BACKGROUND INFORMATION
A. Kingsley provides proprietary research, data analysis and strategic consulting solutions and associated information services to its clients. Kingsley’s principal information services are various types of surveys that use Kingsley’s proprietary survey methodologies, technologies and delivery mechanisms for the purpose of gathering, compiling and analyzing data to provide information services to Clients including access to The Kingsley Index™.
B. This Agreement sets forth the terms and conditions that will govern Kingsley’s provision of certain information services to the Client covered in any and all applicable Client Service Orders.
In consideration of the rights and benefits that they will each receive under this Agreement, Kingsley and Client (collectively, the “Parties” and individually a “Party”) agree as follows:
1. KINGSLEY SERVICES.
1.1 Provision of Services to Client. Client hereby engages Kingsley to provide it with the information services set forth on Client Service Orders executed by the Parties during the term of this Agreement (the “Services”) and Kingsley hereby agrees to provide Client with the Services. When and as Kingsley agrees to provide Client with additional Services during the term of this Agreement, the Parties will execute an addendum to each Client Service Order or create a new Client Service Order that describes the Services to be provided. The Client Service Orders are incorporated by this reference into this Agreement.
1.2 General Limitations on Use of Services. Except as otherwise approved by Kingsley in writing in advance, Client may use the Services solely for Client’s internal business purposes and in accordance with any guidelines provided by Kingsley. Client may not: (a) sell, resell, license, sublicense, or lease the Services to any third party; (b) may not give third parties access to the Services except as Kingsley may approve in advance; (c) use the Services to provide services to or for any third party; (d) use the Services to develop solutions that compete with the Services; or (e) use or attempt to use the Services for any purposes that are contrary to applicable laws.
2. TERM OF AGREEMENT.
2.1 Term of Agreement. The term of this Agreement shall start as of the Agreement Effective Date and will continue until all Client Service Orders have expired. Section 8 describes certain situations where a Party may terminate the Agreement early.
3. PAYMENTS, EXPENSES.
3.1 Fees, Charges and Expenses. Client will be responsible for all fees, charges, costs and expenses and other financial obligations described in each Client Service Order (“Fees”). The Client Service Orders set out the payment terms applicable to Fees. All Fees must be paid in U.S. dollars. Failure of Client to meet its payment obligations in a timely and complete manner shall constitute a material breach of this Agreement.
3.2 Taxes. Fees do not include sales, use, excise, import or export, withholding, value added or similar taxes or duties. As between Kingsley and Client, Client is responsible for any value added tax (VAT) arising as a result of Client’s receipt of the Services.
4. PROPRIETARY RIGHTS.
4.1 Rights of Parties. As between Client and Kingsley, all right, title and interest in and to the Services, including all survey methodologies and technologies (for example, The Kingsley Index™), belong solely to and are owned solely by Kingsley. Client will own its individual tangible or electronic survey results, subject to Kingsley’s rights in Section 5.4. All rights, including modifications and customizations to the Services, that arise out of suggestions from Client shall be owned by Kingsley. Each Party agrees that it will not adopt, use or register any acronym, trademark, trade name or other marketing or brand name of the other Party or any confusingly similar word or symbol as part of its own name or as part of the name of any products that it markets. As used in this Agreement, “Intellectual Property” means trademarks, trademark applications, tradenames, logos, copyrights, patents, patent applications, trade secrets and other proprietary rights.
5. CONFIDENTIALITY; DATA RIGHTS.
5.1 Non-Disclosure; Non-Use. Each Party agrees not to disclose, communicate, publish, disseminate, or make accessible, in any manner, the other Party’s Confidential Information to any person or entity except in accordance with this Agreement and applicable law. Each Party will take reasonably diligent measures to protect the confidentiality of, and avoid the unauthorized disclosure or use of, the other Party’s Confidential Information. This obligation continues indefinitely, unless applicable law requires a shorter duration, in which case these obligations continue through the date that is five (5) years after the termination of this Agreement. “Confidential Information” of a Party is any information that the Party designates or marks as confidential as well as any information that under the circumstances the other Party should reasonably assume to be confidential
5.2 Return or Destruction of Confidential Information. Upon termination of this Agreement (except as necessary for a Party to perform any post-termination obligation under this Agreement) or sooner if requested, each Party will: (i) discontinue all use of the other Party’s Confidential Information; (ii) return to the other Party all manifestations (e.g. documents, files) of the other Party’s Confidential Information; (iii) erase or destroy any Confidential Information of the other Party contained in computer memory or data storage apparatuses; and (iv) remove Confidential Information of the other Party from any software that incorporates or uses such Confidential Information in whole or in part.
