Newsdesk EULA

NEWSDESK END USER LICENSE AGREEMENT (Canada)

Definitions
In this Agreement (except where the context otherwise requires) the following terms shall have the following meanings:

1.1    “Access Link” means a link from which access to discrete, full-text articles and materials available through the Newsdesk Services including without limitation, the LN Supplied Content and the Web Content, may be accessed from the Newsdesk Services or such other services provided by LN under this Agreement (as it may be amended).  Access Links are developed by LN or Moreover and provided to Customer and Customer shall not modify any Access Link.

1.2    “Customer Provided Content” means content owned by Customer or licensed to Customer by other third party suppliers to Customer, other than LN Licensed Content, which Customer makes available through the Newsdesk Services or such other services provided by LN under this Agreement (as it may be amended).  

1.3    “Customer’s Intranet Website” means Customer’s internal website accessible only to Customer’s employees, temporary employees and/or contractors.  No other parties shall have access to the Intranet Website.

1.4    “Effective Date” means the date set out on the first page of this Agreement upon which the Services provided to the Customer pursuant to this Agreement commence.

1.5    “Fees” means all fees to be paid by Customer to LN as set forth in subscription agreement.

1.6    “Initial Term” means the initial term set forth in subscription agreement.

1.7    “Intellectual Property Rights” means all copyright and other intellectual property rights, however arising and in whatever media, whether or not registered or capable of registration, including (without limitation) patents, trademarks, service marks, trade names, design rights, database rights and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world.

1.8    “LN Supplied Content” means content from the online services available from LN which is selected by LN in its sole discretion and made available by LN under this Agreement for use by Customer solely as specified in this Agreement; LN Supplied Content, as of the Effective Date, is identified in the subscription agreement.  


1.9    “Marks” means trademarks, service marks, trade dress, logos, trade names internet domain names, designs and slogans pertaining to LN, Newsdesk and Newsletter.

1.10    “Newsdesk Reader Service” means the LN service which is designed to enable Newsdesk Users to make a limited number of select articles from LN available to Reader Users on Customer’s Intranet Website or via the Newsletter Feature.  

1.11    “Newsdesk Services” means a news portal interface that combines news search tools and e-mail alerts and other services selected by Customer on Schedule A as well as any other services which may be included under this Agreement by Addendum from time to time, together with the Newsdesk Supplied Content and access to Web Content and Customer Provided Content, if any, and the related Access Links made available to Customer by LN under this Agreement.

1.12    “Newsdesk Supplied Content” means that (i) LN Supplied Content, (ii) other content licensed by third party content providers to Moreover and (iii) content developed by or for Moreover.  Newsdesk Supplied Content may be deleted, modified, added to, replaced or otherwise changed by LN as it may determine.

1.13    “Newsdesk User” means a user that is an Authorized User of the Newsdesk Services under the Agreement; Newsdesk Users select the Newsdesk Supplied Content, Web Content and Customer Provided Content to be displayed to the Reader Users through Customer’s Intranet Website or through the other distribution features set forth in this Amendment.

1.14    “Newsletter Feature” means the Newsdesk Reader Service feature which allows the Newsdesk Users to select Documents to be included in an electronic newsletter (directly or through Access Links) (the “Newsletter”) which will be emailed to the Reader Users from LN to the email addresses provided by the Newsdesk Users.  Customer and the Reader Users are prohibited from further forwarding or distributing the Newsletters or Documents included therein.

1.15    “Reader License” means a license granted by LN that authorizes a Newsletter Reader User to view, via an Access Link, the full-text of articles referenced in a Citation provided to such Newsletter Reader User in the Newsdesk Reader Service, but does not permit the Newsletter Reader User to conduct searches in the Newsdesk Services or otherwise.

1.16    “Reader Users” must be employees of Customer, Customer’s temporary employees, and Customer’s contractors for which Customer has purchased a Reader License under this Amendment.

1.17    “Renewal Term” means a period commencing after the Initial Term pursuant to the provisions of the subscription agreement.

1.18    “Source Addition” means a specific source of content that Customer requests that LN establish as a Source Site and which LN agrees in writing to provide.

1.19    “Source Article” means any content (including without limitation text and graphics) that is accessible via a Access Link.

1.20    “Source URL” means the URL for a single page on a web site where a Source Article is published.

1.21    “Term” means the Trial Period, the Initial Term and any subsequent Renewal Term(s).

1.22    “Web Content” means any content, including online news articles and press releases, web posting by third parties relating to a Source Article and/or Source URL which are accessible through the Newsdesk Services for display generally via an Access Link.

2    Use of Newsdesk Services

2.1    Newsdesk

2.1.1    For the purposes of this Agreement LN shall provide access to Customer to Newsdesk Services and hereby grants Customer a nonexclusive, nontransferable, limited right to access and use the Newsdesk Services for research purposes.  Newsdesk Users may use the Newsdesk Service; Reader Users may only use the News Reader Service

2.2    Newsletter Feature

2.2.1    LN grants Customer and its Reader Users the right to access and use the Newsdesk Reader Service and the right use the Newsdesk Supplied Content through the functionality of the Newsdesk Reader Service on the terms set forth in this Agreement.  The Newsdesk Supplied Content may be displayed for each Newsletter Reader User’s individual use only and not for further distribution, dissemination, or display except as expressly provided herein.  Customer’s Newsdesk Users will choose the Newsdesk Supplied Content for display on Customer’s Intranet Website and through other features of the Newsdesk Reader Service as authorized by this Agreement, including, without limitation, emailing Access Links to Documents to Reader Users, which Access Links will direct the Newsletter Reader User to LN to view the full text of Documents from LN Supplied Content and otherwise distributing documents to Reader Users via Newsletter.  Customer’s Newsdesk Reader Users may view Newsdesk Supplied Content displayed on Customer’s Intranet Website or disturbed to the Newsdesk Reader Users electronically through the functionality of the Newsdesk Reader Service.

2.2.2    Customer acknowledges and agrees that it is responsible for use of the Newsdesk Reader Service by any such temporary employees and contractors to the same extent as if they were employees.  For the avoidance of doubt, “Reader Users” shall only include temporary employees and contractors who are performing work solely for Customer’s internal use.  “Reader Users” shall not include customers or external professional service providers such as attorneys, accountants, public relations firms and like organizations.

2.3    Delivery; Authorized Users

2.3.1    LN shall provide the Newsdesk Services to Customer via the LN.com web site or such other web site as may be specified by LN from time-to-time.

2.3.2    Only Customer’s employees, temporary employees, partners/members, and contractors performing work exclusively for Customer (to the extent those categories of persons are appropriate to Customer’s situation) are eligible to access and use the Newsdesk Services (“Eligible Persons”).  Without limitation, external professional service providers such as attorneys, accountants, outsourcers, and public relations firms are specifically excluded from being Eligible Persons.  The term “Authorized Users” means an Eligible Person whom Customer has identified to LN as a Newsdesk User or a Reader User for purposes of issuing an LN ID.  Customer agrees that each ID issued by LN for use of Newsdesk Services (“LN ID”) may only be used by the Authorized User to whom LN assigns it and that the LN ID may not be shared with or used by any other person, including other Authorized Users.  Customer will manage its roster of Authorized Users and will promptly notify LN to deactivate an Authorized User’s LN ID if the Authorized User is no longer an Eligible Person or Customer otherwise wishes to terminate the Authorized User’s access to the Newsdesk Services.  Customer is responsible for all use of the Newsdesk Services accessed with LN IDs issued to Customer’s Authorized Users, including associated charges, whether by Authorized Users or others.  Customer will use reasonable commercial efforts to prevent unauthorized use of LN IDs assigned to its Authorized Users and will promptly notify LN, in writing, if Customer suspects that an LN ID has been lost, stolen, compromised, or misused.

