnap may release from time to time in its sole discretion. PatSnap may require Customer to alter all Customer Applications developed or distributed under this API Agreement to use the most current version of the API. PatSnap will have the right to review and approve the Customer Application, including any updates or modified versions, and Customer will provide PatSnap with access to review, test and approve the Customer Application upon request by PatSnap at any time during the Subscription Term of this Agreement.