DISTRIBUTION RIGHTS, REPRINT AND WEB REPUBLISH LICENSING TERMS AND CONDITIONS
These terms and conditions (“Terms”) explain how you can republish one or more of the Material Contents of authorship (the “Material Content”) that you license from APU Commercial Information Systems ("APU") or an authorized distributor of the APU products and/or services, hosted on Monitor Nexus Cloud platforms (the "Cloud Platform") or on-premises ("Self-Hosting"), you (the "Customer") are agreeing to be bound by the following terms and conditions (the "Agreement"), as described in more detail on the accompanying order confirmation (“Order Confirmation”). These Terms and the Order Confirmation (collectively, this “Agreement”) comprise the entire license agreement for the Material Content between you and APU.
1.1. Grant of Rights
Subject to the terms and conditions of this Agreement, APU hereby grants you a worldwide, non-exclusive], non-transferable, non-sublicensable license solely to reproduce, display, transmit, distribute, the Material Content for the Purpose through the Media and Format and subject to the Additional Details as defined in the Order Confirmation.
1.2. Third-Party Rights
Notwithstanding any other provisions of this Agreement to the contrary, nothing in this Agreement will be deemed to be a grant by APU of a license, sublicense, or other grant of a right to you to use any third-party rights or any rights under any third-party license that cannot be licensed, sublicensed, or granted without the consent, approval, or agreement of another party, unless such consent, approval, or agreement is first obtained by you.
1.3. Reservation of Rights
APU reserves all rights not expressly granted to you under this Agreement. No use by APU of the Material Content in any medium or manner will be deemed to interfere with the limited permissions made to you by APU herein.
2. Usage of the Material Content
Notwithstanding any other provision to the contrary contained in this Agreement:
2.1. Copyright Notices
You shall ensure that your use of the Material Content is marked with the appropriate copyright notices specified by APU in a prominent position in the order and manner provided by APU. Unless otherwise provided in the Order Confirmation, a proper copyright notice will read substantially as follows:
“© 2019 Monitor Nexus Intelligence. Republished with permission of APU Commercial Information Systems. For more information, please visit www.apucis.com. All rights reserved.”
Such notice must be provided in a reasonably legible font size and must be placed either immediately adjacent to the Material Content as used (for example, as part of a by-line or footnote but not as a separate electronic link) or in the place where substantially all other credits or notices for the new Material Content containing the republished Material Content are located. You shall abide by all of the copyright laws and what are considered to be sound practices for copyright notice provisions. You shall not use any copyright notices that conflict with, confuse, or negate the notices APU provides and requires hereunder.
The Material Content may be displayed or used only the form and manner specifically approved in this Agreement or in writing by APU in advance.
You may only make modifications to the Material Content if and as expressly set forth in the Order Confirmation. No Material Content may be used in any way that is defamatory, violates the rights of third parties (including such third parties’ rights of copyright, privacy, publicity, or other tangible or intangible property), or is otherwise illegal, sexually explicit or obscene. You shall not combine the Material Content with any other material that may result in damage to the reputation of APU.
As consideration in full for the rights granted herein, you shall pay APU the fee specified in the Order Confirmation.
4. Ownership and Protection
4.1. Acknowledgment of Ownership
Except for the licenses expressly granted to you in this Agreement, you acknowledge that all right, title, and interest in and to the Material Content are owned by APU. If you acquire any rights in the Material Content by operation of law or otherwise, you hereby irrevocably assign such rights to APU without further action by either party. You agree not to dispute or challenge or assist any person or entity in disputing or challenging APU’s rights in and to the Material Content.
4.2. Protection of the Material Content
(a) Notification: You shall, at your sole expense, maintain any copies of the Material Content within your possession, custody, or control under first-class conditions and shall take all then-available measures to protect and safeguard the Material Content. You shall immediately notify APU in writing with reasonable detail of any: (i) actual, suspected, or threatened infringement of the Material Content; (ii) actual, suspected, or threatened claim that use of the Material Content infringes the rights of any third party; or (iii) any other actual, suspected, or threatened claim to which the Material Content may be subject.
(b) Actions: With respect to any of the matters listed in Section 4.2(a): (i) APU has exclusive control over, and conduct of, all claims and proceedings; (ii) you shall provide APU with all assistance that APU may reasonably require in the conduct of any claims or proceedings; and (iii) APU shall bear the cost of any proceedings and will be entitled to retain all sums recovered in any action for its own account.
4.3. Representations and Warranties
You represent and warrant that:
(a) you have the full right, power, and authority to enter into this Agreement and to perform your obligations hereunder;
(b) you have been duly authorized by all necessary organizational, if applicable, to execute this Agreement;
(c) when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation enforceable against you in accordance with its terms;
(d) you will not engage or participate in any activity or course of action that could diminish or tarnish the image or reputation of the Material Content or APU, or cause confusion as to the ownership of the Material Content; and
(e) your use of the Material Content will not infringe, misappropriate, or otherwise violate the intellectual property or other rights of any third party or violate any applicable regulation or law.
4.4. Disclaimer of Representations and Warranties
THE MATERIAL CONTENT AND THIS LICENSE ARE PROVIDED “AS IS”. APU EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED PROPERTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. ADDITIONAL LICENSES MAY BE REQUIRED TO USE ILLUSTRATIONS, GRAPHS, PHOTOGRAPHS, ABSTRACTS, INSERTS OR OTHER PORTIONS OF THE MATERIAL CONTENT (AS OPPOSED TO THE ENTIRE MATERIAL CONTENT); YOU UNDERSTAND AND AGREE THAT APU MAY NOT HAVE SUCH ADDITIONAL LICENSES TO GRANT.