2.3.3    You may not access or otherwise use the Online Services if you are identified on, and you may not provide access to the Online Services to any individuals identified on, OFAC’s list of Specially Designated Nationals, the UK’s HM Treasury’s Consolidated List of Sanctions Targets, or the EU’s Consolidated List of Persons, Groups, and Entities Subject to EU Financial Sanctions.

2.4    Conditions and Limitations on the Use of Newsdesk Services.  Customer’s use of the Newsdesk Services is subject to the following restrictions:

2.4.1    The rights set out herein are limited to the use of Newsdesk Services for Customer internal operations.   Any additional services must be requested by Customer from LN. LN shall be entitled to withhold its consent to any such request in its sole discretion. Any further services LN agrees to provide shall be on LN's standard terms and conditions, as amended from time to time.

2.4.2    If Customer chooses for its Newsdesk Users to distribute LN Supplied Content to other users, such other users must be Reader Users and such distribution must be through the Newsdesk Reader Service.

2.4.3    Customer may use Newsdesk Supplied Content as permitted by applicable copyright law; provided that downloading and storing any Newsdesk Supplied Content accessed through the Newsdesk Services in an archived database is prohibited.

2.4.4    Content accessed through Newsdesk Services, including the LN Supplied Content may be retrieved by means of a periodic search (e.g., daily weekly, hourly depending upon how it is set up).  The language of the periodic search(s) will be selected by Customer but the language of all searches must be topical in nature and must be designed to return a limited number of select articles from various sources available through the Newsdesk Services.  The periodic searches may not be designed to retrieve the entire issues or substantially the entire issue of any publication.

2.4.5    All right, title, and interest (including all copyrights, trademarks and other intellectual property rights) in the Newsdesk Services and Newsdesk Supplied Content in any medium belongs to LN or its third party suppliers.  Neither Customer nor its Authorized Users acquire any proprietary interest in the Newsdesk Services other than the limited rights expressly granted in this Agreement.

2.4.6    Neither Customer nor its Authorized Users may use the Newsdesk Services in any fashion that infringes the Intellectual Property Rights or proprietary interests of LN or any third party.  Customer’s use of the Newsdesk Services and Newsdesk Supplied Content must comply with all applicable laws, rules or regulations.

2.4.7    Neither Customer nor its Authorized Users may remove or obscure the copyright notice or other notices contained in Newsdesk Supplied Content.

2.4.8    Use of the Newsdesk Services via mechanical, programmatic, robotic, scripted or any other automated means is strictly prohibited.  Unless otherwise agreed to by LN in writing, use of the Newsdesk Services is permitted only via manually conducted, discrete, individual search and retrieval activities.

2.4.9    Customer shall not remove or alter any element of any Access Link, including without limitation any text and shall display each Access Link
unmodified and as a hyperlink to the relevant Source URL.
2.4.10    Except as described above, Customer will have no right to access, reproduce, modify, distribute or otherwise use the Access Links, the Newsdesk Services or the LN Supplied Content.  

3    Intellectual Property Rights

3.1    Retention of Rights.  Subject to the limited right to use the services provided to Customer pursuant to this Agreement, as between the Parties, LN will retain all ownership and Intellectual Property Rights in and to the Access Links (exclusive of copyrighted content), the Newsdesk Services, Newsletter Service and all technologies and methodologies developed by or licensed to LN and provided by LN under this Agreement (together “LN Intellectual Property”).

3.2    Use of the LN Intellectual Property.  Without limiting the generality of anything set forth in this Agreement, Customer acknowledges and agrees that it shall use the LN Intellectual Property solely as permitted by this Agreement.  Customer agrees that it shall not itself, and shall not permit any subsidiary, affiliate, employee or Authorized User, before, during or after the Term to:

3.2.1    sell, resell, rent, license, sublicense, transfer, assign or redistribute in any way the LN Intellectual Property except as may be expressly permitted by LN herein;

3.2.2    attempt to reverse engineer, decompile, disassemble or otherwise attempt to derive any of LN's computer programs, source code, patents, copyrights, trade secrets or other proprietary rights or LN's methodology related to the creation and compilation of the Access Links or any other information furnished to Customer by LN.

3.2.3    compile or create any derivative works based upon the LN Intellectual Property, any Confidential Information or any methodology of LN;

3.2.4    provide, disclose, divulge or make available to, or permit use of the LN Intellectual Property by any third party without LN's prior written consent in each instance, which consent LN may withhold for any or no reason; or

3.2.5    take any action in derogation of the rights of LN or its information providers, including, without limitation, rights related to the LN Intellectual Property, or which would impede enforcement of the rights of LN or any of its information providers.

3.3    Use of the Newsdesk Supplied Content.  Customer may use the Newsdesk Supplied Content available to it through the Newsdesk Services, including Source Articles, from Newsdesk Supplied Content solely to: (i) store and index the text for searching purposes with such search index text to be destroyed no later than three hundred and ninety-five (395) days following initial inclusion in such index for Newsdesk Supplied Content other than LN Supplied Content - - LN Supplied Content may be stored for up to ninety (90) days; (ii) display a headline and/or URL; and (iii) access and display full text of a Source Article via the Access Link.  Customer may not use any Newsdesk Supplied Content for any non-monitoring and/or evaluation purposes.   If Customer desires to use Newsdesk Supplied Content beyond the scope of fair use or for purposes other than those described herein, e.g., corporate advertising, permanent archiving of digital copies, inclusion in press releases and annual reports, or distributions beyond those outlined in this Section 3, above, Customer will be solely responsible for securing consent from the appropriate third party publisher prior to any such out-of-scope use.

3.4    Use of LN Supplied Content.  Customer’s use of LN Supplied Content is, in addition to the terms set forth in other sections of this Agreement, governed by the General Terms and Conditions set forth at http://www.lexisnexis.ca/en-ca/terms/online-products.page and the Supplemental Terms for Specific Materials referred therein (collectively “General Terms”) the LN Supplied Content is considered and referred to as Materials under such General Terms.  In the event of any conflict between the General Terms and the terms of this Agreement, the General Terms shall govern with respect to access to and use of the LN Supplied Content, except that the governing law for this Agreement, including use of LN Supplied Content, shall be as specified in Section 9.1 below.

3.5    Additional Options Related to LN Intellectual Property.  In the event of any claim, suit, or proceeding alleging that any LN Intellectual Property or its use hereunder infringes the rights of any party, LN shall have the right, at its sole option, to obtain the right for Customer to continue use of the affected Metabase Services and/or LN Intellectual Property or to replace or modify any such affected Metabase Services and/or LN Intellectual Property so that they may be provided by LN and used by Customer without the infringement of a third party Intellectual Property Right. If none of the foregoing options are available to LN on a commercially reasonable basis, either party may terminate this Agreement on notice to the other party and within thirty (30) days after such termination, LN shall pay Customer any fees paid in advance by Customer commensurate with the remaining portion of the Term for which such fees were paid.  LN shall have no other or further obligation to Customer.

4    Fees

4.1    Fees; Taxes. Fees for the Newsdesk Services are as set forth in your subscription agreement and as set forth on any addendum which includes additional services under this Agreement (“Fees”).  All consideration due under this Agreement is exclusive of sales, use, value added and all other taxes and duties (collectively “Taxes”) payable in respect of such consideration, which shall be paid by Customer at the rate and in the manner prescribed by law. LN shall collect and remit appropriate taxes at the time of payment by Customer, unless Customer provides evidence satisfactory to LN that the transaction is exempt from taxation.

4.2    Invoicing; Payment. Customer will be invoiced monthly for amounts due under this Agreement.  Customer shall pay each invoice within thirty (30) days after the invoice date.  If the Effective Date occurs on a day other than the first day of a calendar month, the applicable Monthly Fee will be prorated based on the number of days remaining in that month.  Amounts not paid when due are subject to interest charges at the rate of 1.5% per month, or the highest amount allowed by applicable law, whichever is less.  If charged by LN, such interest shall accrue from day to day from the due date until the date of actual payment in full. All amounts due shall be paid in full without any deduction or withholding other than as required by law and Customer shall not be entitled to assert any credit, set-off, deduction, counterclaim or abatement of any nature whatsoever against LN in order to justify withholding payment of any such amount in whole or in part.

