National Today Data Licensing Agreement
Effective date: January 1, 2021
This National Today Data Licensing Agreement constitutes a binding agreement (“Agreement”) between you or the entity you represent (“you” or “Licensee” or “Client”) and TOP WORLDWIDE, LLC dba NATIONAL TODAY, a Texas corporation with its principal business address at 1601 East 7th Street, Austin, Texas 78702 (hereinafter “National Today”) governing the products and services licensed by National Today via its NationalToday.com website, holiday registry database, and other content channels (hereinafter “National Today Platform”).
By signing an order form, quote, or statement of work (hereinafter “Ordering Document”) that references inclusion of this Agreement, you are confirming that you have read, understand, and agree to be bound by this Agreement.
You represent and warrant that you understand that the products and services are being provided on a business-to-business (B2B) basis (i.e., for business use), as opposed to a business-to-consumer (B2C) basis (i.e., for personal use as an individual consumer). If you are entering into this Agreement as a representative of an entity, you represent that you have the authority to legally bind that entity to this Agreement.
In the event of any conflict between the Ordering Document and these terms, these terms shall prevail unless the Ordering Document expressly provides that it is modifying these terms with respect to such Agreement, though solely for the purposes of that particular Ordering Document and no other. Any capitalized terms not defined in a Statement of Work shall have their respective meanings as set forth in this Agreement.
1. Subscribed Services, Grant of License
(a) National Today shall, directly or through an affiliate, agree to provide to Licensee the products and/or services set forth in the Ordering Document (the “Services”). The Services may include information (the “Licensed Materials”), access to and/or use of software or other technology (the “National Today Technology”), or other services including premium support. Specific Services may be defined by and are subject to the services definitions and service-specific terms and conditions included with the Ordering Document. National Today will make the Services available to the Licensee via password-protected online access accessible by Licensee with usernames and passwords, via an application programmer interface (“API”), via an electronic spreadsheet or similar file, or as otherwise mutually agreed by the parties. Subject to the terms and conditions herein, National Today grants to Licensee a non-exclusive, non-transferable license to access and use the Services in accordance with this Agreement and during the duration of this Agreement (hereinafter “Term”).
(b) The Services will be provided as they exist and are updated and amended throughout the Term. Information provided as part of any Licensed Materials may be updated on an ongoing basis and provided according to the criteria used to define the scope of the subscribed Services. Licensee understands and acknowledges that the contents of Licensed Materials will change over time as the data is updated, and that at any given time it has a right to access and use the data to which it is subscribed as it exists at that time. Certain portions of the Services may be provided by National Today’s third-party licensors, and National Today’s ability to provide such information may be subject to the willingness of such licensors to continue to contract with National Today. Features and functions of the National Today Technology are provided “as is” and as they may be modified, supplemented, or removed from time to time in National Today’s sole discretion. National Today shall have no liability to Licensee for any modification to any Service, provided that the product or service provided substantially conforms to the description in the Ordering Document.
(c) Licensee acknowledges and agrees that, as between Licensee and National Today, the Licensed Materials, the National Today Technology, and any related documentation (including, without limitation, the content, layout, functions, design, appearance, trademarks, service marks, copyrights, patents, and other intellectual property comprising the Licensed Materials or National Today Technology) are the property of National Today, whether or not they are trademarked, copyrighted, or patented. Licensee acknowledges and agrees that this Agreement does not transfer any ownership, right, title, or interest in the Licensed Materials or National Today Technology, nor any part thereof, except the limited license provided hereunder, and Licensee expressly disclaims and waives any and all claims to any ownership interest in any such information or materials. This includes, without limitation, any Licensed Materials that Licensee downloads, prints, saves, or incorporates into other materials. Licensee further acknowledges and agrees that the Licensed Materials, in whole or in part, are unique, special, and valuable. Subject to the limited rights expressly granted hereunder, National Today, its affiliates and/or its licensors reserve all right, title, and interest in and to the Licensed Materials and National Today Technology, including all related intellectual property rights. No rights are granted to Licensee hereunder other than as expressly set forth herein.
