1. Scope of Agreement. This Agreement sets forth the terms and conditions under which Team Cymru will enter a Commercial Data Sharing Statement of Work (SOW) to provide Data in exchange for certain items. The SOW and any exhibits or amendments to the SOW will be governed by these terms and conditions. In the event of an express and direct conflict between the terms of this Agreement and the SOW, or any amendment to the SOW, the terms and conditions of this Agreement will control, provided, however, the SOW or amendment may specifically supersede any terms or conditions herein as agreed by the parties.

 

2. Definitions.

 

2.1 Data means any information such as data feeds as detailed in the SOW and any attached exhibits, shared by the parties pursuant to this Agreement.

 

2.2 Personally Identifiable Information means information about individuals which identifies that individual, for example, name, address, email address, or telephone number.

 

2.3 Disclosing Party means the party disclosing the Data or confidential information pursuant to this agreement.

 

2.4 Receiving Party means the party receiving the Data or confidential information pursuant to this agreement.

 

3. Ownership. As between the parties: (a) Team Cymru owns all right, title, and interest in and to, or has obtained license to, the Team Cymru Data, any updates thereto, and any technology used to provide the services, Team Cymru’s trademarks, and any other materials of a kind or nature provided by Team Cymru to PARTNER under or in relation to this Agreement; and (b) PARTNER owns all right, title, and interest in and to, or has obtained license to, the PARTNER Data, any updates thereto, and any technology used to provide the services, PARTNER’s trademarks, and any other materials of any kind or nature provided by PARTNER to Team Cymru under or in relation to this Agreement.

 

4.1 Intellectual Property Rights. With the exception of those intellectual property rights explicitly licensed under the SOW, nothing in the SOW will be construed to grant any intellectual property rights from either party to the other, whether under a theory of implication or estoppel. Nothing in the SOW will be construed as a license or other form of grant to any copyright, patent, trade secret, trademark, or other intellectual property right of Team Cymru and PARTNER, apart from the underlying subject matter of the license grant.

 

4.2 Compliance with Laws/Use of Personally Identifiable Information. Each party shall use all Data and Personally Identifiable Information in compliance with all applicable laws of federal, state, local and foreign governments (and all agencies thereof).

 

4.3 Reservation. The rights holder expressly reserves all ownership rights not expressly granted herein.

 

5. Representations and Warranties. Disclosing Party has all rights, approvals, and/or authorizations necessary to provide the Data described in the SOW and any exhibits, free from all liens, encumbrances and claims of others. Disclosing Party agrees that they will not submit information that they know at the time of submission to be false, and that they will submit information only in good faith. Receiving Party acknowledges and agrees that information submitted may be unevaluated and unverified, and except as provided in the preceding sentence, no such submission shall constitute any representation or warranty. Receiving Party acknowledges and agrees that they must use their own judgment in assessing the nature and accuracy of all the information. EXCEPT AS OTHERWISE PROVIDED HEREIN OR IN THE SOW, DISCLOSING PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO FITNESS FOR A PARTICULAR PURPOSE.

 

6. No Attribution to The Parties. No attribution to either party shall be made to any third parties or to any party’s agent, representative, contractor, subcontractor, consultant, advisor or other individual or entity affiliated with that party, unless such individual or entity is bound by this Agreement or the other party has consented to said disclosure in writing.

 

7. Protection of Confidential Information

 

7.1 Confidential Information Defined. As used herein, “Confidential Information” means any closely held data, information or financial information in the possession of the Disclosing Party, which is disclosed to the Receiving Party, not generally available to the public and relates to, but is not limited to, techniques, methods, skills or operations developed or employed by Disclosing Party and which Disclosing Party desires to protect against unrestricted disclosure or exploitation. Any information disclosed by Disclosing Party to Receiving Party hereunder is designated without marking to be, at the time of delivery, “Confidential Information”.

