Data Licence Agreement

 

The dataset (“Data”) that you are licensing is created and owned by GAIALENS LTD, a company incorporated and registered in England and Wales with company number 13310554 (“Licensor”). This Data Licence (“Licence” or “Agreement”) constitutes a binding legal agreement between you (“Licensee”) and Licensor.

EACH TIME YOU USE THE DATA, YOU ARE ACCEPTING THIS LICENCE. IF YOU DO NOT AGREE TO THE LICENCE, LICENSOR IS UNWILLING TO GRANT YOU THE RIGHT TO USE THE DATA, AND YOU MUST CEASE USE OF THE DATA IMMEDIATELY. YOU ACCEPT THE LICENCE BY (1) CLICKING TO AGREE OR ACCEPT WHERE THESE OPTIONS ARE PRESENTED TO YOU, AND /OR (2) ACTUALLY USING THE DATA. IF YOU ARE ACCEPTING ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT: (I) YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR SUCH ENTITY TO THE LICENCE; (II) YOU HAVE READ AND UNDERSTAND THE LICENCE; AND (III) YOU AGREE, ON BEHALF OF THE PARTY THAT YOU REPRESENT, TO THE LICENCE. IF YOU DON’T HAVE THE LEGAL AUTHORITY TO BIND THE LICENSEE, PLEASE DO NOT CLICK THAT YOU AGREE OR USE THE DATA.

THIS IS A 1-YEAR LICENCE. YOU MUST DELETE THE DATA AFTER 1 YEAR (the “Term”).

1. Licence.

(a) Licence Grant. Subject to and conditioned on Licensee’s payment of fees and compliance with all the terms and conditions of this Agreement, Licensor hereby grants Licensee a non-exclusive, non-sublicensable, revocable, and non-transferable licence during the Term to use the Data for the following “Permitted Uses”: (i) internal business or internal research purposes, and/or (ii) the creation of external products, applications, research publications and analyses based on the Data so long as (A) only non-material portions of the Data are exposed to third parties and (B) such products are not competitive with the offering of the Data for sale.

(b) Use Restrictions. Licensee shall only use the Data for the Permitted Uses. Licensee shall not at any time, directly or indirectly: (i) sell, sublicence, assign, distribute, publish, transfer, disclose or otherwise make available the Data in its current form or substantially similar form, (ii) permit users of any product or service that incorporates the Data to download or export material portions of the Data (where “material portions” means a set of data that could be marketed independently), (iii) use the data to create or host any commercially available mailing list, point of interest database or business listings database, (iv) 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, (v) use the Data to attempt to identify behaviour of a known individual for any reason, or (vi) use the Data to do advertising targeting or attribution of individuals based on visits to any health care point of interest (including without limitation, doctors, hospitals, mental health professionals, physical therapy, treatment centres, care facilities).

(c) Reservation of Rights. Licensor reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights and licences 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. Without limiting the foregoing, Licensee shall not acquire any proprietary rights of the Data.

2. Fees and Delivery.

(a) Fees. Fees for this Licence will be charged on an annual/monthly basis at a rate to be agreed between the parties. Licensee is responsible for the timely payment of the Fees. If Licensee fails to make any payment when due, in addition to all other remedies that may be available: Licensor may prohibit access to the Data until all past due amounts have been paid, without incurring any obligation or liability to Licensee or any other person by reason of such prohibition of access to the Data.

(b) Taxes. The Fees shall be exclusive of VAT or any other applicable sales tax, which shall be paid by the Licensee at the rate and in the manner for the time being prescribed by law.

(c) Delivery. The Data will be delivered to Licensee by Licensor either through flat file delivery or API, as applicable. Licensor has no liability due to a delay in delivery or any temporary interruption in service of API.

3. Data Security and Licensee Covenants.

(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.

(b) Licensee Representations and Covenants. Licensee represents and warrants that it has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder; and that Licensee’s use of the Data and performance of this Agreement shall not violate, conflict with, or result in a material default under any other agreement, including confidentiality agreements between Licensee and third parties. Licensee covenants to maintain, hold and process the Data in compliance with all applicable laws. Licensee covenants it shall not attempt to reverse engineer, decompile, or otherwise re-identify the Data by using any method, including, but not limited to, merging external data with Data provided by Licensor. Licensee agrees to not (i) circumvent security features used to prevent or restrict access to or use API, (ii) create user accounts by automated means or (iii) impersonate any person or entity.