You shall indemnify, defend, and hold harmless APU and its officers, directors, employees, agents, affiliates, successors, assigns, (each an “Indemnified Party”) from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or in connection with any third-party claim, suit, action, or proceeding (each a “Third-Party Claim”) relating to (a) any use of the Material Content that has been modified or altered, including claims of defamation, infringement of publicity or publicity, or intellectual property infringement; and (b) any actual or alleged breach by you of its representations, warranties, covenants, or other obligations hereunder.
5.2. Indemnification Procedure
APU will notify you upon becoming aware of a Third-Party Claim under this Section 5.2. You shall promptly assume control of the defense and investigation of such Third-Party Claim, with counsel reasonably acceptable to APU, and APU shall reasonably cooperate with you in connection therewith, in each case, at your sole cost and expense.
APU may participate in the defense of such Third-Party Claim, with counsel of its own choosing and at its own cost and expense. You shall not settle any such Third-Party Claim on any terms or in any manner that adversely affects the rights of APU without APU’s prior written consent. If you fail or refuse to assume control of the defense of such Third-Party Claim, APU has the right, but no obligation, to defend against such Third-Party Claim, including settling such Third-Party Claim after giving notice to you, in each case, in such manner and on such terms as APU may deem appropriate. Neither APU’s failure to perform any obligation under this Section 5.2 nor APU’s act or omission in the defense or settlement of any such Third-Party Claim will relieve you of your obligations under this Section 5.2, except to the extent that you can demonstrate that it has been materially prejudiced as a result thereof.
6. Term and Termination
The term of this Agreement commences as of the date specified in the Order Confirmation unless terminated earlier as provided herein (the “Term”).
APU shall have the right to terminate this Agreement immediately by giving written notice to you if: (a) you fail to pay any amount due under this Agreement when due; (b) you breach this Agreement (other than failure to pay any amounts due under this Agreement), in whole or in part; (c) you (i) become insolvent or admit your inability to pay your debts generally as they become due; (ii) become subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 60 days after filing; (iii) your organization is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; (d) you challenge the validity or APU’s ownership of the Material Content; or (e) there is a change in control of your organization.
6.3. Effect of Termination
Upon the expiration or termination of this Agreement for any reason, all rights licensed under this Agreement will revert immediately to APU and you shall cause to be inactivated and erased all digital copies of the Material Content in its control and possession and return or, at APU’s written request, destroy, any tangible copies of the Material Content. Upon APU’s request, you shall provide an affidavit to APU attesting to such erasure or destruction.
6.4. Surviving Rights
Any rights or obligations of the parties in this Agreement which, by their nature, should survive termination or expiration of this Agreement will survive any such termination or expiration, including the rights and obligations set forth in this Section 6 and, Section 3, Section 4, Section 5, Section 7, and Section 8.
7.1. Equitable Relief
You acknowledge that a breach by you of this Agreement may cause APU irreparable damages, for which an award of damages would not be adequate compensation, and agrees that, in the event of such breach or threatened breach, APU will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which APU may be entitled at law or in equity. Such remedies are not exclusive but are in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
7.2. Limitation of Liability
APU WILL NOT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL, OR EXEMPLARY DAMAGES OR PENALTIES, INCLUDING LOSSES OF BUSINESS, REVENUE, ANTICIPATED PROFITS, OR LOSS OF DATA OR DIMINUTION IN VALUE REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER APU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL APU’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU FOR THIS LICENSE. THE FOREGOING LIMITATIONS APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
8.1. Entire Agreement
This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in these Terms and the Order Confirmation, the statements in the Order Confirmation shall control.
The license granted hereunder is personal to You. You shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of APU. Any purported assignment or delegation in violation of this Section 8.2 is null and void. APU may freely assign or otherwise transfer any of its rights or delegate any of its obligations under this Agreement. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
8.3. Confidential Information
All non-public, confidential or proprietary information of APU, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by APU to you, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by APU in writing.
Upon APU’s request, you shall promptly return all documents and other materials received from APU. APU shall be entitled to injunctive relief for any violation of this Section 8.3. This Section 8.3 does not apply to information that is: (a) in the public domain; (b) known to you at the time of disclosure; or (c) rightfully obtained by you on a non-confidential basis from a third party.
8.4. Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party has authority to contract for or bind the other party in any manner whatsoever.
8.5. No Third-Party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any third party any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
8.6. Compliance with Law | Choice of Law; Venue
You shall comply with all applicable laws, regulations and ordinances. You shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out you obligations under this Agreement.
This Agreement and all matters arising out of or relating to this Agreement are governed by the laws of United Arab Emirates, without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. Either party may institute any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or state courts in each case located in United Arab Emirates, and each party irrevocably submits to the jurisdiction of such courts in any legal suit, action, or proceeding.
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, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof, or the exercise of any other right, remedy, power, or privilege.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect the enforceability of any other term or provision of this Agreement, or invalidate or render unenforceable such term or provision in any other jurisdiction.
8.9. Amendment and Modification
No amendment or modification to this Agreement is effective unless it is in writing and signed by an authorized representative of each party.