(d) Third-Party Applications. “Third-Party Applications” means computer software programs and other technology that are provided or made available to Licensee by third parties, including those with which the National Today Technology may interoperate, including, for example, Licensee’s CRM, intranet, HR software, or social media software, if any. National Today may make available certain “Integration Tools”, which consist of National Today Technology designed to allow Licensee to use National Today Technology and the Licensed Materials in such a way as to interoperate with one or more Third-Party Applications. National Today is not responsible for and does not endorse any Third-Party Applications or websites linked to by National Today Technology.
(e) Responsibility for Results. A “Licensed Materials Holiday” means a record regarding a holiday, consisting of at a minimum such holiday’s name and description, contained in National Today’s database and made available to Licensee as part of any of the Services. Licensee acknowledges that it alone is responsible for the results obtained from its use of the Services and the National Today Platform, including without limitation the usefulness, completeness, accuracy and content of such results. If any such results are inaccurate or incomplete due to any defect in the Services or the National Today Platform, Licensee’s exclusive remedy and National Today’s sole obligation shall be to correct or modify the Services or National Today Platform at no additional charge to Licensee.
2. Authorized Use and Restrictions
(a) Authorized Users. Licensee shall be entitled to designate persons as Authorized Users up to the number of Authorized Users subscribed as stated in the Ordering Document. If Licensee designates additional persons as Authorized Users beyond the number subscribed, such designation may be deemed by National Today, to be confirmed by notice to Licensee, as Licensee’s subscription to such additional number of Authorized Users. In the event of such subscription, National Today may charge Licensee a corresponding additional Subscription Fee equal to the prevailing per-Authorized User rate multiplied by the period from the date of notice hereunder until the end of the then-current Term. Each Authorized User will be provided a unique username and password. Such usernames and passwords may not be shared and may not under any circumstances be used by anyone who is not an Authorized User. If any Authorized User’s login credentials are disclosed to any person who is not an Authorized User, National Today may, upon notice to Licensee, deem such sharing to be Licensee’s subscription to the number of additional Authorized Users equal to the number of persons to whom such credentials were disclosed. Licensee shall be responsible for compliance with the terms of this Agreement by all Authorized Users, including, without limitation, the restrictions on use and transfer of Licensed Materials set forth herein. Licensee acknowledges and agrees that Authorized Users must provide National Today with certain identifying information, including their name and a business email address, and that Authorized Users may be required to accept an end-user license agreement agreeing to National Today’s data policy and representing that they are authorized to access the Services on Licensee’s behalf.
(b) Qualification of Authorized Users. Licensee shall not designate any person as an Authorized User unless such person is: (1) a natural person and (2) an employee of Licensee. Licensee may designate a non-employee (i.e., an independent contractor or agency representative) as an Authorized User only with National Today’s prior permission and provided Licensee takes reasonable steps to ensure such non-employee uses the Services only as permitted under this Agreement. If the employment of any Authorized User that was in effect as of the date such person was designated as an Authorized User terminates, such person’s authorization to access the Services shall be revoked automatically without any further action by National Today. In the event of a termination, as described in the previous sentence, Licensee shall promptly notify National Today and take all reasonable steps to ensure that such person ceases accessing the Services. Licensee may reassign Authorized User designations at any time subject to the foregoing qualification requirements.
