Standard Data Purchase Agreement

Standard Data Purchase Agreement

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This Narrative Marketplace Data Purchase Agreement (the “Data Purchase Agreement”) sets forth the terms and conditions applicable to Licensed Data purchases between the Party set forth on the Order Approval Page as the Data Seller of the Licensed Data (“Data Seller”) and the Party subscribing to the Licensed Data (“Data Buyer”) through the Narrative Marketplace. Data Buyer and Data Seller may be referred to collectively as the “Parties” or individually as a “Party”.  

Whereas, Data Buyer and Data Seller have both entered into a Master Services Agreement or Narrative Terms of Service (each an “MSA”) with Narrative I/O, Inc. (“Narrative”), which sets forth the terms pursuant to which Narrative provides each Party access to the Narrative Services, and governs each Party’s relationship with Narrative;

Whereas, Data Buyer wishes to purchase from Data Seller, and Data Seller wishes to sell to Data Buyer, certain Licensed Data (defined below); and

Whereas, Data Seller’s offer to sell Licensed Data on the Narrative Marketplace to Data Buyer, and Data Buyer’s offer to purchase Licensed Data on the Narrative Marketplace from Data Seller, as indicated through the Narrative Marketplace’s functionality or as otherwise agreed to between Data Buyer and Data Seller, constitutes each Party’s respective acceptance of, and their entry into, this Data Purchase Agreement, and each Party’s agreement to be bound by the terms hereof.

Now, therefore in consideration of the foregoing and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. Definitions. Unless defined elsewhere in this Data Purchase Agreement, capitalized terms have the meanings set forth below. Any capitalized terms that are not defined in this Data Purchase Agreement shall have the meaning set out in the MSA.

1. “Customer” means Data Buyer’s third party advertising or other customers for whose benefit Data Buyer shall receive or use the Licensed Data.

1. “Data Purchase” means Data Buyer’s license to use the Licensed Data.

1. “Licensed Data” means the data, and any subset thereof, made available for license through the Narrative Marketplace and identified in the applicable Order Approval Page.

1. “Narrative Marketplace” means the marketplace operated by Narrative located at data.narrative.io and app.narrative.io as it may be updated from time to time.

1. “Narrative Services” means the products and/or services, including the Narrative Marketplace, offered by Narrative, as they may be updated from time to time.

1. “Order Approval Page” means the page on the Narrative Marketplace that sets forth the specific terms for a Data Purchase (e.g. price, type of data, term).

1. “User” means an employee or contractor of Data Buyer authorized to access and use the Licensed Data.

1. Data Purchase. Data Seller will supply to Data Buyer the Licensed Data as set forth in the Order Approval Page.   Data Purchases are subject to and governed by the terms of this Data Purchase Agreement, the Order Approval Page, and any amendments to any of the foregoing as may be agreed upon by the Parties, each of which are incorporated herein. In the event of any conflict, the following order of precedence will apply: (1) any amendment agreed upon by the Parties; (2) this Data Purchase Agreement; and (3) the Order Approval Page; provided that none of the foregoing may conflict with any of the terms set forth in the Parties’ Narrative MSA.

1. Authorization.

1. Grant of License.  Subject to and in accordance with the terms hereof and the Order Approval Page, Data Seller hereby grants to Data Buyer a limited, non-exclusive, worldwide, non-transferable, non-sublicensable, royalty-free, revocable license to (a) create reprocessed data, interpretations, and/or analysis based on or incorporating the Licensed Data (collectively, the “Derived Data”); provided further that such Derived Data (i) does not contain all or any substantial part of the original Licensed Data in unaltered form or provided on a stand-alone basis, and (ii) are not capable of being reverse engineered, decompiled, disassembled or otherwise modified to obtain the original, unaltered form of the Licensed Data; and (b) use the Licensed Data and Derived Data for its own internal business, analytical and research purposes, and for the purpose of executing and trafficking campaigns of their own or on behalf of Customers. Unless otherwise specified in writing or on the Order Approval Page, the license term shall be thirty (30) days.

1. Customers and Users. Data Buyer represents and warrants that (a) Data Buyer shall not under any circumstances provide such Customers (or any third party) with any of the Licensed Data, or any portion thereof, in raw data form and (b) Data Buyer shall ensure that it and its Customer’s activities related to the use of such Licensed Data complies with all applicable laws, rules, regulations, directives and guidelines, including without limitation with respect to privacy notices, disclosures, and opt-out requirements. Data Buyer remains responsible for all obligations hereunder arising in connection with all Users’ and Customers’ use and processing of the Licensed Data or any Derived Data and Data Buyer is directly liable for any and all acts and omissions by such Customers or Users to the same degree as if the act or omission were performed by Data Buyer.

