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1. Definitions
In this Agreement, words and phrases have the meaning given to them in the Term Sheet and below: “Access Method” means a method of electronic access to the AES Site as specified in the Term Sheet. "AES" means American Energy Society “AES Site” means https://www.energysociety.org/ “Channel” means either the AES Site or a Third Party Channel. “Content” means AES content provided or made available by AES to the Client under this Agreement from the AES Site and mailings only (including without limitation via any Third Party Channel) in any form and media, including without limitation any literary work (text, tables, data, datasets, and computations) and artistic work (including graphic works such as drawings, diagrams, maps, charts, plans, videos and photographs). “Copyright Policy” means AES’s current copyright policy available under Terms of Use, Acceptable Site Use, Section (a), or by request. “Data Protection Laws” means any data protection legislation applicable to AES’s processing of Reader Data from time to time, including the Data Protection Act 2018 and all subordinate legislation, the General Data Protection Regulation (“GDPR”) and the Regulation on Privacy and Electronic Communications. “IPRs” means all present and future copyright, moral rights, database rights, trade mark rights, trade secrets and all related rights and neighboring rights and any other intellectual property rights of whatsoever nature throughout the world whether or not registered or capable of registration including all renewals and/or extensions thereof. “Marks” means all trade marks, service marks, trade names, logos and other branding (whether registered or not) of AES or its licensors. “Privacy Policy” means AES’s current privacy policy available by clicking on the “Privacy policy” link on the bottom of each page of the AES Site. “Reader Data” means any personal data (as defined in GDPR) relating to a Reader. “Term” means the period commencing on the Service Start Date and ending on the Service End Date. “Terms and Conditions” means these terms and conditions. “Term Sheet” means a Term Sheet signed by AES and Client which incorporates these Terms and Conditions. “Third Party” means the owner and/or operator of a Third Party Channel. “Third Party Channel” means a third party service that provides its customers, including the Client, with access to a variety of publisher content, under a direct license with the Client. “Third Party Channel Agreement” means the Client’s agreement with a Third Party governing the Client’s use of the Third Party Channel. The headings in this Agreement do not affect its interpretation. Unless the context otherwise requires the words “include” and “including” shall be construed without limitation, and any reference in this Agreement to any statute or statutory provision shall be deemed to include any subsequent re-enactment or amending provision. 2. Access to the AES Site 2.1 From the Service Start Date AES shall provide the Readers with access to the AES Site via the Access Method. 2.2 The Client (including the Readers) shall keep confidential and shall not share with any third party any sign-up link, PIN, ID or similar code (if applicable) that AES provides to facilitate Reader access to the AES Site. This clause shall not apply to Access Manager or IP access. 2.3 The Content is only for Readers’ general information and entertainment purposes and is not intended to address any particular requirements. The Content does not constitute any form of advice, recommendation, representation, endorsement or arrangement by AES. It is not intended to be and should not be relied upon by the Client or its Readers in making (or refraining from making) any specific investment, purchase, sale or other decisions. Appropriate independent advice should be obtained before making any such decision. 3. Use of Content and IPRs 3.1 Subject to the terms of this Agreement, AES hereby grants to the Client a non exclusive, non-transferable, non sublicensable license to allow the Readers to: (a) read Content for internal business use, personal use, educational use, and for research and current awareness purposes; and (b) use the Content in accordance with the Copyright Policy. 3.2 Except as expressly permitted by this Agreement, the Client shall not and shall ensure that its Readers do not copy, cut and paste, email, reproduce, publish, distribute, redistribute, broadcast, transmit, modify, adapt, edit, abstract, create derivative works of, store, archive, publicly display, sell or in any way commercially exploit any Content (whether received from AES under this Agreement or otherwise) or use the Content for the purposes of endorsement of a business, product or service. 3.3 The Client agrees and acknowledges that:
3.4 The Client shall not allow anyone other than Readers to read Content via the Third Party Channels. The Client shall only provide Readers with access to the AES Site via the Access Method and shall not provide access to anyone other than a Reader. 3.5 AES reserves complete editorial freedom in the form and content of the Content and may add to, remove or edit Content at any time on a permanent or temporary basis and with or without notice. 3.6 AES reserves the right to monitor Content usage by all Readers in accordance with the Privacy Policy available on AES Site. 3.7 This Agreement does not constitute a sale of the Content. Except as expressly provided in this Agreement no rights or licenses in the Content are granted to the Client or the Readers. The Client acknowledges that as between itself and AES, AES (or its licensors) is throughout the world the owner of all IPRs in the Content. 3.8 The Client acknowledges and agrees that: (a) all use of AES’s Marks hereunder inures to the benefit of AES, (b) AES’s Marks will remain the exclusive property of AES, (c) nothing in this Agreement shall confer upon the Client any right of ownership in AES’s Marks, and (d) the Client shall not now or in the future contest the validity of AES’s Marks or take any action impairing the rights of AES in its Marks. 3.9 The Client shall not remove, shrink or otherwise modify the copyright or any other proprietary notice or any branding or logo of AES (or its licensors) contained in any Content. 3.10 Any additional use of Content outside the scope of the rights granted in this Agreement shall require express permission from AES and may incur additional costs. 4. Reader Data 4.1 In its processing of Reader Data, AES shall comply at all times with:
