Data provider agreement
BY SUBMITTING THIS FORM TO TERBINE, YOU (“Provider”) AGREE TO THE FOLLOWING TERMS AND CONDITIONS RELATED TO LICENSING OF YOUR DATA VIA TERBINE.
Data Provider Agreement
This Provider Agreement is entered by and between Terbine, a Nevada corporation, (“Terbine”) and the Provider identified on the order form (“Provider”) effective as of the date the order form below is signed or submitted by Provider. Provider and Terbine agree that the following terms and conditions shall apply to any data, analytics or other information provided by Provider (the “Data”).
1. License. Provider grants Terbine a non-exclusive license to the Data to store, market and distribute the Data, in whole or in part, to users of the Terbine service (the “Service”), including but not limited to the right to grant sublicenses to the Data and to create derivative works of the Data and to sublicense the right to create derivative works of the Data. Provider represents and warrants that it is the sole owner of the Data or otherwise has the right to provide the Data to Terbine pursuant to this Agreement. Provider will use commercially reasonable efforts to provide Data that is accurate and current and to notify Terbine of any errors or omissions. Provider further grants Terbine a limited license to identify Provider as a provider of the Data on Terbine’s website.
2. Ownership. Terbine owns rights to all programming and any collection or compilation of information and data, including but not limited collections or compilations that include the Data. The Service may embody proprietary information of Terbine and third party information providers (“Information Providers”), compiled, selected, and arranged through the exercise of judgment and requiring the expenditure of substantial time, effort, and money by Terbine or the Information Providers. The Service constitutes valuable commercial property and trade secrets of Terbine. Provider will not claim any ownership interest in, or right to use, the Service except as provided herein, nor will it contest Terbine’s ownership rights. Provider further agrees that Terbine will maintain exclusive ownership and rights (including the copyright) in the Service and that this Agreement will not be construed to vest in the Provider any rights with respect to the Service except for Provider’s rights in its underlying Data.
3. Fees. Terbine will pay fees as set forth in the order form. Except as otherwise specified
in the order form, all fees are quoted and payable in United States dollars.
4. Term and Termination.
a. This Agreement shall continue for the term indicated on the order form. If the Agreement is for any term other than a one-time contribution, the Agreement will automatically renew for additional one year terms unless either party provides written notice to the other party not less than thirty (30) days prior to the end of the current term of its intent to terminate this Agreement.
b. Either party may terminate this Agreement or an order form: (i) if the other party is in material breach under this Agreement and fails to cure such breach within thirty (30) days of receipt of written notice of such material breach from the non-breaching party; or (ii) if 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 and such proceeding is not favorably resolved within sixty (60) days.
c. Upon termination of this Agreement, Provider will cease contributing Data and neither party will have any continuing obligation to the other provided that if Terbine terminated the Agreement or an order form other than pursuant to Section 4(b), Terbine will continue to pay fees to Provider pursuant to the terms of an applicable order form. Upon termination of this Agreement for any reason, Terbine will have the right to continue to store, use and distribute any Data provided by Provider prior to termination.
a. Provider shall defend, indemnify and hold Terbine and its officers, directors, employees, agents and permitted assigns (individually or collectively, the “Terbine Indemnified Party”) harmless against any and all liability, damages, costs, expenses, including reasonable legal fees and expenses, for any third party claim against the Terbine Indemnified Party (each, a “Claim”) arising out of or related to (i) any third party claim that the Data infringes any patent, copyright, trade secret, trademark, privacy or other intellectual property right or (ii) violation of any applicable ordinance, statute or rule, regulation or order of any jurisdiction.
b. Terbine shall defend, indemnify and hold Provider and its officers, directors, employees, agents and permitted assigns (individually or collectively, the “Provider Indemnified Party”) harmless against any and all Claims arising out of or related to any third party claim that the Service infringes any patent, copyright, trade secret, trademark, privacy or other intellectual property right.