4.3    Suspension of Service. In the event that any payment due to LN is not paid in full within sixty (60) days after the invoice date, then, without prejudice to any other remedies available pursuant to this Agreement, LN may immediately and without notice to Customer suspend Customer’s access to and use of Newsdesk Platform Service, Newsletter Service and Access Links  (whereupon Customer shall forthwith cease all use of Newsdesk, Newsletter, Access Links and the Marks) until such time as payment in full has been made and if required in LN’s sole and absolute discretion, an advance payment deposit for future services has been made.  Such suspension shall have no effect on the Customer’s liability for amounts due under this Agreement.

4.4    Bank Charges.  Customer shall be responsible for any bank fees charged for cross border funds transfer and domestic wire transfers of funds.

5    Termination

5.1    Default and Termination  


5.1.1    LN shall have the right to terminate this Agreement immediately and without notice in the event that Customer fails to pay any invoice in full within sixty on (60) days after the invoice date.  Such termination shall have no effect the Customer’s liability for amounts due under this Agreement and shall be without prejudice to any rights and remedies of LN pursuant to this Agreement.

5.1.2    This Agreement may be terminated by either party, on written notice as follows:
(a)    In the event that the other commits a material breach of this Agreement, and having received from the party not in breach written notice of such breach stating its intent to terminate the Agreement if not remedied, fails to remedy such breach within thirty (30) days; or
(b)     (i) upon the institution by the other party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of its debts; (ii) upon the institution of such proceedings against the other party, which are not dismissed or otherwise resolved in its favor within sixty (60) days thereafter; (iii) upon the other party’s making a general assignment for the benefit of creditors; or (iv) upon the other party’s dissolution or ceasing to conduct business in the normal course.
5.1.3    LN shall be entitled to terminate this Agreement without liability to Customer in the event that any part of the Newsdesk Services is deemed illegal.

5.2    Survival.  Except as otherwise set forth herein, Sections 1, 3.1, 4,
5.2, 5.3 and 6 thru 9 (except 9.7) (and any other provisions of this Agreement which in order to give effect to their meaning need to survive its termination) shall survive any termination or expiration of this Agreement.

5.3    Effect of Termination. Upon expiration or termination of this Agreement:

5.3.1    all of Customer’s rights with respect to the Access Links (including without limitation the provision of services pursuant to Section 2) and the Newsdesk Services shall automatically terminate.  Customer shall remove the Access Links and all content from the Newsdesk Services and any depictions from the Customer Intranet Site and all systems of Customer on the date of expiration or termination and all related documentation (if any) in Customer’s possession shall be, at LN’s option, promptly returned to LN or destroyed and, in the event of destruction, Customer shall promptly confirm such destruction in writing;

5.3.2    Customer shall, within fifteen (15) days after the date of expiration or termination of this Agreement, account to LN for all monies (if any) due under this Agreement for the period up to the date of termination or expiration;

5.3.3    the Parties shall cease all business or other commercial references to each other under this Agreement and not represent or otherwise hold out that there is any commercial, business or other form of association or relationship between them under this Agreement;
5.3.4    any termination of this Agreement (however occasioned) shall not affect any accrued rights or liabilities of either party; and

5.3.5    after the expiration of this Agreement, if Customer continues to use any Newsdesk Services provided by LN under this Agreement, all such use will be governed by the terms and conditions of this Agreement, except for pricing.  Customer will be invoiced and will pay for continued use based on LN’s then current, undiscounted rates.

6    Indemnification


6.1    Indemnification Customer shall indemnify and hold LN, its directors, officers, agents, employees, successors, and assigns harmless from and against any and all liability, damage, loss, expense, demand, claim, suit and judgment, including reasonable attorney’s fees, arising out of or in connection with any third party claim (“Claims”)  based on or related to (i) any Claims that the Customer has infringed any third party Intellectual Property Right; (ii) Customer’s alteration of the Access Links, or any aspect of the Newsdesk Service or content accessed through the Newsdesk Service, including Customer Provided Content, or any misuse thereof; (iii) the Customer Provided Content or technology or (iv) gross negligence or willful misconduct by Customer, or its employees, subcontractors or agents.

6.2    Procedure for Seeking Indemnification.  In the event that LN becomes aware of any event or circumstances that it believes may give rise to a Claim which it believes is covered under Section 6.1 above it shall promptly notify Customer thereof in writing; provided, however, that the failure to give prompt notice of a claim will not relieve Customer of any liability hereunder (except to the extent that Customer has suffered actual and material prejudice from such failure). LN shall, at Customer’s expense give the Customer such reasonable assistance regarding the Claim, as the Customer may reasonably request.  If a claim for indemnification arises from any action, suit or proceeding, Customer shall, at its expense assume the defense of such action, suit or proceeding, with counsel of its choice, reasonably satisfactory to LN and the Customer shall conduct the defense actively and diligently. LN shall have the right, but not the duty, to participate in its own defense and to employ at its own expense counsel separate from counsel employed by the Customer.  The Customer shall be liable for the fees and expenses of counsel employed by LN if the Customer has not assumed the defense thereof.  Whether or not the Customer chooses to defend or prosecute any claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences as are reasonably required.  The Customer will not consent to the entry of any judgment on or enter into any settlement with respect to a Claim without the prior written consent of LN, which shall not be unreasonably delayed, conditioned or withheld, unless the judgment or proposed settlement involves only the payment of money damages by the Customer and does not impose an injunction or other equitable relief upon LN.  LN shall not consent to the entry of any judgment on or enter into any settlement with respect to any Claim without the prior written consent of the Customer, which shall not be unreasonably delayed, conditioned or withheld.

7.    Warranty Disclaimer; Limitation of Liability

7.1    LN MAKES NO REPRESENTATIONS OR WARRANTIES,  EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THIS AGREEMENT, THE NEWSDESK SERVICES, THE NEWSDESK SUPPLIED CONTENT, THE ACCESS LINKS, THE LN SUPPLIED CONTENT OR ANY OTHER SERVICES PROVIDED HEREUNDER, ALL OF WHICH ARE PROVIDED “AS IS”.  LN DOES NOT WARRANT, REPRESENT OR GUARANTEE THAT THE USE OF THE NEWSDESK SERVICES, THE NEWSDESK SUPPLIED CONTENT, THE ACCESS LINKS, THE LN SUPPLIED CONTENT OR ANY OTHER SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED, UNDISRUPTED OR ERROR-FREE.

7.2    LN expressly disclaims any and all liability with regard to Customer’s access to and use of any (i) Web Content and (ii) Customer Provided Content.  LN has not entered into a licensing agreement or linking agreement with the owners of the websites that provide the Web Content and makes no representation that it has the right to sublicense access to the Web Content to Customer or any Authorized User.  Customer’s use of the Web Content  and Customer Provided Content, including any distribution or redistribution thereof, is solely at its own risk.  Customer will indemnify and hold LN harmless from any loss or damage suffered by LN as a result of a third party claim brought against LN as a result of use of Web Content or Customer Provided Content by Customer or any Authorized User.

7.3    TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF LN OR ITS AFFILIATES AND THEIR EMPLOYEES AND DIRECTORS (“THE COVERED PARTIES”) IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE NEWSDESK SERVICES, THE NEWSDESK SUPPLIED CONTENT, WEB CONTENT, CUSTOMER PROVIDED CONTENT OR THE ACCESS LINKS, EXCEED THE LESSER OF CUSTOMER’S ACTUAL DIRECT DAMAGES OR THE AMOUNT CUSTOMER PAID TO LN UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. CUSTOMER’S RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH IT MAY HAVE AGAINST ANY COVERED PARTY.  