5.3 Compelled Disclosures. If a Party is required (by oral questions, interrogatories, requests for information or documents in a court or administrative proceeding, subpoena, civil investigative demand or other similar process) to disclose any of the other Party’s Confidential Information, that Party will provide the other Party with prompt notice of the request or requirement so that the other Party may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement.
5.4 Data Rights. Despite anything to the contrary in this Agreement, Kingsley shall have a perpetual right and license to use any de-identified information and data created, developed or acquired by Kingsley in connection with providing the Services, including data acquired in connection with the Information Services (“Services Data”). For example, Kingsley may use Services Data to monitor, maintain, further develop and improve the Services. “De-identified” information and data is information and data that does not fall within the definition of “Personal Data” as defined elsewhere in this Agreement.
6. LEGAL COMPLIANCE OBLIGATIONS.
6.1 Compliance with Applicable Law. In performing their obligations and exercising their rights under this Agreement, the Parties will comply with applicable law.
6.2 Data Protection. Client shall only provide Kingsley with Personal Data (as defined below) if required by Kingsley. Client shall first ensure that it has all authorizations necessary under applicable law to provide Personal Data to Kingsley. Kingsley will take all actions required by applicable law to protect the Personal Data from unauthorized use or disclosure while in Kingsley’s custody. “Personal Data” is personally identifiable information about an individual person that (i) identifies an individual, or (ii) from which identification or contact information of an individual person can be derived. Personal Data can be in any media or format, including computerized or electronic records as well as paper-based files. Personal Data includes, without limitation, a person’s name, home and work contact information, email address, social security number, social insurance number, or other government-issued identifier.
6.3 Data Breaches. Each Party must promptly, but in any event within seventy-two (72) hours, notify the other Party of an actual or suspected unauthorized acquisition, use, alteration, disclosure, compromise or loss of any Personal Data (a “Data Breach”). Except for a Data Breach that results directly from the gross negligence or intentional wrongdoing of Kingsley, Kingsley has no responsibility for, and Client releases Kingsley from, all liability for, any Data Breach that is associated with or that is in connection with Kingsley’s use of Personal Data in a manner permitted by this Agreement or Client’s use of the Services where Kingsley has no direct control.
7. PERFORMANCE STANDARDS AND OTHER RESPONSIBILITIES.
7.1 Limited Warranty. Kingsley warrants that it will provide the Services in a commercially reasonable and professional manner. Client’s sole remedy for any breach of the warranty in this Section is for Kingsley to re-provide any Services. This warranty shall not apply if the warranty breach was caused by or attributable to Client’s breach of this Agreement or Client’s use of the Services in an unreasonable or unauthorized manner.
7.2 Client Responsibilities. Client will perform the tasks and provide the information, data, assistance and support reasonably necessary for Kingsley to provide the Services and Client’s failure to do so could lead, in Kingsley’s sole discretion, to an increase in Fees applicable to Client or to Kingsley terminating this Agreement or any Client Service Order for material breach by Client.
7.3 Disclaimer of Certain Warranties. Kingsley disclaims any warranty that the Services will be fit for a particular purpose or that they will be merchantable or that the Services will meet Client’s requirements, other than those expressly agreed to by Kingsley in this Agreement.
7.4 Force Majeure. Kingsley will not be liable for any loss or delay resulting from any event that is beyond the reasonable control of Kingsley including acts of God, fire, flood, epidemic, pandemic or quarantine restrictions, catastrophic weather events, other natural disasters, terrorism, war or military hostilities, loss of internet, broadband or Wi-Fi connectivity or services, unexpected scarcity or unavailability of parts or components, inability of carriers to make scheduled deliveries, labor stoppage, strikes, riots, or civil commotion, freight or other embargoes.
7.5 Entire Agreement. This Agreement and the Client Service Orders constitute the entire agreement between the Parties concerning the subject matter hereof and supersede all written or oral prior agreements or understandings. All Client Service Orders are incorporated into this Agreement as if set forth herein in full. In the event of any conflicts between the terms of this Agreement and the terms of any Client Service Order, the terms of this Agreement shall control unless expressly stated otherwise.
8. EARLY TERMINATION.
8.1 Termination for Cause.Either Party may terminate this Agreement for cause if the other Party materially breaches this Agreement and fails to cure or remedy the breach within 30 days of receiving written notice of the breach by the non-breaching Party. Neither Party shall have the opportunity to cure a breach of this Agreement if the other Party reasonably concludes that the breach, by its nature, cannot be cured (e.g. a wrongful disclosure of Confidential Information). If the Agreement is terminated for cause, any Client Service Order in effect will also terminate.