(c) Authorized Uses. Licensee shall not access or use the Services for any purpose except the content, marketing, human resources, or employee engagement activities of Licensee. Licensee shall not access or use the Licensed Materials for the benefit of or on behalf of any person or entity except Licensee. Subject to Licensee’s compliance with all applicable laws, rules, and regulations, Licensee may use the Services to: (i) view the Licensed Materials; (ii) display the Licensed Materials in a manner that is approved in each Ordering Document; and (iii) analyze the Licensed Materials in a manner that is approved in each Ordering Document. Licensee shall not permit anyone who is not an Authorized User to access or use the Services, including any Licensed Materials or any Authorized User login credentials. Licensee shall not distribute, sublicense, transfer, sell, offer for sale, disclose, or make available any of the Licensed Materials or any part of the Services to any third party. Licensee shall not incorporate any portion of the Services or Licensed Materials into Licensee’s own products or services. Licensee agrees not to use any data mining, robots, or similar data gathering and extraction tools on any portion of the National Today platform. Upon expiration or termination of this Agreement for any reason, Licensee shall cease accessing the Services and shall cease using the Licensed Materials in any way.
(d) Permitted Use of National Today Technology. Licensee is permitted to use the National Today Technology solely for the purpose of accessing and using the Licensed Materials as permitted by this Agreement. Licensee will not (i) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of the National Today Technology; (ii) reproduce, modify, create, or prepare derivative works of any of the National Today Technology or related documentation; (iii) distribute or display any of the National Today Technology or related documentation other than to Authorized Users; (iv) share, sell, rent, or lease or otherwise distribute access to the National Today Technology, or use the National Today Technology to operate any timesharing, service bureau, or similar business; (v) create any security interest in the National Today Technology; (vi) alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within or on the National Today Technology or related documentation; (vii) disclose the results of any National Today Technology or program benchmark tests to any third parties without National Today’s prior written consent; or (viii) use automated means, such as bots or crawlers, to access any National Today Technology or extract information therefrom (except such means as are included within the National Today Technology). Licensee may use National Today Technology only in accordance with this Agreement and not for the benefit of any third party, except with National Today’s express prior written permission.
(e) Limitations on Use of the Services. Licensee shall use the Services in a responsible and professional manner consistent with the intended and permissible uses herein and consistent with standard industry practice. Licensee shall not override or circumvent, or attempt to override or circumvent, any security feature, control, or use limits of the National Today Technology. Licensee will not use the Licensed Materials or National Today Technology for commercial purposes not permitted under this Agreement and shall not designate any person as an Authorized User if Licensee has reason to believe such person is likely to use the Services on behalf of a third party or otherwise in violation of this Agreement. National Today may use technological means to place reasonable use limits to prohibit excessive use, including excessive downloads or screen views that indicate a violation of this Agreement, such as sharing with third parties or attempting to circumvent limitations to purchased credits (if applicable). If Licensee’s access to the Services is limited under this paragraph, it may request that the limit be removed, and National Today may remove or modify a particular limitation if it determines in its sole and absolute discretion that the proposed use by Licensee is in good faith and otherwise consistent with this Agreement.
(f) Identification of Licensed Materials. Licensee shall not integrate Licensed Materials into any content management system (CMS), customer relationship management (CRM) system, or any other system without the express written permission of National Today. Any Licensed Materials that are downloaded and/or integrated into any such system after approval by National Today must be maintained with identifying information indicating that such materials originated with National Today by, for example, maintaining a content source credit of “Powered by National Today” with a link to NationalToday.com. Additionally, any use of the Licensed Materials or any authorized copying or reproduction thereof must include a copyright notice stating that the Licensed Materials and the material contained therein is owned by National Today.
(g) Unauthorized Access and Use. In the event National Today has a reasonable belief that Licensee or any Authorized User is engaged in any unauthorized access or use of the Licensed Materials or National Today Technology in violation of this Agreement, National Today, in its sole discretion, may immediately suspend Licensee’s access to the Licensed Materials and/or National Today Technology until such violation is resolved to National Today’s reasonable satisfaction. National Today will have no liability to Licensee for such period of suspension and a suspension shall have no effect on the Term of this Agreement nor on Licensee’s obligation to pay all agreed-upon fees.
(a) Licensee shall pay National Today all fees and expenses set forth in the applicable Ordering Document (hereinafter “Subscription Fees”).