7.4    IN NO EVENT SHALL LN BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, LOSS OF OR DAMAGE TO SYSTEMS, PROGRAMS, OR DATA; COST OF PROCUREMENT OF SUBSTITUTE GOODS, ARISING FROM OR IN ANY WAY CONNECTED WITH ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, WHETHER IN CONTRACT (INCLUDING BREACH OF WARRANTY), TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUES OR LOSS OF PROFITS, EVEN IF IT HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES.

7.5    Each provision of this Section 7 excluding or limiting liability shall be construed separately, applying and surviving even if for any reason one or other of these provisions is held inapplicable or unenforceable in any circumstances and shall remain in force notwithstanding the expiration or termination of this Agreement.

8    Confidentiality

8.1    Confidential Information.  As used in this Agreement, the term “Confidential Information” shall mean any information disclosed by one party to the other pursuant to this Agreement which is in written, graphic, machine readable or other tangible form and is marked either “Confidential” or “Proprietary.” Confidential Information may also include oral information disclosed by one party to the other pursuant to this Agreement, provided that such information is designated as confidential at the time of disclosure and is reduced to writing by the disclosing party within a reasonable time (not to exceed 30 days) after its oral disclosure, and such writing is marked in a manner to indicate its confidential nature and delivered to the receiving party.  Without limiting the foregoing, the terms and conditions of this Agreement, and any information which concerns technical details of operation of any of LN’s services or Newsdesk Services, LN Intellectual Property, whether or not designated or marked as confidential, shall be deemed Confidential Information of LN.

8.2    Confidentiality.  Each party shall, during the Term and for one year thereafter, treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as set forth herein, and shall not disclose such Confidential Information to any third party.  Without limiting the foregoing, each of the Parties shall use at least the same degree of care which it uses to prevent the disclosure of its own Confidential Information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other party under this Agreement.

8.3    Exceptions.  Notwithstanding the above, neither party shall have liability to the other with regard to any information of the other which the receiving party can prove:

8.3.1    was public at the time it was disclosed or has become public through no fault of the receiving party;

8.3.2    was known to the receiving party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure;

8.3.3    is disclosed with the prior written approval of the disclosing party;

8.3.4    was independently developed by the receiving party without any use of the Confidential Information;

8.3.5    becomes known to the receiving party, without restriction, from a source other than the disclosing party without breach of this Agreement by the receiving party and otherwise not in violation of the disclosing party’s rights; or

8.3.6    is disclosed generally to third parties by the disclosing party without restrictions similar to those contained in this Agreement.
In addition, the receiving party shall be entitled to disclose the other party’s Confidential Information to the extent such disclosure is required by order or requirement of a court, administrative agency, or other governmental body, provided, however, that the receiving party shall, as long as permitted by applicable law and regulations, provide prompt notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.

9    Miscellaneous Provisions

9.1    Compliance with Laws and Jurisdiction.

9.1.1     Use of the Services inside the United States. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Ohio, without reference to conflict of laws principles. Use of the Services outside the United States. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed and construed in accordance with the laws of the Province of Ontario, Canada, without reference to conflict of laws principles.

9.1.2    The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
9.1.2 The Parties agree to comply with all applicable laws including without limitation laws and regulations regarding privacy and anti-spam.

9.2    Partial Invalidity. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect. The Parties agree in such circumstances to attempt in good faith to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.  The obligations of the Parties under any invalid or unenforceable provision of this Agreement shall be suspended while an attempt at such substitution is made.

9.3    Independent Contractors.  The Parties hereto are independent contractors in relation to each other. Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the Parties, or to authorize either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way or to hold itself out in its advertising or otherwise in any manner which would indicate or imply any such relationship with the other.

9.4    Modification. No addition to, or modification of, any provision of this Agreement shall be binding on the Parties unless made by a written instrument and signed by a duly authorised representative of each of the Parties.

9.5    Waiver. The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.  The rights and remedies contained in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.

9.6    Assignment.  Neither party shall assign any of its rights, obligations, or privileges (by operation of law or otherwise) hereunder without the prior written consent of the other party, provided that LN may assign (or be deemed to have assigned by operation of law) its rights under this Agreement to any of its affiliates or in the event of merger, reorganization or acquisition of all or substantially all of its business or assets having to do with the line of business to which this Agreement relates.  In the event that LN consents to an assignment by Customer to an entity that is an existing customer of LN, such assignee shall remain liable for the full amount of fees set forth in Section 4 above for the balance of the Term or Renewal Term, as applicable.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.  Any attempted assignment in violation of this Section shall be void. In the event that the Customer acquires another entity (“Customer Acquired Affiliate”), irrespective of the form of the acquisition i.e., whether by purchase of assets or equity, merger, consolidation or other business reorganization, the prior written consent of LN will be required with respect to the use of Services covered by this Agreement by such Customer Acquired Affiliate and applicable pricing with respect to any such Customer Acquired Affiliate shall be agreed to by the parties and set forth in a separate Amendment to this Agreement.

9.7    Notices

9.7.1    Any notices required to be given under this Agreement shall be in writing  and shall be personally delivered or sent by commercial courier service (e.g. Federal Express) or by first class mail (certified or registered, if available), or by telecopy or e-mail confirmed by first class mail (certified or registered, if available) to Attention: General Counsel at the address of the relevant party specified in this Agreement or at such other address as either party may designate for itself from time to time in accordance with this Section 9.7.

9.7.2   Notice shall, as long as addressed and sent in accordance with Section

9.7.1, be effective upon receipt by the party to which the notice is directed.

9.8    Force Majeure.  Notwithstanding anything else in this Agreement, and except for the obligation to pay money, no default, delay or failure to perform on the part of either party shall be considered a breach of this Agreement if such default, delay or failure to perform is due to causes beyond that party's reasonable control ("force majeure"), including but not limited to causes such as electric outages, blackouts, strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, or default of a common carrier.

9.9    Further Assurance: The Parties shall and, shall use their respective reasonable endeavors to procure, so far as they are able, that any necessary third parties shall execute and perform all such further deeds, documents, assurances, acts and things as either of the Parties may reasonably require, by notice in writing to the other, to carry the provisions of this Agreement into effect.

9.10    Entire Agreement. This Agreement (as amended from time to time) together with any document expressly referred to in any of its terms, contains the entire agreement between the Parties relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the Parties in relation to such matters.  No oral explanation or oral information given by any party shall alter the interpretation of this Agreement.  Each party confirms that, in agreeing to enter into this Agreement, it has not relied on any representation save insofar as the same has expressly been made a representation in this Agreement and agrees that it shall have no remedy in respect of any misrepresentation which has not become a term of this Agreement save that the agreement of either party contained in this Section shall not apply in respect of any fraudulent misrepresentation whether or not such has become a term of this Agreement.

9.11    Compliance with Law, Export Requirements, and Foreign Reshipment Liability.  Each Party agrees that it shall comply with all applicable federal, state and local laws, regulations, and export requirements in connection with its performance under this Agreement.  Regardless of any disclosure made by Customer to LN of an ultimate destination of the Newsdesk Services or technical data acquired from LN and, notwithstanding anything contained in this Agreement to the contrary, Customer will not modify, export, or re-export, either directly or indirectly, any of the Newsdesk Services or technical data, or portions thereof, without first obtaining any and all necessary licenses from the applicable government entity thereof or any other country that requires an export license or other governmental approval at the time of modification, export, or re-export. LN shall have the right to suspend performance of any of its obligations under this Agreement, without any prior notice being required and without any liability to Customer if Customer fails to comply with this provision.