1. Restrictions. Data Buyer shall not, and shall not permit any third party to: (a) publish, distribute or provide access of any kind to the Licensed Data or Derived Data to any third party; (b) sell, sublicense, loan, lease, assign, authorize others to access, use, or disclose, or attempt to grant any rights to, the Licensed Data or Derived Data to third parties (including any Customers); (c) except as permitted by law, decompile, reverse engineer, or otherwise attempt to derive source code from the Licensed Data; (d) to the extent the Licensed Data is provided in a manner that does not identify an individual, use the Licensed Data to create, generate, or infer any information relating to the identity of an individual; or (e) use the Licensed data or Derived Data for any purpose not expressly permitted hereunder. Data Buyer will not remove, delete or alter any trademarks, copyright notices, or other proprietary rights notices of Data Seller or its licensors, if any.

1. Proprietary Rights. As between the parties, Data Seller owns and will retain all right, title and interest, including all proprietary rights therein, in and to the Licensed Data. Except for the Licensed Data that may be included in Derived Data, Data Buyer shall own all right, title and interest in and to the Derived Data, including all proprietary rights therein.

1. Limited Warranty;  Disclaimer.  

1. Limited Warranty.  Data Seller represents and warrants to Data Buyer that (a) it has secured all necessary rights, permissions and consents in the Licensed Data as may be necessary to permit the access, use and distribution thereof as contemplated by the Agreement; (b) Data Seller, or the entity that collected Licensed Data if Data Seller did not itself collect such Licensed Data, has obtained legally compliant consent to the collection, use and disclosure of such information to allow Narrative, the Data Buyer and any Customer to process and use such Licensed Data as permitted by this Data Purchase Agreement;  (c) Data Seller shall have, and comply with, an easily accessible privacy policy, the presentation, posting and content of which shall comply with all applicable laws, rules, regulations, directives and guidelines that accurately discloses how Data Seller collects, uses, and shares data.

1. Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.1, THE LICENSED DATA IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES, REPRESENTATION OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF  MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, AND DATA SELLER HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. Data Seller does not warrant: (a) that the Licensed Data will meet Data Buyer’s requirements; or (b) that the Licensed Data will be accurate, complete, or up-to-date.

1. Confidentiality.

1. Confidential Information. “Confidential Information” means any nonpublic information directly or indirectly disclosed or made accessible by one Party (“Discloser”) to the other (“Receiver”) pursuant to this Data Purchase Agreement that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Licensed Data will be the Confidential Information of the Data Seller. Confidential Information will not include any information which: (a) was or becomes publicly known through no fault of Receiver; (b) is in the possession of Receiver, without restriction, at the time of disclosure by Discloser; (c) was rightfully received, without restriction, from a third party (who does not have an obligation of confidentiality); (d) is developed by Receiver independently from this Data Purchase Agreement and without use of or reference to Discloser’s Confidential Information; or (e) was required by law or regulation to be disclosed by Receiver to the extent so disclosed. Except for rights expressly granted in this Data Purchase Agreement, each Party reserves all rights in and to its Confidential Information.

1. Obligations. Receiver agrees not to use or disclose the Confidential Information. Receiver agrees to safeguard the Confidential Information against unauthorized use or disclosure with means at least as stringent as those it uses to safeguard its own confidential information, and in no event with less than reasonable means.  Receiver will promptly notify Discloser if it becomes aware of any unauthorized use or disclosure of the Confidential Information, and reasonably cooperate with Discloser in attempts to limit disclosure. If and to the extent required by law, Receiver may disclose or produce Confidential Information but will give reasonable prior notice (and where prior notice is not permitted by applicable law, notice will be given as soon as Receiver is legally permitted) to Discloser to permit Discloser to intervene and to request protective orders or confidential treatment therefor or other appropriate remedy regarding such disclosure.

1. Limitations of Liability.  IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS DATA PURCHASE AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NEITHER PARTY’S AGGREGATE LIABILITY UNDER THIS DATA PURCHASE AGREEMENT, WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT, OR OTHER LEGAL THEORY, SHALL EXCEED THE DATA BUYER SPEND IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE DAMAGES. “DATA BUYER SPEND” MEANS THE AGGREGATE OF ALL FEES AND OTHER AMOUNTS PAID AND PAYABLE BY DATA BUYER TO DATA SELLER UNDER THE APPLICABLE ORDER APPROVAL PAGE. THE EXCLUSIONS OF OR LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION WILL NOT APPLY TO (A) DAMAGES OR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, (B) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, OR (C) A PARTY’S BREACH OF THE CONFIDENTIALITY REQUIREMENTS HEREUNDER.

1. Indemnification.

1. Indemnity. Each Party (“Indemnifying Party”) will, at its expense, indemnify, defend and hold harmless the other and its affiliates and each of their respective officers, directors, employees, agents, representatives, successors, and assigns (collectively “Indemnified Parties”) from and against any and all claims brought by a third party, and any and all associated liabilities of whatever kind, including reasonable attorneys’ fees (“Claims”), to the extent arising out of or relating to the Indemnifying Party’s performance or failure to perform as required under this Data Purchase Agreement.

