Data License Agreement
This Data License Agreement (DLA) is made by and between all clients covered by this license ("Licensee") and DefinedCrowd Corporation ("Licensor") with its registered address at 1201 3rd Avenue, STE 2200, Seattle WA 98101, USA (“Defined.ai”) and is effective as of November 30th, 2022.
WHEREAS, Licensor has compiled data into the proprietary [database/data feed] described in Exhibit A, and such proprietary [database/data feed] (the "Data"); and
WHEREAS, Licensor desires to license the Data to Licensee, and Licensee desires to license the Data from Licensor, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
a. License Grant.
Subject to and conditioned on Licensee's compliance with all other terms and conditions of this Agreement, Licensor hereby grants Licensee a non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 8(f)) license during the Term to use the Data solely for Licensee's permitted use set forth in Section 1(c) (the "Permitted Use(s)"). The usage by the Licensee will not exceed the limits set forth in Exhibit A, except as expressly agreed to in writing by the Parties and subject to any appropriate additional fees determined by the Licensor.
b. Use Restrictions.
Licensee shall only use the Data for the Permitted Use and shall not disclose, release, distribute, or deliver the Data Assets, or any portion thereof, to any third party without Licensor's prior written authorization. Any purpose or use not specifically authorized herein is prohibited unless otherwise agreed to in writing by Licensor. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Licensee shall not at any time, directly or indirectly: (i) copy, modify, or, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Data; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source of the Data or methods used to compile the Data, in whole or in part; (iv) remove any proprietary notices included within the Data; (v) publish, enhance, or display any compilation or directory based upon information derived from the Data; or (vi) use the Data unlawfully according to the applicable privacy and data protection laws; (vii) use the Data in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law or the terms and conditions of this Agreement.
c. Permitted Use(s):
Use is solely for the benefit of Licensor in the ordinary course of its internal business operations, excluding any Licensee’ commercial purposes, either free charge or paid. Permitted Use does include the commercial exploitation of models based that have used the Data for training, testing or benchmarking purposes, as long as the Data itself is not made available or it does not output recognizable content from individual contributors to the Assets, e.g., recognizable Text-to-Speech voices, avatars and similar.
d. Reservation of Rights.
Licensor reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Data.
Licensor shall deliver the Data electronically, on tangible media, or by other means. Risk of loss of any tangible media on which the Data is delivered will pass to Licensee on delivery to carrier.
2. Data Protection.
a. Data Security.
Licensee shall use all reasonable legal, organizational, physical, administrative, and technical measures, and security procedures to safeguard and ensure the security of the Data and to protect the Data from unauthorized access, disclosure, duplication, use, modification, or loss, including without limitation, the requirements contained set forth in Exhibit A, in line with data protection laws.
b. Duty to cooperate.
To the extent required by law or otherwise required, the Parties agree to support each other in complying with the obligations under applicable data protection laws.
Each Party is individually responsible within its scope of responsibility for compliance with applicable data protection laws.
a. Use and Disclosure.
During this Agreement and for a period of 3 (three) years following its termination, each Party shall hold in confidence and not use for any purposes unrelated to this Agreement or disclose to any third party (except the Party’s employees, agents or contractors who have a need to know and who are subject to confidentiality obligations at least as restrictive as those in this Agreement) any Confidential Information of the other party. Each party agrees to take all reasonable steps to ensure that the Confidential Information is not disclosed or distributed by its employees, contractors, or agents in violation of this Agreement.
b. Permitted Disclosures.
Either Party may disclose Confidential Information of the other party (i) in response to a valid order or request by a court or other governmental or regulatory body, (ii) as otherwise required by law or (iii) as necessary to establish the rights of either party under this agreement. The party seeking to disclose information will promptly give notice to the other party and allow the other party to object or to seek a protective order, to the extent permitted by the applicable law.
c. Non-Confidential Information.
That parties shall not be obligated under this Section (“Confidentiality”) with respect to Confidential Information that (i) is or becomes part of the public domain through no act or omission of the receiving party; (ii) was in the receiving party’s lawful possession without restriction prior to the disclosure and had not been obtained by the receiving party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the receiving party by a third party without restriction on the disclosure; or (iv) is independently developed by the receiving party without access to the Confidential Information.
d. Destruction or Return.
Except as otherwise authorized or required in furtherance of the purposes of this Agreement, promptly upon a request by the disclosing party, the receiving party will at its option either destroy and certify destruction in writing or return to the disclosing party all Confidential Information and all documents or media containing any such Confidential Information and all copies or extracts thereof provided that the receiving party shall be permitted to retain copies of any computer records and files containing any Confidential Information which have been created pursuant to automatic archiving and back-up procedures, or retain a back-up copy of such Confidential Information as required by law, rule, regulation or internal compliance policies, in which cases such Confidential Information shall continue to be subject to confidentiality obligations even after termination of this Agreement.
4. Intellectual Property Ownership.
Licensee acknowledges that, as between Licensee and Licensor, Licensor owns all rights, title, and interest, including all intellectual property rights, in and to the Data. Licensee further acknowledges that: (a) the Data is an original compilation protected by United States copyright laws; (b) Licensor has dedicated substantial resources to collect, manage, and compile the Data; and (c) the Data constitutes trade secrets of Licensor. Licensor may terminate this Agreement without advance notice to Licensee or an opportunity for Licensee to cure and without further obligation or liability if Licensee contests any of Licensor's right, title, or interest in or to the Data, including without limitation, in a judicial proceeding anywhere throughout the world.