Newsdesk EULA (CANADA) September 2015
NEWSDESK END USER LICENSE AGREEMENT (Canada)

Definitions
In this Agreement (except where the context otherwise requires) the following terms shall have the following meanings:

1.1    “Access Link” means a link from which access to discrete, full-text articles and materials available through the Newsdesk Services including without limitation, the LN Supplied Content and the Web Content, may be accessed from the Newsdesk Services or such other services provided by LN under this Agreement (as it may be amended).  Access Links are developed by LN or Moreover and provided to Customer and Customer shall not modify any Access Link.

1.2    “Customer Provided Content” means content owned by Customer or licensed to Customer by other third party suppliers to Customer, other than LN Licensed Content, which Customer makes available through the Newsdesk Services or such other services provided by LN under this Agreement (as it may be amended).  

1.3    “Customer’s Intranet Website” means Customer’s internal website accessible only to Customer’s employees, temporary employees and/or contractors.  No other parties shall have access to the Intranet Website.

1.4    “Effective Date” means the date set out on the first page of this Agreement upon which the Services provided to the Customer pursuant to this Agreement commence.

1.5    “Fees” means all fees to be paid by Customer to LN as set forth in subscription agreement.

1.6    “Initial Term” means the initial term set forth in subscription agreement.

1.7    “Intellectual Property Rights” means all copyright and other intellectual property rights, however arising and in whatever media, whether or not registered or capable of registration, including (without limitation) patents, trademarks, service marks, trade names, design rights, database rights and any applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world.

1.8    “LN Supplied Content” means content from the online services available from LN which is selected by LN in its sole discretion and made available by LN under this Agreement for use by Customer solely as specified in this Agreement; LN Supplied Content, as of the Effective Date, is identified in the subscription agreement.  


1.9    “Marks” means trademarks, service marks, trade dress, logos, trade names internet domain names, designs and slogans pertaining to LN, Newsdesk and Newsletter.

1.10    “Newsdesk Reader Service” means the LN service which is designed to enable Newsdesk Users to make a limited number of select articles from LN available to Reader Users on Customer’s Intranet Website or via the Newsletter Feature.  

1.11    “Newsdesk Services” means a news portal interface that combines news search tools and e-mail alerts and other services selected by Customer on Schedule A as well as any other services which may be included under this Agreement by Addendum from time to time, together with the Newsdesk Supplied Content and access to Web Content and Customer Provided Content, if any, and the related Access Links made available to Customer by LN under this Agreement.

1.12    “Newsdesk Supplied Content” means that (i) LN Supplied Content, (ii) other content licensed by third party content providers to Moreover and (iii) content developed by or for Moreover.  Newsdesk Supplied Content may be deleted, modified, added to, replaced or otherwise changed by LN as it may determine.

1.13    “Newsdesk User” means a user that is an Authorized User of the Newsdesk Services under the Agreement; Newsdesk Users select the Newsdesk Supplied Content, Web Content and Customer Provided Content to be displayed to the Reader Users through Customer’s Intranet Website or through the other distribution features set forth in this Amendment.

1.14    “Newsletter Feature” means the Newsdesk Reader Service feature which allows the Newsdesk Users to select Documents to be included in an electronic newsletter (directly or through Access Links) (the “Newsletter”) which will be emailed to the Reader Users from LN to the email addresses provided by the Newsdesk Users.  Customer and the Reader Users are prohibited from further forwarding or distributing the Newsletters or Documents included therein.

1.15    “Reader License” means a license granted by LN that authorizes a Newsletter Reader User to view, via an Access Link, the full-text of articles referenced in a Citation provided to such Newsletter Reader User in the Newsdesk Reader Service, but does not permit the Newsletter Reader User to conduct searches in the Newsdesk Services or otherwise.

1.16    “Reader Users” must be employees of Customer, Customer’s temporary employees, and Customer’s contractors for which Customer has purchased a Reader License under this Amendment.

1.17    “Renewal Term” means a period commencing after the Initial Term pursuant to the provisions of the subscription agreement.

1.18    “Source Addition” means a specific source of content that Customer requests that LN establish as a Source Site and which LN agrees in writing to provide.

1.19    “Source Article” means any content (including without limitation text and graphics) that is accessible via a Access Link.

1.20    “Source URL” means the URL for a single page on a web site where a Source Article is published.

1.21    “Term” means the Trial Period, the Initial Term and any subsequent Renewal Term(s).

1.22    “Web Content” means any content, including online news articles and press releases, web posting by third parties relating to a Source Article and/or Source URL which are accessible through the Newsdesk Services for display generally via an Access Link.

2    Use of Newsdesk Services

2.1    Newsdesk

2.1.1    For the purposes of this Agreement LN shall provide access to Customer to Newsdesk Services and hereby grants Customer a nonexclusive, nontransferable, limited right to access and use the Newsdesk Services for research purposes.  Newsdesk Users may use the Newsdesk Service; Reader Users may only use the News Reader Service

2.2    Newsletter Feature

2.2.1    LN grants Customer and its Reader Users the right to access and use the Newsdesk Reader Service and the right use the Newsdesk Supplied Content through the functionality of the Newsdesk Reader Service on the terms set forth in this Agreement.  The Newsdesk Supplied Content may be displayed for each Newsletter Reader User’s individual use only and not for further distribution, dissemination, or display except as expressly provided herein.  Customer’s Newsdesk Users will choose the Newsdesk Supplied Content for display on Customer’s Intranet Website and through other features of the Newsdesk Reader Service as authorized by this Agreement, including, without limitation, emailing Access Links to Documents to Reader Users, which Access Links will direct the Newsletter Reader User to LN to view the full text of Documents from LN Supplied Content and otherwise distributing documents to Reader Users via Newsletter.  Customer’s Newsdesk Reader Users may view Newsdesk Supplied Content displayed on Customer’s Intranet Website or disturbed to the Newsdesk Reader Users electronically through the functionality of the Newsdesk Reader Service.

2.2.2    Customer acknowledges and agrees that it is responsible for use of the Newsdesk Reader Service by any such temporary employees and contractors to the same extent as if they were employees.  For the avoidance of doubt, “Reader Users” shall only include temporary employees and contractors who are performing work solely for Customer’s internal use.  “Reader Users” shall not include customers or external professional service providers such as attorneys, accountants, public relations firms and like organizations.

2.3    Delivery; Authorized Users

2.3.1    LN shall provide the Newsdesk Services to Customer via the LN.com web site or such other web site as may be specified by LN from time-to-time.

2.3.2    Only Customer’s employees, temporary employees, partners/members, and contractors performing work exclusively for Customer (to the extent those categories of persons are appropriate to Customer’s situation) are eligible to access and use the Newsdesk Services (“Eligible Persons”).  Without limitation, external professional service providers such as attorneys, accountants, outsourcers, and public relations firms are specifically excluded from being Eligible Persons.  The term “Authorized Users” means an Eligible Person whom Customer has identified to LN as a Newsdesk User or a Reader User for purposes of issuing an LN ID.  Customer agrees that each ID issued by LN for use of Newsdesk Services (“LN ID”) may only be used by the Authorized User to whom LN assigns it and that the LN ID may not be shared with or used by any other person, including other Authorized Users.  Customer will manage its roster of Authorized Users and will promptly notify LN to deactivate an Authorized User’s LN ID if the Authorized User is no longer an Eligible Person or Customer otherwise wishes to terminate the Authorized User’s access to the Newsdesk Services.  Customer is responsible for all use of the Newsdesk Services accessed with LN IDs issued to Customer’s Authorized Users, including associated charges, whether by Authorized Users or others.  Customer will use reasonable commercial efforts to prevent unauthorized use of LN IDs assigned to its Authorized Users and will promptly notify LN, in writing, if Customer suspects that an LN ID has been lost, stolen, compromised, or misused.