4.2 The Client acknowledges that AES processes Reader Data as a controller, and that AES’s processing of that Reader Data shall (as between AES and each Reader) be governed by the Data Protection Laws and the Privacy Policy. 4.3 AES shall ensure that each Reader who registers with the AES Site is made aware that the Privacy Policy will apply to processing of Reader Data. AES shall also give each Reader the opportunity to give or withhold consent for marketing and other communications, in accordance with the Data Protection Laws. 4.4 Where the Client provides any details of Readers to AES (for example, in order for AES to send account activation emails to Readers, or for enabling SSO where available), the Client is responsible for ensuring that this complies with the Data Protection Laws and that AES is able to use those details for the purpose for which the Client provides them. The Client is also responsible for ensuring that any other processing of Reader Data by the Client complies with the Data Protection Laws. 4.5 AES shall not be restricted from using any anonymous data which it may receive as a result of Readers using the Content. 4.6 In this clause 4, the expressions “personal data”, “anonymous data”, “process”, “controller” and “processor” have the meanings given to them in the GDPR. 5. Warranties and Liability 5.1 Each party warrants and represents to the other that it has the full power and authority to enter into this Agreement. 5.2 AES warrants and represents to the Client that: (a) to the best of its knowledge the Content does not include any information or material which infringes the IPRs of any third party, is defamatory, or is unlawful; (b) it has the right to grant the license granted under this Agreement; and (c) it shall use reasonable care and skill in its provision of the Content to the Client under this Agreement. 5.3 The Client warrants and represents to AES that: (a) where it has requested the Content to be delivered via a Third Party Channel, that it is entitled to use the Third Party Channel and has a valid subsisting agreement with the Third Party Channel for the use of that Channel; (b) it is entitled to provide any Reader Data relating to a Reader that may be provided by the Client to AES; and (c) it shall ensure that the Readers shall only use the Content in accordance with the terms of this Agreement and shall not infringe any of AES’s IPRs in the Content. 5.4 Except as expressly set out in this Agreement and to the extent permissible by law, all warranties, conditions, representations, terms or undertakings, express or implied, statutory or otherwise are hereby excluded. 5.5 AES shall not have any liability to the Client to the extent such liability arises as a result of a breach of this Agreement by the Client or a breach of the Copyright Policy by a Reader. 5.6 Neither party shall have any liability to the other for: (a) any indirect, special, incidental or consequential loss or damage of any kind whatsoever; or (b) any loss of profits, loss of revenue, anticipated savings, loss of business or loss of data, arising directly or indirectly from this Agreement whether such damages were reasonably foreseeable or actually foreseen. 5.7 Excluding AES’s right to payment of Fees owing, the aggregate liability of either party arising out of or in connection with this Agreement (whether for breach of contract, negligence or otherwise) shall be limited to direct damages. Such damages shall not exceed twice the aggregate amount of the Fees paid or (if greater) payable by the Client to AES under this Agreement in the 12 months prior to when the claim arose. 5.8 Nothing in this Agreement shall operate to exclude or restrict: (a) either party’s liability for (i) death or personal injury caused by its negligence; or (ii) fraud or fraudulent misrepresentation; (iii) any claim under an indemnity contained in this Agreement; or (iv) any liability which cannot be limited or excluded by law; or (b) Client’s liability for any misuse of AES’s IPRs by the Client or the Readers (including any use of the Content outside the scope of this Agreement); or (c) Client’s obligation to pay the Fees. 6. Payment 6.1 The Client shall pay the Fees as set out in the Term Sheet and promptly provide such information as may reasonably be required in order for AES to provide the Client with a valid invoice. 6.2 The Fee and all other charges are exclusive of value added tax (VAT) or any other sales or similar taxes which are or may be applicable. The Fee shall be paid to AES in full without deduction of any taxes, withholding taxes, charges and other applicable duties which may be imposed. If the Client is required by law to make a set-off, deduction or withholding then it shall pay such additional amount to ensure that the net amount received by AES is equal to the amount AES would have been entitled to receive under this Agreement in the absence of any requirement to make such set-off, deduction or withholding. Client shall provide AES with a valid tax certificate evidencing such amount withheld within 30 days of such set-off, deduction or withholding. 7. Termination 7.1 This Agreement shall commence on the date both parties have signed the Term Sheet and, subject to the terms of this Agreement, shall continue until the Service End Date when it shall automatically terminate. 