Customer agrees and acknowledges the following “Terms and Conditions” which apply to Customer (“Customer “or “You”) for each use of any services available through the MarkMonitor website.
Services/Projects/Titles: MarkMonitor agrees to provide Anti-Piracy, Security and Business Intelligence Services under the terms and conditions of this agreement and as described in any applicable Estimate.
Payment Terms. Payments shall be made within thirty (30) days after Customer’s receipt of invoice.
Term. Unless otherwise agreed in writing, the term of the Services shall be for a one year period and continue on a month-to-month basis thereafter, unless terminated in writing by a party.
Data. MarkMonitor shall maintain back-up copies of the evidence for as long as reasonably requested in writing by Customer as allowed by the applicable laws. Data will be supplied to Customer by email, on DVD or as otherwise requested by Customer. MarkMonitor ensures that the transport of evidence is done in a manner approved by both Parties. MarkMonitor agrees to process and use the Data solely for the purposes set forth in this Agreement.
Ownership of Titles and Infringing Copies Thereof: As between Customer and MarkMonitor, all right, title and interest in and to the Titles, and any elements thereof, shall remain with Customer.
Ownership of Technology: Customer acknowledges and agrees that, as between the parties, MarkMonitor holds all right, title and interest in and to any technology and software used by MarkMonitor in providing the Services (subject to any third party rights or restrictions), including all applicable rights to patents, copyrights, trademarks and trade secrets inherent therein and appurtenant thereto.
Ownership of Data: As between Customer and MarkMonitor, Customer shall have the ownership to the Data, including all reports prepared by MarkMonitor pursuant to this Agreement. In relation to all Personal Information made available to MarkMonitor by Customer or which MarkMonitor processes on behalf of Customer under this agreement, MarkMonitor shall comply with the applicable data protection laws and regulations.
Unauthorized Use of Services. Customer is responsible for the use of the Services by any employee of Customer, any person to whom Customer have given access to the Services, and any person who gains access to Customer’s data or the Services as a result of Customer’s failure to use reasonable security precautions, even if such use was not authorized by Customer. Customer agrees to assume sole responsibility for the security of any and all passwords issued by MarkMonitor for purposes of accessing the data provided under this Agreement, and shall promptly notify MarkMonitor of the loss or theft of any password.
Indemnification. MarkMonitor shall defend, indemnify and hold harmless Customer, its affiliates, and their respective officers, directors, and employees, from and against any action, suit, claim, damages, liability, costs and expenses (including reasonable attorney’s fees and costs), arising out of (i) MarkMonitor’s intentional or gross negligence or willful misconduct relating to the terms of this Agreement or the Services provided hereunder; or (ii) any claim that the Services infringe any U.S. patents, trade secrets, copyrights, trademarks or any other rights, including privacy rights, of any third party. MarkMonitor’s indemnification obligations, as set forth herein, shall survive the termination of this Agreement.
Customer shall defend, indemnify and hold harmless MarkMonitor, its affiliates and their respective officers, directors, and employees, from and against any action, suit, claim, damages, liability, costs and expenses (including reasonable attorney’s fees and costs), arising out of (i) Customer’s intentional or grossly negligent misrepresentation of fact or data relating to the terms of this Agreement or the Services provided hereunder; (ii) any claim that the materials or records supplied to MarkMonitor by Customer infringe any U.S. copyright, trademark, patent or trade secret rights of any third party on account of the use or possession of said materials or records by MarkMonitor as contemplated within the course and scope of MarkMonitor Services under this Agreement; or (iii) any claim arising from MarkMonitor undertaking any action contemplated within the course and scope of the Services under this Agreement. Customer’s indemnification obligations, as set forth herein, shall survive the termination of this Agreement.
If either Party receives notice of a claim that is covered by this Section, such notice must be promptly forwarded to the financially responsible Party. The Party against whom the claim is made will be allowed to choose legal counsel to defend it and to make decisions regarding the defense of the claim, provided that these decisions are reasonable and are promptly communicated to the financially responsible Party. The Party against whom the claim is made may not settle the claim without the consent of the financially responsible Party, although such consent may not be unreasonably withheld.
Governing Law. The Agreement is governed by the laws of the State of California, exclusive of its choice of law principles, and the laws of the United States of America.
Notices. Notices hereunder regarding any non-routine legal matter (such as breach, indemnification, termination or arbitration) shall be in writing and deemed sufficient and received if delivered in person or when sent via pre-paid overnight courier or Certified Mail, to the address of the party set forth in the Estimate or Order.
No Waiver of Breach: Any waiver, express or implied, or any other failure to exercise a right (including any termination right) or insist on a condition, by either Customer or MarkMonitor with respect to any breach of any of the provisions of this Agreement shall not operate as a waiver of such right or as a waiver in respect of any subsequent breach of any of the provisions of this Agreement.
Force Majeure: Neither Party will be responsible for delays or failure to perform its respective duties and obligations hereunder when those delays or failures result from reasons outside its reasonable control (a “Force Majeure”). Each Party shall notify the other as soon as practicable of the occurrence of any such Force Majeure and shall continue to make commercially reasonable efforts to comply with the terms of this Agreement. The time for performance of this Agreement shall be extended for a period equal to the duration of any such Force Majeure.
When using the Anti-Piracy Service, Customer will (and Customer represents and warrants that it will) comply with: (i) the General Data Protection Regulation (2016/679) and any national laws made pursuant to it; and (ii) any other similar national privacy law (together, the “Data Protection Legislation“) in respect of its processing of any personal data (as such term is defined in Data Protection Legislation) made available by or on behalf of MarkMonitor in connection with the Anti-Piracy Service.
Customer acknowledges that any Whois information may contain personal data and that, to the extent Customer records and uses that personal data, Customer is a separate data controller of that personal data (and not a joint controller).
Customer will only use the Anti-Piracy Service (and any personal data contained in Whois information) for the following “Permitted Purposes“: (i) to investigate IP infringement, fraud and other improper uses of domain names and connected email addresses, as well as to take enforcement action in relation to such infringement, fraud or improper uses; (ii) to identify the entity or individual that “owns” and controls a domain as part of due diligence undertaken in connection with corporate or financial transactions; or (iii) to comply with a requirement forming part of generally accepted principles of good practice for the furtherance of internet security.
Where required by Data Protection Legislation, Customer will carry out a legitimate interests assessment in respect of the processing by it of personal data contained in Whois information (including any such data accessed by Customer in connection with the Anti-Piracy Service), and shall only carry out the processing of such personal data if the assessment confirms that Customer’s processing complies with the Data Protection Legislation.
MarkMonitor makes available a privacy notice for the Anti-Piracy Service available on its website in respect of MarkMonitor’s own processing of personal data.