2.3.3    You may not access or otherwise use the Online Services if you are identified on, and you may not provide access to the Online Services to any individuals identified on, OFAC’s list of Specially Designated Nationals, the UK’s HM Treasury’s Consolidated List of Sanctions Targets, or the EU’s Consolidated List of Persons, Groups, and Entities Subject to EU Financial Sanctions.

2.4    Conditions and Limitations on the Use of Newsdesk Services.  Customer’s use of the Newsdesk Services is subject to the following restrictions:

2.4.1    The rights set out herein are limited to the use of Newsdesk Services for Customer internal operations.   Any additional services must be requested by Customer from LN. LN shall be entitled to withhold its consent to any such request in its sole discretion. Any further services LN agrees to provide shall be on LN's standard terms and conditions, as amended from time to time.

2.4.2    If Customer chooses for its Newsdesk Users to distribute LN Supplied Content to other users, such other users must be Reader Users and such distribution must be through the Newsdesk Reader Service.

2.4.3    Customer may use Newsdesk Supplied Content as permitted by applicable copyright law; provided that downloading and storing any Newsdesk Supplied Content accessed through the Newsdesk Services in an archived database is prohibited.

2.4.4    Content accessed through Newsdesk Services, including the LN Supplied Content may be retrieved by means of a periodic search (e.g., daily weekly, hourly depending upon how it is set up).  The language of the periodic search(s) will be selected by Customer but the language of all searches must be topical in nature and must be designed to return a limited number of select articles from various sources available through the Newsdesk Services.  The periodic searches may not be designed to retrieve the entire issues or substantially the entire issue of any publication.

2.4.5    All right, title, and interest (including all copyrights, trademarks and other intellectual property rights) in the Newsdesk Services and Newsdesk Supplied Content in any medium belongs to LN or its third party suppliers.  Neither Customer nor its Authorized Users acquire any proprietary interest in the Newsdesk Services other than the limited rights expressly granted in this Agreement.

2.4.6    Neither Customer nor its Authorized Users may use the Newsdesk Services in any fashion that infringes the Intellectual Property Rights or proprietary interests of LN or any third party.  Customer’s use of the Newsdesk Services and Newsdesk Supplied Content must comply with all applicable laws, rules or regulations.

2.4.7    Neither Customer nor its Authorized Users may remove or obscure the copyright notice or other notices contained in Newsdesk Supplied Content.

2.4.8    Use of the Newsdesk Services via mechanical, programmatic, robotic, scripted or any other automated means is strictly prohibited.  Unless otherwise agreed to by LN in writing, use of the Newsdesk Services is permitted only via manually conducted, discrete, individual search and retrieval activities.

2.4.9    Customer shall not remove or alter any element of any Access Link, including without limitation any text and shall display each Access Link
unmodified and as a hyperlink to the relevant Source URL.
2.4.10    Except as described above, Customer will have no right to access, reproduce, modify, distribute or otherwise use the Access Links, the Newsdesk Services or the LN Supplied Content.  

3    Intellectual Property Rights

3.1    Retention of Rights.  Subject to the limited right to use the services provided to Customer pursuant to this Agreement, as between the Parties, LN will retain all ownership and Intellectual Property Rights in and to the Access Links (exclusive of copyrighted content), the Newsdesk Services, Newsletter Service and all technologies and methodologies developed by or licensed to LN and provided by LN under this Agreement (together “LN Intellectual Property”).

3.2    Use of the LN Intellectual Property.  Without limiting the generality of anything set forth in this Agreement, Customer acknowledges and agrees that it shall use the LN Intellectual Property solely as permitted by this Agreement.  Customer agrees that it shall not itself, and shall not permit any subsidiary, affiliate, employee or Authorized User, before, during or after the Term to:

3.2.1    sell, resell, rent, license, sublicense, transfer, assign or redistribute in any way the LN Intellectual Property except as may be expressly permitted by LN herein;

3.2.2    attempt to reverse engineer, decompile, disassemble or otherwise attempt to derive any of LN's computer programs, source code, patents, copyrights, trade secrets or other proprietary rights or LN's methodology related to the creation and compilation of the Access Links or any other information furnished to Customer by LN.

3.2.3    compile or create any derivative works based upon the LN Intellectual Property, any Confidential Information or any methodology of LN;

3.2.4    provide, disclose, divulge or make available to, or permit use of the LN Intellectual Property by any third party without LN's prior written consent in each instance, which consent LN may withhold for any or no reason; or

3.2.5    take any action in derogation of the rights of LN or its information providers, including, without limitation, rights related to the LN Intellectual Property, or which would impede enforcement of the rights of LN or any of its information providers.

3.3    Use of the Newsdesk Supplied Content.  Customer may use the Newsdesk Supplied Content available to it through the Newsdesk Services, including Source Articles, from Newsdesk Supplied Content solely to: (i) store and index the text for searching purposes with such search index text to be destroyed no later than three hundred and ninety-five (395) days following initial inclusion in such index for Newsdesk Supplied Content other than LN Supplied Content - - LN Supplied Content may be stored for up to ninety (90) days; (ii) display a headline and/or URL; and (iii) access and display full text of a Source Article via the Access Link.  Customer may not use any Newsdesk Supplied Content for any non-monitoring and/or evaluation purposes.   If Customer desires to use Newsdesk Supplied Content beyond the scope of fair use or for purposes other than those described herein, e.g., corporate advertising, permanent archiving of digital copies, inclusion in press releases and annual reports, or distributions beyond those outlined in this Section 3, above, Customer will be solely responsible for securing consent from the appropriate third party publisher prior to any such out-of-scope use.

3.4    Use of LN Supplied Content.  Customer’s use of LN Supplied Content is, in addition to the terms set forth in other sections of this Agreement, governed by the General Terms and Conditions set forth at http://www.lexisnexis.ca/en-ca/terms/online-products.page and the Supplemental Terms for Specific Materials referred therein (collectively “General Terms”) the LN Supplied Content is considered and referred to as Materials under such General Terms.  In the event of any conflict between the General Terms and the terms of this Agreement, the General Terms shall govern with respect to access to and use of the LN Supplied Content, except that the governing law for this Agreement, including use of LN Supplied Content, shall be as specified in Section 9.1 below.

3.5    Additional Options Related to LN Intellectual Property.  In the event of any claim, suit, or proceeding alleging that any LN Intellectual Property or its use hereunder infringes the rights of any party, LN shall have the right, at its sole option, to obtain the right for Customer to continue use of the affected Metabase Services and/or LN Intellectual Property or to replace or modify any such affected Metabase Services and/or LN Intellectual Property so that they may be provided by LN and used by Customer without the infringement of a third party Intellectual Property Right. If none of the foregoing options are available to LN on a commercially reasonable basis, either party may terminate this Agreement on notice to the other party and within thirty (30) days after such termination, LN shall pay Customer any fees paid in advance by Customer commensurate with the remaining portion of the Term for which such fees were paid.  LN shall have no other or further obligation to Customer.

4    Fees

4.1    Fees; Taxes. Fees for the Newsdesk Services are as set forth in your subscription agreement and as set forth on any addendum which includes additional services under this Agreement (“Fees”).  All consideration due under this Agreement is exclusive of sales, use, value added and all other taxes and duties (collectively “Taxes”) payable in respect of such consideration, which shall be paid by Customer at the rate and in the manner prescribed by law. LN shall collect and remit appropriate taxes at the time of payment by Customer, unless Customer provides evidence satisfactory to LN that the transaction is exempt from taxation.

4.2    Invoicing; Payment. Customer will be invoiced monthly for amounts due under this Agreement.  Customer shall pay each invoice within thirty (30) days after the invoice date.  If the Effective Date occurs on a day other than the first day of a calendar month, the applicable Monthly Fee will be prorated based on the number of days remaining in that month.  Amounts not paid when due are subject to interest charges at the rate of 1.5% per month, or the highest amount allowed by applicable law, whichever is less.  If charged by LN, such interest shall accrue from day to day from the due date until the date of actual payment in full. All amounts due shall be paid in full without any deduction or withholding other than as required by law and Customer shall not be entitled to assert any credit, set-off, deduction, counterclaim or abatement of any nature whatsoever against LN in order to justify withholding payment of any such amount in whole or in part.