7.2 Either party may terminate this Agreement on immediate written notice if: (a) the other party is in material or persistent breach of this Agreement and, in the case of a breach capable of remedy, has not remedied the breach within 14 days of being notified of it; or (b) the other party ceases to carry on its business or has a liquidator, receiver or administrator appointed to it or over any part of its undertaking or assets or passes a resolution for its winding up or a court of competent jurisdiction makes an administration order or liquidation order or similar order, or enters into any voluntary arrangement with its creditors, or is unable to pay its debts as they fall due or any similar event occurs in any jurisdiction. 7.3 AES may terminate this Agreement at any time immediately on written notice if Client (or any of its shareholders or directors) become subject to any Sanction, or continuation of the Agreement would (in the reasonable opinion of AES) expose AES or any of its affiliated companies to any Sanction. “Sanction” means any sanction, prohibition or restriction under United Nations resolutions or the trade or economic sanctions, laws or regulations of the European Union, United Kingdom, Hong Kong or United States of America. 7.4 If applicable, the Client may terminate this Agreement immediately in writing to AES if the AES Site is unavailable or inaccessible to all Readers for either (a) more than 3 consecutive days; or (b) more than 5 days in a 30 day period, as a result of the fault or failure of AES. On such termination AES shall provide the Client with a pro rata refund of any Fee paid in advance that relates to the unexpired period of the Agreement. 7.5 AES acknowledges that the Client does not wish to lose the benefit of this Agreement by virtue of non-material misuse by a Reader of the Content. Notwithstanding clause 7.2(a) and subject to clause 7.6, in the event that AES reasonably believes that the Client is in breach of the terms of this Agreement (including any breach by a Reader of the Copyright Policy) (a “Breach”) then AES agrees, subject to clause 7.6, that it shall not exercise any of its rights under this Agreement, until it has followed the following process:
7.6 AES shall not be obliged to follow the process in clause 7.5 if:
7.7 Within thirty (30) days of the termination or expiry of this Agreement the Client shall delete or destroy, in accordance with the directions of AES, all materials relating to the Content in the Client’s possession or control, whether held electronically or otherwise. 7.8 Any termination of this Agreement is without prejudice to any other rights or remedies a party may be entitled to under this Agreement or at law and shall not affect any accrued rights or liabilities of either party. Termination of this Agreement shall not relieve the Client of its obligation to pay AES any outstanding Fee. 7.9 In any circumstances where AES is entitled to issue a notification of breach for the purposes of clause 7.2(a) or terminate this Agreement, including in respect of any breach of clause 6.1 or failure to observe the agreed Licensed Reader levels, it may elect by written notice to suspend its provision of the Content or any rights that it has granted in the Agreement to the Client. The suspension shall not affect Client’s payment obligations. Any suspension shall continue until AES is satisfied that the breach is remedied or until AES elects to exercise its right to terminate the Agreement. 8. Force Majeure Neither party shall be liable for any failure to perform its obligations under this Agreement if such performance is hindered or prevented by any matter beyond the reasonable control of the party whose performance is hindered or prevented (including without limitation by reason of any failure, interruption, or degradation of any third party telecommunications network or system or hardware or the Internet or any part of it or of a Third Party Channel) (a “Force Majeure Event”). If a Force Majeure Event continues for more than one month then either party may immediately terminate this Agreement on written notice to the other (provided that the Force Majeure Event is still continuing on the date of that notice). 9. General 9.1 No provision of this Agreement may be amended, modified, discharged or terminated other than by the express written agreement of the parties. 9.2 No failure or delay by either party to exercise any right or remedy under this Agreement or by law will constitute a waiver of that or any other right or remedy. Nor will it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will preclude or restrict the further exercise of that or any other right or remedy. 9.3 This Agreement may be signed in counterparts and all signed copies of this Agreement shall be deemed to be originals of this Agreement. Copies signed by counterparts and sent by email (attaching a scanned copy of the signed hard copy) shall be deemed to be original copies. 9.4 Any notice, consent or other communication required under this Agreement shall be made in writing and will be delivered by hand, recorded delivery or courier to the other party and will be deemed to have been received, if delivered by hand, at the time and date of delivery; and if sent by recorded delivery or courier, upon the date of receipt (as evidenced by signature). Any such communication made by AES shall be sent to the address of the Client shown on the Term Sheet. Any such communication made by the Client shall be sent to American Energy Society, ATTN: Eric Vettel, 654 Gilman Street, Palo Alto, CA 94301. 9.5 This Agreement constitutes the whole agreement between the parties and supersedes all previous agreements relating to its subject matter. Each party acknowledges that, in entering into this Agreement, it has not relied on, and will have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement. Nothing in this clause will limit or exclude any liability for fraud. 