(b) All wire transfer fees and/or currency conversion fees are to be paid by Licensee and not deducted from proceeds. Due to its higher efficiency, payment shall be made via electronic funds transfer, wire service, or other comparable electronic method. In the event that National Today elects to accept a physical check on a case-by-case basis, checks shall be made payable to “TOP Worldwide, LLC” and sent via overnight mail or deposited directly into National Today’s bank account. Credit card processing is available for an additional 4 percent fee.
(c) Any balance that remains unpaid more than fifteen (15) days from the due date under this Agreement or any applicable Statement of Work shall incur a penalty equal to two (2) percent of the balance outstanding per calendar month (or portion thereof) from the date that payment should have been received. If any payment is past due for ten (10) or more days, National Today reserves the right to suspend Services or access to National Today Technology until payment is received.
(d) Licensee is responsible for any applicable taxes, including, without limitation, any sales, use, levies, duties, or any value added or similar taxes payable with respect to Licensee’s subscription and assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise in the Ordering Document, all fees, rates, and estimates exclude sales taxes. If National Today believes any such tax applies to Licensee’s subscription and National Today has a duty to collect and remit such tax, the same may be set forth on an invoice to Licensee unless Licensee provides National Today with a valid tax exemption certificate, direct pay permit, or multi-state use certificate, and shall be paid by Licensee immediately or as provided in such invoice. Licensee shall indemnify, defend, and hold harmless National Today and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns against any and all actual or threatened claims, actions, or proceedings of any taxing authority arising from or related to the failure to pay taxes owed by Licensee, except to the extent that any such claims, action, or proceeding is directly caused by a failure of National Today to remit amounts collected for such purpose from Licensee. National Today is solely responsible for taxes based upon National Today’s net income, assets, payroll, property, and employees.
4. Term and Termination
(a) The Initial Term of the Agreement is that which is set forth in the Ordering Document (together with any period of extension under Section 4(b) hereof, the “Term”). The Agreement is not cancellable and shall remain in effect until it expires or is earlier terminated according to its terms.
(b) Automatic Extension of the Term. On the date that is 60 days prior to the last day of the Term (the “Extension Date”), the Term will automatically extend for a period equal to the length of the Initial Term or one year, whichever is longer, unless either party, on or before the Extension Date, notifies the other in writing that the Term shall not so extend. In the event that the Term is extended under this paragraph: (1) Licensee shall remain subscribed during such period of extension to the Services to which it was subscribed as of the Extension Date, and (2) the fees to be paid to National Today for such Services during such period of extension shall be equal to the annualized amount of the applicable fee to all Services to which Licensee was subscribed as of the Extension Date. Fees for the period of extension hereunder shall be due upon extension of the Term, and shall be payable as invoiced. National Today will invoice fees for any period of extension in a manner substantially consistent with the payment schedule that applied to the Agreement as of the Extension Date.
(c) Either party may terminate this Agreement immediately for cause in the event the other party breaches a material provision of this Agreement and does not cure such breach within thirty (30) days of the non-breaching party’s written notice thereof. If this Agreement is terminated by National Today due to a material breach by Licensee, then all fees payable to be paid to National Today for the remainder of the then-current Term shall be immediately due and payable to National Today, and Licensee shall promptly remit all such fees to National Today. If this Agreement is terminated by Licensee due to an uncured material breach by National Today, then National Today shall promptly refund the pro-rata amount of any pre-paid fees attributable to periods after the date of such termination.
(d) National Today may terminate this Agreement immediately upon written notice to Licensee, in which case National Today shall return any monies paid for Services or Licensed Materials not yet delivered as of the date of termination, but National Today shall have no further obligation or liability with respect to this Agreement.
(e) Expiration or Termination for any Reason. Upon expiration or termination of this Agreement for any reason, Licensee acknowledges and agrees that its access to the Licensed Materials may be automatically terminated, all passwords and individual accounts removed, and all information that has been uploaded into National Today’s systems by Licensee destroyed. Upon expiration or termination of this Agreement for any reason, unless otherwise provided herein, Licensee agrees to destroy any and all copies of Licensed Materials and any information it has obtained from the Licensed Materials, whether in hard copy or electronic form.