4.3    Suspension of Service. In the event that any payment due to LN is not paid in full within sixty (60) days after the invoice date, then, without prejudice to any other remedies available pursuant to this Agreement, LN may immediately and without notice to Customer suspend Customer’s access to and use of Newsdesk Platform Service, Newsletter Service and Access Links  (whereupon Customer shall forthwith cease all use of Newsdesk, Newsletter, Access Links and the Marks) until such time as payment in full has been made and if required in LN’s sole and absolute discretion, an advance payment deposit for future services has been made.  Such suspension shall have no effect on the Customer’s liability for amounts due under this Agreement.

4.4    Bank Charges.  Customer shall be responsible for any bank fees charged for cross border funds transfer and domestic wire transfers of funds.

5    Termination

5.1    Default and Termination  

5.1.1    LN shall have the right to terminate this Agreement immediately and without notice in the event that Customer fails to pay any invoice in full within sixty on (60) days after the invoice date.  Such termination shall have no effect the Customer’s liability for amounts due under this Agreement and shall be without prejudice to any rights and remedies of LN pursuant to this Agreement.

5.1.2    This Agreement may be terminated by either party, on written notice as follows:
(a)    In the event that the other commits a material breach of this Agreement, and having received from the party not in breach written notice of such breach stating its intent to terminate the Agreement if not remedied, fails to remedy such breach within thirty (30) days; or
(b)     (i) upon the institution by the other party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of its debts; (ii) upon the institution of such proceedings against the other party, which are not dismissed or otherwise resolved in its favor within sixty (60) days thereafter; (iii) upon the other party’s making a general assignment for the benefit of creditors; or (iv) upon the other party’s dissolution or ceasing to conduct business in the normal course.
5.1.3    LN shall be entitled to terminate this Agreement without liability to Customer in the event that any part of the Newsdesk Services is deemed illegal.

5.2    Survival.  Except as otherwise set forth herein, Sections 1, 3.1, 4,
5.2, 5.3 and 6 thru 9 (except 9.7) (and any other provisions of this Agreement which in order to give effect to their meaning need to survive its termination) shall survive any termination or expiration of this Agreement.

5.3    Effect of Termination. Upon expiration or termination of this Agreement:

5.3.1    all of Customer’s rights with respect to the Access Links (including without limitation the provision of services pursuant to Section 2) and the Newsdesk Services shall automatically terminate.  Customer shall remove the Access Links and all content from the Newsdesk Services and any depictions from the Customer Intranet Site and all systems of Customer on the date of expiration or termination and all related documentation (if any) in Customer’s possession shall be, at LN’s option, promptly returned to LN or destroyed and, in the event of destruction, Customer shall promptly confirm such destruction in writing;

5.3.2    Customer shall, within fifteen (15) days after the date of expiration or termination of this Agreement, account to LN for all monies (if any) due under this Agreement for the period up to the date of termination or expiration;

5.3.3    the Parties shall cease all business or other commercial references to each other under this Agreement and not represent or otherwise hold out that there is any commercial, business or other form of association or relationship between them under this Agreement;
5.3.4    any termination of this Agreement (however occasioned) shall not affect any accrued rights or liabilities of either party; and

5.3.5    after the expiration of this Agreement, if Customer continues to use any Newsdesk Services provided by LN under this Agreement, all such use will be governed by the terms and conditions of this Agreement, except for pricing.  Customer will be invoiced and will pay for continued use based on LN’s then current, undiscounted rates.
6    Indemnification

6.1    Indemnification Customer shall indemnify and hold LN, its directors, officers, agents, employees, successors, and assigns harmless from and against any and all liability, damage, loss, expense, demand, claim, suit and judgment, including reasonable attorney’s fees, arising out of or in connection with any third party claim (“Claims”)  based on or related to (i) any Claims that the Customer has infringed any third party Intellectual Property Right; (ii) Customer’s alteration of the Access Links, or any aspect of the Newsdesk Service or content accessed through the Newsdesk Service, including Customer Provided Content, or any misuse thereof; (iii) the Customer Provided Content or technology or (iv) gross negligence or willful misconduct by Customer, or its employees, subcontractors or agents.

6.2    Procedure for Seeking Indemnification.  In the event that LN becomes aware of any event or circumstances that it believes may give rise to a Claim which it believes is covered under Section 6.1 above it shall promptly notify Customer thereof in writing; provided, however, that the failure to give prompt notice of a claim will not relieve Customer of any liability hereunder (except to the extent that Customer has suffered actual and material prejudice from such failure). LN shall, at Customer’s expense give the Customer such reasonable assistance regarding the Claim, as the Customer may reasonably request.  If a claim for indemnification arises from any action, suit or proceeding, Customer shall, at its expense assume the defense of such action, suit or proceeding, with counsel of its choice, reasonably satisfactory to LN and the Customer shall conduct the defense actively and diligently. LN shall have the right, but not the duty, to participate in its own defense and to employ at its own expense counsel separate from counsel employed by the Customer.  The Customer shall be liable for the fees and expenses of counsel employed by LN if the Customer has not assumed the defense thereof.  Whether or not the Customer chooses to defend or prosecute any claim, all the parties hereto shall cooperate in the defense or prosecution thereof and shall furnish such records, information and testimony, and attend such conferences as are reasonably required.  The Customer will not consent to the entry of any judgment on or enter into any settlement with respect to a Claim without the prior written consent of LN, which shall not be unreasonably delayed, conditioned or withheld, unless the judgment or proposed settlement involves only the payment of money damages by the Customer and does not impose an injunction or other equitable relief upon LN.  LN shall not consent to the entry of any judgment on or enter into any settlement with respect to any Claim without the prior written consent of the Customer, which shall not be unreasonably delayed, conditioned or withheld.

7.    Warranty Disclaimer; Limitation of Liability

7.1    LN MAKES NO REPRESENTATIONS OR WARRANTIES,  EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THIS AGREEMENT, THE NEWSDESK SERVICES, THE NEWSDESK SUPPLIED CONTENT, THE ACCESS LINKS, THE LN SUPPLIED CONTENT OR ANY OTHER SERVICES PROVIDED HEREUNDER, ALL OF WHICH ARE PROVIDED “AS IS”.  LN DOES NOT WARRANT, REPRESENT OR GUARANTEE THAT THE USE OF THE NEWSDESK SERVICES, THE NEWSDESK SUPPLIED CONTENT, THE ACCESS LINKS, THE LN SUPPLIED CONTENT OR ANY OTHER SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED, UNDISRUPTED OR ERROR-FREE.

7.2    LN expressly disclaims any and all liability with regard to Customer’s access to and use of any (i) Web Content and (ii) Customer Provided Content.  LN has not entered into a licensing agreement or linking agreement with the owners of the websites that provide the Web Content and makes no representation that it has the right to sublicense access to the Web Content to Customer or any Authorized User.  Customer’s use of the Web Content  and Customer Provided Content, including any distribution or redistribution thereof, is solely at its own risk.  Customer will indemnify and hold LN harmless from any loss or damage suffered by LN as a result of a third party claim brought against LN as a result of use of Web Content or Customer Provided Content by Customer or any Authorized User.

7.3    TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF LN OR ITS AFFILIATES AND THEIR EMPLOYEES AND DIRECTORS (“THE COVERED PARTIES”) IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE NEWSDESK SERVICES, THE NEWSDESK SUPPLIED CONTENT, WEB CONTENT, CUSTOMER PROVIDED CONTENT OR THE ACCESS LINKS, EXCEED THE LESSER OF CUSTOMER’S ACTUAL DIRECT DAMAGES OR THE AMOUNT CUSTOMER PAID TO LN UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM AROSE. CUSTOMER’S RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH IT MAY HAVE AGAINST ANY COVERED PARTY.  