8.2 Obligations of Client on Termination. Upon any termination of this Agreement, Client will remit to Kingsley all unpaid Fees and expenses through the date of termination for each Client Service Order. If Client terminates early other than for cause as described in Section 8.1, Client may be required to pay an early termination fee in the amount set forth in each Client Service Order and to reimburse Kingsley for any expenses or costs already incurred by Kingsley in connection with Services already requested by Client. In addition, upon the conclusion of any Service, Client shall promptly remit all Fees invoiced by Kingsley with respect to such Services per terms in each Client Service Order. Should Client select a multi-year engagement and not fulfill the entire term as described in each Client Service Order, Client will be responsible to repay any discounts.
9. INDEMNIFICATION, LIMITATION OF LIABILITY.
9.1 Indemnification. Each Party will defend, indemnify and hold harmless the other Party, its affiliates and their respective officers, directors, managers, employees, contractors, agents and representatives (“Indemnified Parties”) against all third party claims, allegations, actions, suits, loss, damages, and costs, including attorneys’ fees (“Losses”), arising out of or relating to the indemnifying Party’s uncured material breach of this Agreement. In addition, Client will defend, indemnify and hold harmless Kingsley, its affiliates and their respective officers, directors, managers, employees, contractors, agents and representatives against all Losses arising out of or relating to any Personal Data provided by Client to Kingsley in connection with the Information Services. If any settlement requires an affirmative obligation of, results in any ongoing liability to, or prejudices or detrimentally impacts the indemnified Party in any way, then such a settlement will require the indemnified Party’s prior written consent (not to be unreasonably withheld or delayed), and the indemnified Party may have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim.
9.2 Limitation of Liability. Neither Party shall be liable for any loss of business, potential business, revenues or profits, or for any consequential, incidental, punitive or similar damages for any cause whatsoever, regardless of the form of action, whether in contract or in tort, including negligence, even if the Party has been advised of the possibility of these types of damages. In no event will Kingsley’s aggregate liability under this Agreement exceed the amount actually paid to Kingsley by Client under this Agreement during the 12 months immediately preceding the date on which the claim or liability or Loss accrued.
10. GOVERNING LAW AND VENUE.
10.1 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Georgia, without giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. Any action seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement may only be brought in the Superior Court of Fulton County, Georgia or in the United States District Court, Northern District of Georgia.
10.2 Attorney Fees and Remedies. The prevailing Party in any legal action arising in connection with this Agreement will be entitled to recover its reasonable attorney fees (including, if applicable, charges for in-house counsel), court costs and other legal expenses from the other Party. Except as is otherwise expressly provided in this Agreement, the Parties’ remedies either under this Agreement or applicable law are cumulative.
11. GENERAL.
11.1 Miscellaneous Provisions. Client may not assign or attempt to assign any of its rights or delegate any of its duties under this Agreement without Kingsley’s prior written consent. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties’ successors and assigns. The relationship between the Parties created by this Agreement is that of independent contractor and not partners, joint ventures, agents or employees. There are no third party beneficiaries under or in connection with this Agreement. This Agreement may be executed simultaneously in multiple counterparts. This Agreement is the exclusive and entire agreement between the Parties with respect to its subject matters and supersedes all prior or contemporaneous agreements, negotiations, representations and proposals, written, oral, electronic or web-based relating to its subject matter. No modification or waiver of any breach of this Agreement will be effective unless in writing and signed by an authorized Representative of the Party against whom enforcement is sought. No waiver of any breach of this Agreement and no course of dealing between the Parties will be construed as a waiver of any subsequent breach of this Agreement. All notices pursuant to this Agreement, will be deemed sufficiently given in writing if personally delivered or mailed by certified or first class mail or a nationally recognized courier to a Party at its address set forth on the cover page to this Agreement, or at such other address as a Party may from time to time specify by written notice to the other Party. Emailed notices are also sufficient to meet the notice requirement, provided that the recipient in fact receives the emailed notice. The provisions of this Agreement are severable. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions will in no way be affected or impaired thereby. The Parties will execute and deliver such other instruments and documents, and take such other actions, as either Party reasonably requests to evidence or effect the transactions contemplated by this Agreement. All provisions of this Agreement that by their nature or terms should continue in effect after termination or expiration of this Agreement shall survive termination or expiration. Each Party represents and warrants to the other Party that it has the corporate authority to enter into and perform its obligations under this Agreement and that the person signing this Agreement on its behalf has the authority to do so.
Effective as of July 1, 2018
