In a nutshell, these terms say:
- You have the right to use the Deliverables personally and within your business entity.
- The Deliverables contain 60 Decibels’ trade secrets, confidential and proprietary information, and original works of authorship, for which 60 Decibels maintains and asserts all of its rights and protections under Copyright, Trade Secrets, and other applicable laws.
- You may not sell, publish, copy, edit or otherwise share the Deliverables outside of your business entity, and you must keep 60 Decibels’ proprietary and confidential information confidential. A breach of these obligations will cause economic harm to 60 Decibels.
In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. THE DELIVERABLES. 60 Decibels has: (i) collected and assembled the Data, (ii) created the Dashboard, and (iii) created the Report. 60 Decibels owns any and all intellectual property rights in and to the Deliverables and the information contained therein. Specifically, (a) the Data constitutes trade secrets of 60 Decibels, (b) 60 Decibels is the owner of the copyright to the Report and the Dashboard, and (c) 60 Decibels possesses, maintains, and hereby asserts all of the rights granted to it under: (x) the United States Copyright Act of 1976 (17 U.S.C. § 106 et seq), (y) the Economic Espionage Act (18 U.S.C. §§ 1831–1839), as amended by the Defend Trade Secrets Act of 2016, and (z) all other applicable state trade secrets laws and equivalents in foreign jurisdictions (collectively, “Intellectual Property Laws”). 60 Decibels shall be responsible for the Deliverables only to the extent expressly set forth in these Terms.
2. YOUR RIGHT TO USE THE DELIVERABLES. Upon payment of all amounts due (as set forth in Section 4) and subject to your agreement to and compliance with these Terms, 60 Decibels, pursuant to its rights under applicable Intellectual Property Laws, shall make the Deliverables available to You. You shall have a limited license to use the Deliverables (subject to the restrictions set forth in Section 3) (the “License”). Any proprietary information contained in the Deliverables that is owned by 60 Decibels shall remain owned solely and exclusively by 60 Decibels. To the extent the Deliverables contain 60 Decibels’ proprietary information, including report formats and templates used to convey the Data or other information contained therein, such proprietary information shall be included in the License.
3. RESTRICTIONS AND RETAINED RIGHTS. 60 Decibels reserves all rights not expressly granted to You by these Terms. Except for the limited license granted to You in Section 2, no other license or rights are granted to You by implication, estoppel, or otherwise, other than as expressly granted by 60 Decibels. Without limiting any rights granted to You in Section 2, You have no right to, and shall not, claim any ownership or other right, title, or interest in or to, or challenge 60 Decibels’ ownership or other right, title, or interest in or to the Deliverables. No other rights that may be granted by 17 U.S.C. § 106 et seq., are contained in the License, and are hereby expressly retained by 60 Decibels. The License granted to You is non-assignable and non-sublicensable. Outside of the Contracting Entity, You may not sell, publish, copy, translate, edit, alter, modify, reproduce, prepare derivative works of, distribute, display or otherwise share the Deliverables. De minimis use of portions of the Deliverables for external business purposes is not prohibited. Within the Contracting Entity, You may publish, copy, translate, edit, alter, modify, reproduce, prepare derivative works of, distribute, display or otherwise share the Deliverables. Any rights granted to You under these Terms are expressly non-exclusive; for clarity, the execution of these Terms with You shall in no way prohibit 60 Decibels from executing the same or similar terms with another similarly situated to You or otherwise allowing anyone else to use the Deliverables. You shall not use the Deliverables other than in conformance with these Terms; any other use shall constitute a violation of these terms and an infringement of 60 Decibels’ intellectual property rights to the Deliverables under all applicable Intellectual Property Laws or shall require a separate writing duly executed by and between You and 60 Decibels. You acknowledge that, as between the Parties, 60 Decibels owns all right, title and interest to all of 60 Decibels’ business and consulting methodologies, business methods, concepts, know-how, analytical frameworks, work papers, report formats and templates, data, databases, analytical approaches and information, including any copyrights and other intellectual property rights with respect to anything contained in the Deliverables. You shall not dispute or challenge, or assist any person or entity in disputing or challenging, 60 Decibels’ rights in and to the Deliverables or the Deliverables’ validity. 60 Decibels has the sole right, in its discretion and at its expense to file, prosecute, and maintain all applications and registrations for the Deliverables. You shall promptly notify 60 Decibels in writing of any actual, suspected, or threatened infringement or unauthorized use or distribution of the Deliverables by any third party of which You become aware. 60 Decibels has the sole right, in its discretion, to bring any action or proceeding with respect to any such infringement or other conflict and to control the conduct of, and retain any monetary recovery resulting from any such action or proceeding (including any settlement). You shall provide 60 Decibels with all assistance 60 Decibels may reasonably request, at 60 Decibels’ expense, in connection with any such action or proceeding. You may not assign or otherwise transfer the Deliverables or any rights, or otherwise transfer any of your obligations, under these Terms, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without 60 Decibels’ prior written consent.