9.6 If a provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed not to form part of this Agreement, and the validity and enforceability of the other terms of this Agreement will not be affected. If a provision of this Agreement (or part of any provision) is found to be illegal, invalid or unenforceable, the provision will apply with the minimum modification necessary to make it legal, valid and enforceable. 9.7 This Agreement may not be assigned, licensed, sub-licensed or otherwise transferred without the prior written consent of AES. 9.8 Anyone who is not a direct party to this Agreement will not have any rights to enforce its terms. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement are not subject to the consent of any other person. 9.9 Client acknowledges that if it does not execute and return this Agreement to AES (whether electronically or otherwise) no less than 10 working days prior to the Service Start Date, this may cause delay in the commencement of elements of the services to be provided by AES under this Agreement. 10. Disputes and Governing Law 10.1 Each party agrees to respond promptly to any issues referred to it by the other party relating to this Agreement and shall seek to resolve any disputes arising through its Relationship Manager as quickly and effectively as possible. 10.2 Subject to clause 10.1, if the parties cannot satisfactorily resolve any dispute within 14 days of referral to the Relationship Managers then that dispute shall be escalated to a director (or equivalent) of both parties. If the parties cannot satisfactorily resolve any dispute within 14 days of referral to a director (or equivalent) then either party may seek its legal remedies as provided in clause 10.4. 10.3 Nothing in clause 7.6 or this clause 10 shall restrict either party from seeking immediate legal or equitable relief for any infringement of its intellectual property rights. 10.4 All contractual and non-contractual claims arising from or in connection with this Agreement shall be governed by and construed in accordance with the laws of the United States and the parties submit to the exclusive jurisdiction of the US courts, provided that for the exclusive benefit of AES, AES retains the right to bring proceedings against the Client in the applicable courts of the Client’s place of business. 11. Third Party Channels (if applicable) 11.1 AES shall make the Content available to any Third Party Channel referred to in the Term Sheet and shall authorize the Third Party to make the Content available to the Client via the Third Party Channel, subject to the Client having a valid and subsisting Third Party Channel Agreement. 11.2 The terms of this Agreement shall not be affected in any way by the terms of the Third Party Channel Agreement or the performance of that Third Party Channel Agreement by the applicable Third Party. AES shall have no responsibility or liability to the Client in relation to that. 11.3 The Client agrees that it is solely responsible for the payment of any fees due to a Third Party for use of a Third Party Channel. 11.4 The Client may at any time request that Readers be granted access to Content through another authorized Third Party Channel provided that such change does not exceed the number of Readers permitted in the Term Sheet. Upon receipt of such notice, AES shall facilitate such access through the Third Party Channel as soon as reasonably practicable and shall provide the Client with an amendment for approval, reflecting the change. 11.5 If AES ceases to permanently provide Content to a Third Party Channel for any reason, then AES shall notify the Client and permit the Client to: (a) exercise its right to transfer Readers as set out in clause 11.4; or (b) if the Client is unable to exercise that right within 30 days of AES notifying the Client, terminate this Agreement on written notice to AES, such notice to take effect on the date that the Client is no longer able to access Content through the applicable Third Party Channel. AES shall provide the Client with a pro rata refund of any Fees paid in advance that relate to the unexpired period of this Agreement. This clause 11.5 sets out the Client’s sole and exclusive remedies for AES ceasing to provide Content through a specific Third Party Channel. 11.6 Upon request by AES, the Client shall authorize a Third Party Channel (and hereby provides its consent to the Third Party Channel) to provide the following information to AES in relation to an existing Third Party Channel Agreement: (a) the number of Client users with access to Content through the Third Party Channel; (b) notification in the event that the Third Party Channel Agreement is terminated; (c) usage details of Content (including number of page/article hits and number of Readers but not relating to specific articles accessed by an individual Reader) through the Third Party Channel; (d) any references such as bill group and account numbers to facilitate access to Content via the Third Party Channels; and (e) any other information reasonably requested by AES to facilitate its provision of the Content to the Client via the Third Party Channel. 11.7 The Client shall immediately notify AES if any of its Third Party Channel Agreements terminate. 12. Application of These Terms 12.1 This version of the Terms and Conditions applies to Term Sheets executed by the AES and Client at any time from 15 November 2021 until this version of the Terms and Conditions is superseded by a new version. 12.2 AES may at any time and at its sole discretion change, update or amend these Terms and Conditions for future Term Sheets by posting a new version of the Terms and Conditions on this webpage: https://www.energysociety.org/terms-and-conditions.html 12.3 Any change under clause 12.2 will not affect any Term Sheets that have already been executed by AES and Client. This version of the Terms will continue to be made available by request. |
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