1. Process. The Indemnified Parties will give the Indemnifying Party sole control over the defense and/or settlement of each Claim (subject to the provisions of this Section 8.2 (Process)), prompt notice of each Claim for which it seeks indemnification, provided that failure or delay in providing such notice will not release the Indemnifying Party from any obligations hereunder except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Parties will give the Indemnifying Party their reasonable cooperation in the defense of each Claim for which indemnity is sought, at the Indemnifying Party’s expense. The Indemnifying Party will keep the Indemnified Parties informed of the status of each Claim. Notwithstanding anything to the contrary, an Indemnified Party may participate in the defense at its own expense. The Indemnifying Party will not enter into any settlement without the Indemnified Parties’ prior written consent. The Indemnifying Party will ensure that any settlement into which it enters for any Claim is made confidential, except where not permitted by applicable law.

1. Term.  
   
   1. Termination.  This Data Purchase Agreement will continue in full force and effect for the term set forth in the Order Approval Page. Either Party may terminate this Data Purchase Agreement if the other Party materially breaches this Data Purchase Agreement and does not cure the breach within thirty (30) calendar days following its receipt of written notice of the breach from the non-breaching Party. Data Seller may also suspend or terminate Data Buyer’s access to the Licensed Data without refund of fees: (a) if required to comply with any applicable law or requests of governmental entities; (b) if Data Buyer does not cooperate with any reasonable investigation by Data Seller of a suspected breach of this Data Purchase Agreement; and (c) if Data Seller determines that suspension is necessary to prevent or mitigate damage to Data Seller or its contractors.
   2. Effect of Termination.  No later than thirty (30) days after the end of the applicable subscription period for a Licensed Data set (usually thirty (30) days after delivery, unless otherwise expressly set forth by the Data Seller), Data Buyer represents and warrants that it will cease, and shall ensure that all Customers cease, using the applicable Licensed Data in any manner and for any purposes, and shall delete or destroy such Licensed Data in accordance with its customary data retention practices.  All other provisions of this Data Purchase Agreement that may reasonably be interpreted or construed as surviving expiration or termination of this Data Purchase Agreement, will survive the expiration or termination of this Data Purchase Agreement for any reason.

1. Payment.  All payments of Data Purchases by the Parties will be made through the Narrative Services and in accordance with the MSA and the applicable Order Form and Addenda.

1. General.

1. Applicable Law. This Data Purchase Agreement will be governed and interpreted under the laws of the State of New York, excluding its principles of conflict of laws. The Parties agree that the exclusive forum for any action or proceeding will be in the Borough of Manhattan, New York, and the Parties consent to the jurisdiction of the state and federal courts located in the Borough of Manhattan, New York.

1. Assignment. Neither Party may assign or transfer this Data Purchase Agreement without the prior written consent of the other Party. Any attempted assignment, transfer, or delegation in contravention of this Section 11.2 (Assignment) will be null and void. This Data Purchase Agreement will inure to the benefit of the Parties hereto and their permitted successors and assigns.
2. Entire Agreement. This Data Purchase Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof, and there are no other representations, understandings or agreements between the Parties relating to the subject matter hereof. This Data Purchase Agreement is solely between Data Buyer and Data Seller. Neither Narrative I/O, Inc. nor any of its affiliates are a party to this Data Purchase Agreement and none of them will have any liability or obligations hereunder. The terms and conditions of this Data Purchase Agreement will not be modified without signed consent of both Parties.

1. Notices. Notice under this Data Purchase Agreement must be given in writing. Each Party consents to receiving electronic communications and notifications from the other Party by email.

1. Nonwaiver. Any failure or delay by either Party to exercise any right under this Data Purchase Agreement will not be deemed a waiver of any such right. No such waiver will be valid unless executed in writing by the Party making the waiver.

1. Publicity. Neither Party will issue any publicity materials or press releases that refer to the other Party or use any trade name, trademark, service mark, or logo of the other Party in any advertising, promotions, or otherwise, without the other Party’s prior written consent.

1. Relationship of Parties. The relationship of the Parties will be that of independent contractors, and nothing contained in this Data Purchase Agreement will create or imply an agency relationship between Data Buyer and Data Seller, nor will this Data Purchase Agreement be deemed to constitute a joint venture or partnership or the relationship of employer and employee between Data Buyer and Data Seller. Neither Party will have the authority to make commitments or enter into contracts on behalf of, bind, or otherwise oblige the other Party.

1. Severability. If any term or condition of this Data Purchase Agreement is to any extent held invalid or unenforceable by a court of competent jurisdiction, the remainder of this Data Purchase Agreement will not be affected thereby, and each term and condition will be valid and enforceable to the fullest extent permitted by law.

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