4. FEES. Your License becomes valid upon payment of the one-time Use Fee due at point of purchase (the “Fee“), for which You will receive proof of payment.
5. NOTICE OF COPYRIGHT REGISTRATION. 60 Decibels is in the process of registering its copyright to the Report with the U.S. Copyright Office. 60 Decibels will provide notice to You of the copyright registration number when it is received.
6. PROPRIETARY RIGHTS; PRESERVATION OF LICENSED TRADE SECRETS. You acknowledge that: (i) the Data are 60 Decibels’ Confidential Information and are subject to the confidentiality and non-disclosure obligations under Section 7 below; and (ii) the Data derive economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, any other person or entity. You shall use reasonable efforts to preserve the secrecy of the Data at all times during the term of these Terms.
7. CONFIDENTIALITY. In connection with these Terms or through the Deliverables, You may gain access to information that is treated as confidential by 60 Decibels, including, but not limited to, the Data, these Terms, and information about 60 Decibels’ business operations and strategies, goods and services, customers, pricing, marketing, and other sensitive and proprietary information (“Confidential Information”). You shall protect such Confidential Information in the same manner as You protect your own Confidential Information of like kind, but in no event with less than reasonable care. You shall not disclose or use such Confidential Information, except and unless, with respect to the Data, such disclosure is explicitly allowed under Sections 2 or 3 of these Terms. Furthermore, these provisions shall not apply to: (i) information previously known to You; (ii) information which is or has become available to the public in general through no fault of, or breach of an agreement by, You; (iii) information received from a third party not subject to any confidentiality obligations to 60 Decibels; or (iv) information which is independently developed by You. To the extent You are required to disclose Confidential Information to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, You may do so only once You have first given written notice to 60 Decibels so that it may obtain a protective order or otherwise limit the extent of the disclosure.
8. TERM; TERMINATION. These Terms are effective as of the date of execution, which execution shall be completed at the time You: (i) agree to these Terms, evidenced by your signature below, and (ii) successfully submit payment of the Fee set forth in Section 4. These Terms will continue in effect unless and until terminated by a Party pursuant to this Section 8.
8.1 TERMINATION. 60 Decibels may terminate these Terms at any time if You breach, or 60 Decibels has bona fide reason to believe You are in breach of, these Terms.
8.2 EFFECT OF TERMINATION. Upon termination of these Terms: (i) all rights and licenses granted under these Terms will automatically and immediately terminate; (ii) You shall immediately cease all use and possession of the Deliverables and shall so confirm in writing to 60 Decibels. The Parties’ rights and obligations set forth in Sections 7 (Confidentiality), 8.2 (Effect of Termination), 10 (Limitation of Liability), and 11 (General), and any right, obligation, or required performance of the Parties under these Terms that, under applicable law or by its express terms or nature and context is intended to survive termination of these Terms, will survive any such termination.
9. REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants: (i) it has the full power and authority to enter into these Terms; (ii) its execution and performance of these Terms has been duly authorized by all necessary corporate action on behalf of that Party; (iii) the person agreeing to these Terms, if on behalf of an entity, has the full authority to do so; and (iv) its execution of these Terms does not and shall not conflict with or result in a breach of the terms, conditions or provisions of, or constitute a default under, any agreement to which it is or may become party or instrument by which it is or may become bound. 60 Decibels represents and warrants that: (a) it is the sole and exclusive owner of all right, title, and interest in and to the Deliverables, (b) it is the record owner of any and all Copyrights, Trademarks, or other intellectual property rights contained therein, and (c) it has not granted any conflicting licenses to the Deliverables, or any portion of the intellectual property contained therein, to any other third party. To 60 Decibels’ knowledge, your exercise of the rights and License granted under these Terms will not infringe or otherwise conflict with any third party’s rights.
9.1. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9, 60 DECIBELS EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, IN CONNECTION WITH THESE TERMS AND THE DELIVERABLES, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, 60 DECIBELS MAKES NO REPRESENTATION OR WARRANTY THAT ANY INFORMATION CONTAINED IN THE DELIVERABLES IS VALID OR THAT THE EXERCISE BY YOU OF ANY RIGHTS GRANTED UNDER THESE TERMS WILL NOT INFRINGE THE RIGHTS OF ANY PERSON.