4. Intellectual Property Ownership. Licensee acknowledges that, as between Licensee and Licensor, Licensor owns all right, title and interest, including all intellectual property rights, in and to the Data. Licensee further acknowledges that: (a) it shall have no rights in or to the Data other than the right to use it in accordance with the express terms of this Agreement; (b) Licensor has dedicated substantial resources to collect, manage and compile the Data; and (c) the Data constitutes trade secrets of Licensor. 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, (a) Licensor may terminate this Agreement without advance notice to Licensee or an opportunity for Licensee to cure and without further obligation or liability and (b) Licensee acknowledges and agrees that it will be in material breach under this Agreement.‌

5. 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, OR ERROR FREE.‌

6. Indemnification. Licensee shall indemnify, hold harmless, and, at Licensor’s option, defend Licensor from and against any and all losses, damages, liabilities, or costs (including attorneys’ fees) (“Losses”) resulting from any any third-party claim, suit, action, or proceeding (“Third-Party Claim”) based on Licensee’s: (i) negligence or wilful misconduct; (ii) breach of representation or warranty hereunder or (iii) use of the Data in a manner not authorised 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 defence thereof by counsel of its own choice.‌

7. Limitations of Liability. 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, SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF OPPORTUNITY, BUSINESS DISRUPTION OR OTHER PECUNARY LOSS ARISING OUT OF THE USE OR INABILITY TO USE THE DATA, (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. 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 FEES ACTUALLY PAID BY LICENSEE IN THE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.‌

8. Term and Termination.

(a) Term. The term of the licence set for in this Agreement begins on the date Licensee purchases any Data from the Licensor by any means, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until the one year anniversary of such date (the “Term”). Each purchase of Data by any means triggers a new Term with respect to that piece of Data. Licensee and Licensor may agree to extend the Term by separate written agreement.

(b) Termination. This Agreement will terminate immediately and automatically if: (a) the Licensee (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors; (b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the Licensee; (c) an order is made for the winding up of the Licensee, or the Licensee passes a resolution for its winding up.

In addition to any other express termination right set forth elsewhere in this Agreement, Licensor may terminate this Agreement, effective on written notice to Licensee, if Licensee breaches any of its obligations under this Agreement.

(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, the licence granted hereunder will also terminate, and, without limiting Licensee’s obligations under Section 3, Licensee shall cease using and delete all copies of the Data. Within 15 days of Licensor’s request, Licensee shall certify in writing to the Licensor that the Data has been deleted. 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.

(d) Survival. This Section 8(d) and Sections 3 (Data Security and Licensee Covenants), 4 (Intellectual Property Ownership), 5 (Disclaimer), 6 (Indemnification), 7 (Limitations of Liability), 9 (Miscellaneous), 10 (Third Party Terms) survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.‌

9. Miscellaneous.‌

(a) Entire Agreement; Interpretation. This Agreement constitutes the sole and entire agreement of the 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. A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement. The parties agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement.

(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder to a party (each, a “Notice”) must be in writing and shall be: (a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or (b) sent by fax or email.

Any notice or communication shall be deemed to have been received: (a) if delivered by hand, at the time the notice is left at the proper address; (b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or (c) if sent by fa or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Section business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

 

(c) Force Majeure. In no event shall Licensor be liable to Licensee, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Licensor’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemic, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

(d) Amendment and Modification; Waiver. Licensee’s rights and obligations under this Licence may be amended or modified from time to time and at any time. If any such amendment or modification is material, Licensor will post notice of it on the Licensor’s website or by email to registered users. Your use of the Data following any such amendment or modification shall be deemed your acceptance of such amendment and modification. You agree to review this Licence periodically to be aware of such amendments and modifications. 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.

(e) Severability. 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.

(f) Governing Law; Jurisdiction. This Agreement and any dispute or claim arising out or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).

(g) Assignment. 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. Licensor may assign this Agreement to a successor in connection with the merger, consolidation, or sale of all or substantially all of its assets or that portion of its business to which this Agreement relates without the consent of Licensee. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

(h) Export Regulation. 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 laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export licence or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Data available outside the UK.‌

(i) Equitable Relief. Licensee acknowledges and agrees that a breach or threatened breach by Licensee of any of its obligations under Section 1 (Permitted Uses) or Section 3 (Data Security and Licensee Covenants) would cause Licensor irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Licensor 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.