7.4    IN NO EVENT SHALL LN BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, LOSS OF OR DAMAGE TO SYSTEMS, PROGRAMS, OR DATA; COST OF PROCUREMENT OF SUBSTITUTE GOODS, ARISING FROM OR IN ANY WAY CONNECTED WITH ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, WHETHER IN CONTRACT (INCLUDING BREACH OF WARRANTY), TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUES OR LOSS OF PROFITS, EVEN IF IT HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES.

7.5    Each provision of this Section 7 excluding or limiting liability shall be construed separately, applying and surviving even if for any reason one or other of these provisions is held inapplicable or unenforceable in any circumstances and shall remain in force notwithstanding the expiration or termination of this Agreement.

8    Confidentiality

8.1    Confidential Information.  As used in this Agreement, the term “Confidential Information” shall mean any information disclosed by one party to the other pursuant to this Agreement which is in written, graphic, machine readable or other tangible form and is marked either “Confidential” or “Proprietary.” Confidential Information may also include oral information disclosed by one party to the other pursuant to this Agreement, provided that such information is designated as confidential at the time of disclosure and is reduced to writing by the disclosing party within a reasonable time (not to exceed 30 days) after its oral disclosure, and such writing is marked in a manner to indicate its confidential nature and delivered to the receiving party.  Without limiting the foregoing, the terms and conditions of this Agreement, and any information which concerns technical details of operation of any of LN’s services or Newsdesk Services, LN Intellectual Property, whether or not designated or marked as confidential, shall be deemed Confidential Information of LN.

8.2    Confidentiality.  Each party shall, during the Term and for one year thereafter, treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as set forth herein, and shall not disclose such Confidential Information to any third party.  Without limiting the foregoing, each of the Parties shall use at least the same degree of care which it uses to prevent the disclosure of its own Confidential Information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other party under this Agreement.
8.3    Exceptions.  Notwithstanding the above, neither party shall have liability to the other with regard to any information of the other which the receiving party can prove:

8.3.1    was public at the time it was disclosed or has become public through no fault of the receiving party;

8.3.2    was known to the receiving party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure;

8.3.3    is disclosed with the prior written approval of the disclosing party;

8.3.4    was independently developed by the receiving party without any use of the Confidential Information;

8.3.5    becomes known to the receiving party, without restriction, from a source other than the disclosing party without breach of this Agreement by the receiving party and otherwise not in violation of the disclosing party’s rights; or

8.3.6    is disclosed generally to third parties by the disclosing party without restrictions similar to those contained in this Agreement.
In addition, the receiving party shall be entitled to disclose the other party’s Confidential Information to the extent such disclosure is required by order or requirement of a court, administrative agency, or other governmental body, provided, however, that the receiving party shall, as long as permitted by applicable law and regulations, provide prompt notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.

9    Miscellaneous Provisions

9.1    Compliance with Laws and Jurisdiction.

9.1.1     Use of the Services inside the United States. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Ohio, without reference to conflict of laws principles. Use of the Services outside the United States. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed and construed in accordance with the laws of the Province of Ontario, Canada, without reference to conflict of laws principles.

9.1.2    The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
9.1.2 The Parties agree to comply with all applicable laws including without limitation laws and regulations regarding privacy and anti-spam.

9.2    Partial Invalidity. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect. The Parties agree in such circumstances to attempt in good faith to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.  The obligations of the Parties under any invalid or unenforceable provision of this Agreement shall be suspended while an attempt at such substitution is made.

9.3    Independent Contractors.  The Parties hereto are independent contractors in relation to each other. Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the Parties, or to authorize either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way or to hold itself out in its advertising or otherwise in any manner which would indicate or imply any such relationship with the other.

9.4    Modification. No addition to, or modification of, any provision of this Agreement shall be binding on the Parties unless made by a written instrument and signed by a duly authorised representative of each of the Parties.

9.5    Waiver. The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.  The rights and remedies contained in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.

9.6    Assignment.  Neither party shall assign any of its rights, obligations, or privileges (by operation of law or otherwise) hereunder without the prior written consent of the other party, provided that LN may assign (or be deemed to have assigned by operation of law) its rights under this Agreement to any of its affiliates or in the event of merger, reorganization or acquisition of all or substantially all of its business or assets having to do with the line of business to which this Agreement relates.  In the event that LN consents to an assignment by Customer to an entity that is an existing customer of LN, such assignee shall remain liable for the full amount of fees set forth in Section 4 above for the balance of the Term or Renewal Term, as applicable.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.  Any attempted assignment in violation of this Section shall be void. In the event that the Customer acquires another entity (“Customer Acquired Affiliate”), irrespective of the form of the acquisition i.e., whether by purchase of assets or equity, merger, consolidation or other business reorganization, the prior written consent of LN will be required with respect to the use of Services covered by this Agreement by such Customer Acquired Affiliate and applicable pricing with respect to any such Customer Acquired Affiliate shall be agreed to by the parties and set forth in a separate Amendment to this Agreement.

9.7    Notices

9.7.1    Any notices required to be given under this Agreement shall be in writing  and shall be personally delivered or sent by commercial courier service (e.g. Federal Express) or by first class mail (certified or registered, if available), or by telecopy or e-mail confirmed by first class mail (certified or registered, if available) to Attention: General Counsel at the address of the relevant party specified in this Agreement or at such other address as either party may designate for itself from time to time in accordance with this Section 9.7.

9.7.2   Notice shall, as long as addressed and sent in accordance with Section

9.7.1, be effective upon receipt by the party to which the notice is directed.

9.8    Force Majeure.  Notwithstanding anything else in this Agreement, and except for the obligation to pay money, no default, delay or failure to perform on the part of either party shall be considered a breach of this Agreement if such default, delay or failure to perform is due to causes beyond that party's reasonable control ("force majeure"), including but not limited to causes such as electric outages, blackouts, strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, or default of a common carrier.

9.9    Further Assurance: The Parties shall and, shall use their respective reasonable endeavors to procure, so far as they are able, that any necessary third parties shall execute and perform all such further deeds, documents, assurances, acts and things as either of the Parties may reasonably require, by notice in writing to the other, to carry the provisions of this Agreement into effect.

9.10    Entire Agreement. This Agreement (as amended from time to time) together with any document expressly referred to in any of its terms, contains the entire agreement between the Parties relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the Parties in relation to such matters.  No oral explanation or oral information given by any party shall alter the interpretation of this Agreement.  Each party confirms that, in agreeing to enter into this Agreement, it has not relied on any representation save insofar as the same has expressly been made a representation in this Agreement and agrees that it shall have no remedy in respect of any misrepresentation which has not become a term of this Agreement save that the agreement of either party contained in this Section shall not apply in respect of any fraudulent misrepresentation whether or not such has become a term of this Agreement.

9.11    Compliance with Law, Export Requirements, and Foreign Reshipment Liability.  Each Party agrees that it shall comply with all applicable federal, state and local laws, regulations, and export requirements in connection with its performance under this Agreement.  Regardless of any disclosure made by Customer to LN of an ultimate destination of the Newsdesk Services or technical data acquired from LN and, notwithstanding anything contained in this Agreement to the contrary, Customer will not modify, export, or re-export, either directly or indirectly, any of the Newsdesk Services or technical data, or portions thereof, without first obtaining any and all necessary licenses from the applicable government entity thereof or any other country that requires an export license or other governmental approval at the time of modification, export, or re-export. LN shall have the right to suspend performance of any of its obligations under this Agreement, without any prior notice being required and without any liability to Customer if Customer fails to comply with this provision.


Newsdesk EULA (CANADA) September 2015

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