5. Additional Representations and Responsibilities
(a) Licensee represents and warrants that: (1) it is duly organized and validly existing and authorized to do business in the jurisdictions where it operates; and (2) it has the requisite power and authority to enter this Agreement and entering and complying with its obligations under this Agreement does not violate any legal obligation by which such party is bound.
(b) Licensee represents and warrants, and covenants that it will not, in connection with this Agreement, including its use of or access to the Services, engage in, encourage, or permit conduct that violates or would violate any applicable law, rule, or regulation or any right of any third party.
(c) Licensee and its officers, directors, members, managers, agents, and employees (as applicable) shall not disparage National Today, or National Today, officers, directors, agents, or employees in any public or private forum, or otherwise take any action which could reasonably be expected to adversely affect the reputation of National Today or the personal or professional reputation of any of National Today’s officers, directors, agents, or employees.
(d) Licensee agrees to not solicit or work directly with persons who are current employees or contractors of National Today, or who have been employed or contracted by National Today, within one year prior to the onset of the solicitation or direct working relationship. Should Licensee hire, solicit, or engage a current employee or contractor of National Today, or an employee or contractor whose employment or engagement with National Today, ended within one year of the onset of Licensee hiring, soliciting or engaging said employee or contractor, Licensee agrees to immediately pay National Today, an amount equal to 50% of the market rate annual compensation for the position (as determined by com, 50th percentile, at the date of hire) regardless of the duration of employment or engagement or whether the person is employed or engaged on a permanent or temporary basis.
(e) Except for the express representations and warranties stated herein, National Today makes no guarantees, warranties or representations of any kind with regard to and cannot ensure the accuracy, completeness, timeliness, inoffensive nature, quality, fitness for a particular purpose, authenticity, or reliability of any information made available on and through the Licensed Materials. National Today specifically disclaims any and all liability for any loss or damage of any kind that Licensee may incur, directly or indirectly, in connection with or arising from, your access to, use of or reliance upon the Licensed Materials, including any errors or omissions in the information contained therein. Your use of and reliance upon any information contained in the Licensed Materials is solely at your own risk.
(f) Nothing in the preceding paragraphs prohibits either party from testifying truthfully in any valid judicial process.
6. National Today Website Policies
(a) National Today publishes the NationalToday.com website, an online content and marketing platform that helps consumers celebrate fun, interesting, and noteworthy holidays and cultural events in the U.S. and throughout the world (hereinafter “Consumer Website”).
(b) Publisher shall retain ownership of all aspects of the National Today Platform or Consumer Website, and the copyright to all other content published or stored herein.
7. Indemnification and Attorney Fees
(a) Licensee agrees to indemnify, defend, and hold harmless National Today and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns from and against any and all actual or threatened claims of third parties arising out of or in connection with (1) Licensee’s access or use of the Licensed Materials in violation of any law, (2) Licensee’s violation of any provision of this Agreement, (3) the use of any Licensed Materials or National Today Technology by any third party to whom Licensee has granted access (including access obtained through use of the usernames and passwords assigned to Licensee and its personnel).
(b) In any action brought to enforce any provision of this Agreement, the losing party will pay the prevailing party’s reasonable attorney fees and costs. An award of attorney fees shall include attorney time spent in the process of attempting collection prior to litigation. The parties acknowledge that each has been represented by counsel in the negotiation and execution of this Agreement. Accordingly, the preceding sentence, which provides for attorney fees and costs, applies only to the compensation provisions of the Agreement and each Ordering Document and to no other provision.