4. Disclaimer of Warranties.
THE DATA IS PROVIDED "AS IS" AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE DATA, OR ANY PRODUCTS OR RESULTS OF ITS USE, WILL MEET LICENSEE'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
a. Licensor Indemnification.
I. Licensor shall indemnify, defend, and hold harmless Licensee from and against any and all losses, damages, liabilities, or costs (including attorneys' fees) ("Losses") incurred by Licensee resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that Licensee's Permitted Use of the Data infringes or misappropriates such third party's US intellectual property rights, and data protection rights, provided that Licensee promptly notifies Licensor in writing of the claim, cooperates with Licensor, and allows Licensor sole authority to control the defense and settlement of such claim.
II. If such a claim is made or appears possible, Licensee agrees to permit Licensor, at Licensor's sole discretion, to (A) modify or replace any such infringing material to make it non-infringing, or (B) obtain rights to continue use. If Licensor determines that none of these alternatives is reasonably available, Licensor may terminate this Agreement, in its entirety or with respect to the affected part or feature of the Data, effective immediately on written notice to Licensee.
III. This Section 6(a) will not apply to the extent that the alleged infringement arises from (A) use of the Data in combination with data, software, hardware, equipment, or technology not provided by Licensor or authorized by Licensor in writing or (B) Licensee's violation of Section 1(b) of this Agreement.
b. Licensee Indemnification.
Licensee shall indemnify, hold harmless, and, at Licensor's option, defend Licensor from and against any Losses resulting from any Third-Party Claim based on Licensee's: (i) negligence or willful misconduct; or (ii) use of the Data in a manner not authorized by this Agreement, provided that Licensee may not settle any Third-Party Claim against Licensor unless such settlement completely and forever releases Licensor from all liability with respect to such Third-Party Claim or unless Licensor consents to such settlement, and further provided that Licensor shall have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
c. Sole Remedy.
THIS SECTION 6 SETS FORTH LICENSEE'S SOLE REMEDIES AND LICENSOR'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE DATA INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
7. Limitations of Liability.
a. Exclusion of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, (b) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, (c) LOSS OF GOODWILL OR REPUTATION, (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA OR BREACH OF DATA OR SYSTEM SECURITY, OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
b. Total Aggregate Liability:
General. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, IN NO EVENT WILL LICENSOR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO LICENSOR UNDER THIS AGREEMENT, LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY THE LICENSOR.
8. Term and Termination.
a. Term of Agreement.
The term of this License begins on the Effective Date and will continue in effect until terminated pursuant to Section 8(b).
b. Termination for Cause.
Either Party may terminate this Agreement, effective on written notice to the other Party, given 60 (sixty) days’ notice.
Either Party will have the right to terminate this Agreement immediately upon written notice at any time if the other party is in material breach of any warranty, material term, or covenant of this Agreement and fails to cure that breach within 30 (thirty) days after written notice of that breach.
Licensor reserves the right to suspend delivery of the Agreement if Licensee fails to timely pay any undisputed amounts due to Licensor under this Agreement, but only after Licensor notifies Licensee of such failure and such failure continues for 15 (fifteen) days. Suspension of the Agreement shall not release Licensee of its payment obligations under this Agreement. Licensee agrees that Licensor shall not be liable to Licensee or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the Agreement resulting from Licensee's non-payment.
c. Effect of Expiration or Termination.
Upon termination as stated in Section 7b, the license granted hereunder will also terminate, and, without limiting Licensee's obligations under Section 2, Licensee shall cease using and delete, destroy, or return all copies of the Data and certify in writing to the Licensor that the Data has been deleted or destroyed. No expiration or termination will affect Licensee's obligation to pay all Fees that may have become due before such expiration or termination, or entitle Licensee to any refund.
Any rights, obligations, or required performance of the parties in this Agreement which, by their express terms or nature and context are intended to survive termination or expiration of this Agreement, will survive any such termination or expiration, including the rights and obligations set forth in this Section 8 and Section 1.
a. Entire Agreement.
This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the appearing Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. No amendment to, supplement or modification of this Agreement will be binding unless in writing and signed by duly authorized representatives of both parties. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by each Party from time to time in accordance with this Section). The Parties shall deliver Notices by personal delivery, courier, or email (with confirmation of transmission) or certified or registered mail. Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.
c. Amendment and Modification; Waiver.
No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
e. Governing Law and Venue.
The Agreement will be governed by and interpreted in accordance with the laws of the state of Washington without regard to its conflict of laws provisions. Any legal suit, action or proceeding arising out of this Agreement or the Services provided hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Washington in each case located in the city of Seattle and King County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Licensee may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of Licensor. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding solely upon to the benefit of the appearing Parties hereto.
g. Export Regulation.
The Data may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Data to, or make the Data accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Data available outside the US.
h. Equitable Relief.
Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 2 or, in the case of Licensee, Section 1(b) would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
i. Auditing Rights and Required Records.
Licensee agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Licensor may, at its own expense, on reasonable prior notice, periodically inspect and audit Licensee's records with respect to matters covered by this Agreement.
Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Agreement.
A. DESCRIPTION OF DATA: Digital assets for training and/or testing of speech, NLP, computer vision, and other models.
B. DATA SECURITY: Licensee shall use all reasonable legal, organizational, physical, administrative, and technical measures, and security procedures to safeguard and ensure the security of the Data and to protect the Data from unauthorized access, disclosure, duplication, use, modification, or loss.