 

7.2 Information Disclosed Under a Prior Non Disclosure Agreement. Information disclosed by Disclosing Party prior to the effective date of this Agreement pursuant to the terms of a prior non disclosure or similar agreement between the parties, the disclosure of which information was restricted under such agreement, shall retain confidential status and shall be treated as Confidential Information under the terms of this Agreement without further action on the part of Disclosing Party or Receiving Party.

 

7.3 Receiving Party Shall Exercise Care to Protect Confidential Information. Receiving Party agrees to use the same degree of care in protecting confidential information received under this Agreement as they exercise with respect to their own confidential information. The parties agree to restrict access to confidential information received under this Agreement to only those employees, contractors, subcontractors, consultants, or advisors bound by this or a similar agreement and with a validated “need to know” such information.

 

7.4 Confidential Information Exceptions. This Agreement imposes no obligation upon the Receiving Party with respect to Confidential Information which: (a) was in the possession of, or was known by, the Receiving Party prior to its receipt from the Disclosing Party, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by the Receiving Party from a third party, without an obligation to keep such information confidential; (d) is identified in writing or by cryptographically signed email by Disclosing Party as no longer Confidential or for disclosure; or (e) must be disclosed in connection with judicial or regulatory proceedings, or in accordance with a court order or statutory requirement, provided, if legally permitted, notice of same is given by the Receiving Party to the Disclosing Party prior to such disclosure, giving Disclosing Party an adequate opportunity to interpose an objection or take action to secure handling of the Confidential Information.

 

8. Indemnification

 

8.1 Team Cymru hereby agrees to indemnify, defend and hold harmless PARTNER from and against any and all third party claims, actions, proceedings, liabilities or losses including, without limitation, reasonable attorneys’ fees, arising from or based on arising from or relating to (a) any acts or omissions of Team Cymru within the scope of this Agreement, (b) a breach of the representations and warranties contained in Section 5 hereof, (c) any and all third party claims alleging that a third party’s rights have been violated by Team Cymru’s use of the PARTNER Data, (d) Team Cymru’s negligence or willful misconduct, or (e) Team Cymru’s violation of any applicable data privacy law, including but not limited to the EU GDPR.

 

8.2 PARTNER hereby agrees to indemnify, defend and hold harmless Team Cymru from and against any and all third party claims, actions, proceedings, liabilities or losses including, without limitation, reasonable attorneys’ fees, arising from or based on arising from or relating to (a) any acts or omissions of PARTNER within the scope of this Agreement, (b) a breach of the representations and warranties contained in Section 5 hereof, (c) any and all third party claims alleging that a third party’s rights have been violated by PARTNER’s use of the Team Cymru Data, (d) PARTNER’s negligence or willful misconduct, or (e) PARTNER’s violation of any applicable data privacy law, including but not limited to the EU GDPR.

 

9. Limitation of Liability. Except for breaches of the confidentiality obligations defined in the above section titled “Protection of Confidential Information”, in no event will either party be liable for any Special, Incidental, Indirect, or Consequential Damages whatsoever (including, but not limited to, damages for loss of profits, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the data/analysis provided under or in connection with any provision of this Agreement, even in the event of default, Tort (including negligence), Strict Liability, Breach of Contract or Breach of Warranty, and even if advised of the possibility of such damages.

 

10. Miscellaneous Provisions

 

10.1 Assignment. This Agreement and any and all of the rights and obligations of the parties hereunder shall not be assigned, delegated, sold, transferred, licensed or otherwise disposed of, by operation of law or otherwise, without the prior written consent of the other party, which will not be unreasonably withheld, provided, however, that a party may assign the entire Agreement to any third party in connection with any merger, consolidation, reorganization, liquidation, or sale of all or substantially all of the business or assets of the party upon thirty (30) days prior written notice to the other party.

 

10.2 This Agreement Creates No Implied Rights For Third Parties. Except as otherwise expressly provided herein, this Agreement is not intended, and should not be construed, to create any right or benefit, substantive or procedural, enforceable at law or otherwise by any third party against Team Cymru or PARTNER, or the officers, directors, employees, detailees, agents, representatives, contractors/subcontractors, consultants, advisors, successors, assigns or other agencies thereof.