8. Proprietary Rights
(a) National Today Intellectual Property. As between the parties, National Today retains title to and ownership of all rights (including copyright, trademark, patent, trade secret, and all other intellectual property rights) in and to the Licensed Materials and the National Today Platform. The Licensee acquires no rights whatsoever to all or any part of the Licensed Materials or National Today Platform other than the limited use rights set forth above and in each Ordering Document. Unless expressly set forth otherwise in this Agreement, National Today shall retain all of its respective rights of publicity and likeness. All rights not expressly granted to the Licensee are reserved by National Today.
(a) For the purpose of this Agreement, “Confidential Information” means nonpublic information disclosed by National Today to Licensee, either directly or indirectly, in writing, orally, or to which the Licensee may have access, which (i) a reasonable person would consider confidential, or (ii) is marked “confidential” or “proprietary” or some similar designation by National Today. Confidential Information will not, however, include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by National Today to the Licensee other than as a result of a violation of this Agreement by the Licensee; (iii) is already in the possession of the Licensee at the time of disclosure by National Today; (iv) is obtained by Licensee from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by Licensee without use of or reference to National Today’s Confidential Information.
(b) Licensee shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, and shall take actions reasonably necessary and appropriate to prevent the unauthorized disclosure of the Confidential Information, at all times exercising at least a reasonable level of care. Licensee agrees to restrict access to the Confidential Information to those who require access in order to perform its obligations under this Agreement or any applicable Ordering Document.
(c) Notwithstanding the foregoing, Licensee may disclose the other party’s Confidential Information as required by applicable law or regulation or by a valid order of a court or government agency with appropriate jurisdiction over the parties and the subject matter of the information, but only to the extent of and for the purposes of such law, regulation or order and only after National Today is afforded a reasonable opportunity to oppose such disclosure or seek protection against further disclosure of the information.
10. Additional Terms
(a) This Agreement, together with each Statement of Work entered into pursuant to this Agreement, sets forth the entire understanding between the parties hereto, and supersedes and replaces all prior or contemporaneous oral or written agreements between the parties concerning the matters contemplated in this Agreement. This Agreement may not be amended, modified or extended in any way by either party without the written agreement of other party. Time is of the essence with respect to dates and timelines set forth in this Agreement.
(b) No waiver, by either party, whether express or implied, of any provision under of this Agreement or of any breach or default of the other party (or any related remedy), shall constitute a waiver of any other provision of this Agreement or prevent such party from enforcing any provision of this Agreement or from seeking a remedy as to any subsequent breach or default. No failure or delay by either party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or privilege preclude any other or further exercise thereof.
(c) Nothing contained in this Agreement shall be deemed to constitute either party as the agent or representative, or employer or employee, of the other party, or both parties as joint venturers or partners for any purpose.
(d) In no event shall National Today or its officers, directors, employees, affiliates or agents be liable for any indirect, incidental, special, punitive, exemplary or consequential damages, including but not limited to lost profits, loss of goodwill, or speculative damages. The aggregate liability of National Today for all work performed under this Agreement shall in no event exceed the contract value of any applicable Ordering Document.
(e) This Agreement and/or any Ordering Document is the result of negotiations between the parties and has been reviewed by each of the parties hereto and their respective counsel, if any. Accordingly, this Agreement and/or any Ordering Document shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto.
(f) National Today may assign this Agreement and/or any Ordering Document, without prior written consent, to any corporation or other entity “assignee” with or into which National Today may hereafter merge or consolidate or to which National Today may transfer all or substantially all of its assets, including but not limited to an entity with substantially the same ownership structure as National Today. The assignee shall assume all obligations of National Today hereunder as fully as if it had been originally made a party to the Agreement.
(g) This Agreement (and any dispute arising from the relationship between the parties to this Agreement) shall be governed by Texas law. Any dispute that arises under or relates to this Agreement shall be resolved in the state and federal courts within Travis county, Texas.
(h) Those provisions which have continuing applicability past the termination date of this Agreement, such as indemnification, non-disparagement, and attorney fees, shall survive the termination of this Agreement.