10. LIMITATION OF LIABILITY. EXCEPT FOR YOUR LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT OR A PARTY’S LIABILITY FOR BREACH OF CONFIDENTIALITY UNDER SECTION 7 OR A PARTY’S GROSSLY NEGLIGENT ACTS OR OMISSIONS OR WILLFUL MISCONDUCT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES RELATING TO THESE TERMS OR USE OF THE DELIVERABLES HEREUNDER, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.1. RELATIONSHIP. The relationship between the Parties is that of independent contractors. Nothing contained in these Terms creates any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party has authority to contract for or bind the other Party in any manner whatsoever.
11.2. NOTICES. All correspondence or notices required or permitted to be given under these Terms must be in writing, in English, and addressed to the other Party at its “Appropriate Address.” The Appropriate Address for 60 Decibels is: 228 Park Ave S PMB 54413 New York, NY 10003 USA, firstname.lastname@example.org. Attention: Director of Operations. The Appropriate Address for You shall be the address on file with 60 Decibels at the time of the execution of these Terms, unless or until You so inform 60 Decibels of a change of address. Each Party shall deliver all notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a notice is effective only (i) upon receipt by the receiving Party and (ii) if the Party giving the notice has complied with the requirements of this Section. Such communications must be sent to the respective Parties at its Appropriate Address.
11.3. NO THIRD-PARTY BENEFICIARIES. These Terms solely benefit the Parties and their respective permitted successors and assigns, and nothing in these Terms, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
11.4. AMENDMENT; WAIVER. No amendment to these Terms will be effective unless it is in writing and signed by both Parties. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the waiving Party. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
11.5. SEVERABILITY. If any term or provision of these Terms is found by any court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
11.6. GOVERNING LAW. These Terms, and all matters arising out of or relating to these Terms, shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to any choice or conflict of laws provisions. Any legal suit, action, or proceeding arising out of or relating to these Terms shall be instituted exclusively in the federal or state courts in each case located in New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any legal suit, action, or proceeding.
11.7. LIQUIDATED DAMAGES. If You materially breach these Terms, including, but not limited to, by: (i) unauthorized or infringing use of the Deliverables, or 60 Decibels’ intellectual property contained therein, (ii) violating your Confidentiality obligations under Section 7, or (iii) distributing the Deliverables or any portion thereof that is greater than a de minimis use for external business purposes, outside of the Contracting Entity without the express, written consent of 60 Decibels, You shall be liable to 60 Decibels for an amount equal to two hundred fifty thousand dollars (USD) ($250,000) (the “Liquidated Damages”). The Parties intend that the Liquidated Damages constitute compensation for lost revenues incurred by 60 Decibels as a result of your breach, and not a penalty. The Parties acknowledge and agree that 60 Decibels’ harm caused by your breach may be impossible or very difficult to accurately estimate as of the Effective Date, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from your material breach. Upon 60 Decibels’ election to exercise this Section 11.7 as a remedy at law, your payment of the Liquidated Damages shall be your sole liability and 60 Decibels’ exclusive remedy at law for your breach.
11.8. STATUTORY AND ACTUAL DAMAGES. In the event of a claim at law against You for:
A. STATUTORY DAMAGES. An infringing use of the Report, or any portion thereof, by You, 60 Decibels, pursuant to the rights granted to it under 17 U.S.C. § 504, in lieu of the Liquidated Damages set forth in Section 11.7, may elect to collect from You statutory damages as provided for in 17 U.S.C. § 504 and as a court of competent jurisdiction may find are duly owed to 60 Decibels by You; or
B. ACTUAL DAMAGES. Misappropriation of the Data, or any portion thereof, by You, 60 Decibels, pursuant to the rights granted to it under applicable federal or state trade secrets law, including
18 U.S.C. §§ 1831-1839, in lieu of the Liquidated Damages set forth in Section 11.7, may elect to collect from You a damage award in the amount of actual losses, unjust enrichment, exemplary damages, and attorneys’ fees, as a court of competent jurisdiction may find are duly owed to 60 Decibels by You.
11.9. EQUITABLE RELIEF. The Parties acknowledge that a breach of these Terms by You may cause irreparable harm to 60 Decibels, for which an award of damages would not be adequate compensation and, in the event of such a breach or threatened breach, 60 Decibels will be entitled to equitable relief, including in the form of a restraining order, orders for preliminary or permanent injunction, specific performance, and any other relief that may be available from any court. These remedies are not exclusive but are in addition to all other remedies available under these Terms at law or in equity, subject to any express exclusions or limitations in these Terms to the contrary.
11.10. ENTIRE AGREEMENT. These Terms, including and together with any related exhibits, constitute the sole and entire agreement of 60 Decibels and You with respect to the subject matter contained herein, and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
11.11. COUNTERPARTS. This agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
If You have any questions regarding your use of the Deliverables or these Terms, You may contact 60 Decibels at: email@example.com.