 

10.3 Privity Of Contract. No privity of contract exists between either party and the other party’s customers. A party may neither take direction from, nor discuss any terms and conditions of this Agreement, with the other party’s customers.

 

10.4 Governing Law. This Agreement shall be construed, governed and interpreted in accordance with the laws of the State of Florida, U.S.A. without regard to its conflicts of laws provisions; provided, however, that the statutory and other requirements applicable to U.S. Federal law shall be interpreted in accordance with the decisions of applicable federal courts and boards of contract appeals in lieu of state law.

 

10.5 No Oral or Implied Waivers. No provision to this Agreement shall be deemed waived nor any breach excused, unless such waiver or consent is received in writing and signed (or cryptographically signed email) by a duly authorized representative of the entity claimed to have waived or consented. No consent to or waiver of a breach by another entity shall be construed as consent to or waiver of any other breach. No waiver of any breach of any provision of this Agreement constitutes a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof.

 

10.6 Provisions Severable. If any provision of this Agreement or its application, in whole or in part, to any entity shall be found to be unenforceable by a court of competent jurisdiction, such unenforceable provision or part thereof shall be severable, and the remainder of this Agreement shall remain in full force and effect.

 

10.7 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter. The numbering and labeling of the paragraphs in this Agreement are for identification purposes only and do not constitute any part of the agreement between the parties. This Agreement supersedes all prior and contemporaneous agreements and representations, whether oral or in writing, between the parties with respect to its subject matter. This Agreement may not be modified except by a writing either physically or electronically signed by both parties.

 

10.8 General Disclaimer. Translations of any materials into languages other than English are intended solely as a convenience to the non-English-readers and has no legal effect. In case of any discrepancy between a translation of this document and the official English version, the English version shall prevail.

 

10.9 Independent Contractors. The relationship of the parties under this Agreement is that of independent contractors. No party will be deemed to be an employee, agent, partner or legal representative of any other for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other.

 

10.10 Notices. Any notice, demand or request required or permitted to be given under this Agreement shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by email, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address as set forth in the SOW, or as subsequently modified by written notice.

 

11.0 Disputes. The parties shall make a good faith effort to amicably settle by mutual agreement any dispute that may arise between them under this Agreement. Any claim, controversy or dispute not resolved by the respective contracts administrators shall be elevated to the parties’ chief operating officers or their designees. If not resolved within thirty (30) days thereafter, the dispute will then be settled by arbitration in accordance with the Rules of the American Arbitration Association then in effect, and judgment upon the award rendered by the arbitrators may be entered into any court having jurisdiction thereof. Except as set forth elsewhere in this agreement:

 

11.1 General. Any dispute, controversy, or claim arising in connection with this Agreement shall be settled by binding arbitration. The arbitration shall be conducted by one arbitrator, who shall be appointed pursuant to the rules of the American Arbitration Association (the “AAA”). The arbitration shall be held in Seminole or Orange Counties, Florida, U.S.A. and shall be conducted in accordance with the commercial arbitration rules of the AAA, except that the rules set forth in this Agreement shall govern such arbitration to the extent they conflict with the rules of the AAA.

 

11.2 Best Efforts. The parties shall use their commercially reasonable best efforts to cause the arbitration to be conducted in an expeditious manner. All other procedural matters shall be within the discretion of the arbitrator.

 

11.3 Judgments. The determination of the arbitrator shall be final and binding on the parties. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The parties shall each be responsible for their own expenses in connection with such arbitration, including but not limited to counsel fees and fees of experts; provided, however, that the parties shall share equally in the expense of the arbitrators and of the AAA.

 

11.4 Confidentiality. All files, records, papers, or documents created in connection with such arbitration, including any record or decision, shall be kept strictly confidential.

 

12. Partnership Listing. Parties shall mutually agree to display logo on the appropriate partnership section of their websites to be posted on the effective date for the term of service.

 

13. Effective Date/Termination. The effective date, term and termination are as specified in the SOW.

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Version 1.1 (May 20, 2020)