c. The Indemnified Party(ies) shall provide written notice to the indemnifying party promptly after receiving notice of such Claim. If the defense of such Claim is materially prejudiced by a delay in providing such notice, the purported indemnifying party shall be
relieved from providing such indemnity to the extent of the delay’s impact on the defense. The indemnifying party shall have sole control of the defense of any indemnified Claim and all negotiations for its settlement or compromise, provided that such indemnifying party shall not enter into any settlement which imposes any obligations or restrictions on the applicable Indemnified Parties without the prior written consent of the other party. The Indemnified Parties shall cooperate fully, at the indemnifying party’s request and expense, with the indemnifying party in the defense, settlement or compromise of any such action. The indemnified party may retain its own counsel at its own expense, subject to the indemnifying party’s rights above.
6. Limitation of Liability. TERBINE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICE AND HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, GUARANTIES AND REPRESENTATIONS RELATING TO THE SERVICE, EXPRESS OR IMPLIED, ORAL OR IN WRITING, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WHETHER OR NOT ARISING THROUGH A COURSE OF DEALING. THE SERVICE IS NOT GUARANTEED TO BE ERROR-FREE OR UNINTERRUPTED. IN NO EVENT SHALL TERBINE OR ITS
INFORMATION PROVIDERS BE LIABLE TO Provider OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES OR FOR ANY LOST PROFITS OR REVENUES OR LOST DATA, HOWEVER CAUSED, ARISING FROM OR RELATED TO THE SERVICES OR THE AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH
LIABILITY IS ASSERTED OR IF TERBINE HAD BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR DAMAGE.
7. Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof.
8. Governing Law. This Agreement shall be construed in accordance with, and governed by, the laws of the State of Nevada, without regard to the application of conflicts of law principles.
9. Entire Agreement. This Agreement constitutes and expresses the entire agreement and understanding between the parties hereto with respect to the subject matter, all discussions, promises, representations, and understandings relative thereto, if any, being herein merged. The parties agree that if the Agreement is accepted by the parties and that acceptance is delivered via fax or electronically delivered via email or the internet it shall constitute a valid and enforceable agreement.
10. Notices. All notices and communications under this Agreement shall be in writing and shall be delivered in person, faxed, emailed or mailed by certified mail, return receipt requested, postage prepaid, by overnight express carrier, to the address of the parties listed in the order form, or to any other address as such party shall designate in a written notice to the other party hereto. All notices sent pursuant to the terms of this section shall be deemed received (i) if personally delivered, emailed or faxed, then on the date of delivery; (ii) if sent by overnight express carrier, on the next business day immediately following the day sent; and (iii) if sent by
mail, three (3) days after mailing.
11. Dispute Resolution. The parties intend to negotiate in good faith and resolve any dispute arising under this Agreement. Any disputes between the parties arising out of or related to this Agreement shall be filed in the state or federal courts located in Las Vegas, Nevada, and the parties specifically consent to the personal jurisdiction thereof for the purposes of resolving such disputes. The prevailing party in any litigation shall be entitled to recover from the other party its reasonable attorneys’ fees (as determined by a court and not a jury) and related costs and expenses incurred as a result of the litigation in addition to such other relief as may be granted.
12. Assignment. Provider shall not assign or transfer, or purport to assign or transfer, any of its rights or obligations under this Agreement without the prior written consent of Terbine. Except as set forth in this Section, this Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the respective parties hereto.
13. Force Majeure. Neither Party shall be responsible for any failure to perform or delay in performing any of its obligations under this Agreement where and to the extent that such failure or delay results from an unforeseeable event beyond a party’s reasonable control, including but not limited to, acts of war; acts of nature; earthquake; flood; embargo; riot; sabotage; labor shortage or dispute; changes in government codes, ordinances, laws, rules, regulations or restrictions; failure of the Internet; terrorist acts; failure of data, products or services controlled by any third party, including the providers of communications or network services; utility power
failure; material shortages or unavailability or other delay in delivery not resulting from the responsible party’s failure to timely place orders therefor, or lack of or delay in transportation.
IN WITNESS WHEREOF, the parties have caused this Provider Agreement to be executed and effective as of the date submitted electronically below.