(Revised May 18, 2020)
- Order.By signing, or affixing in writing or electronically initials on the Prospector Statement of Work (the “SOW), or assenting to the SOW via other verifiable electronic means, the client identified in the SOW(“Client” or “you”) agrees to be bound by the terms of the SOW and these Prospector Service Terms, as may be amended by UL from time to time (“Service Terms,” together, with a SOW r, the “Agreement”) between the UL Contracting Entity listed on the SOW (“UL”) and you. Any amendment to the Service Terms will apply prospectively from the date the amendment(s) are provided to you. You agree that the Service Terms shall apply to all subsequent orders, modifications, renewals, and/or replacement orders relating to a SOW unless otherwise agreed in writing by you and UL.
(a) Descriptions.Subject to the terms and conditions of this Agreement, UL agrees to perform and provide to Client as applicable a non-exclusive, non-transferable license to and Client agrees to accept from UL, one or more of the following services (the “Services”) as detailed in the SOW
- (i) The publication of Client’s product information, including documents or abstracts thereof and links to Client-maintained websites (collectively, “Information”) on the https://www.ulprospector.com/en/na or https://iq.ulprospector.com/info/website (as applicable, the “Site”) for Site users (“Users”);
- (ii) the placement of digital media on the Site and/or in other communication venues made available to Users (“Additional Venues”);
- (iii) through UL-designated methods the provision of User activity information (“Activity Reporting”) recording User access of Client information hosted on the Site (“Client Information”) and User requests for Client samples and sales and technical information captured on the Site,
- (iv) the access to software and tools that assist Client in the use of Services offered in clauses (i) – (iii) above;
- (v) the provision of document processing, indexing and other maintenance Services associated with enabling the Services offered in clauses (i) – (iv) above; and
- (vi) the provision of SAAS tools related to data processing, document creation, and web-based document search and retrieval.
(b) Delivery and Performance.Client shall deliver Client Information to UL in such file formats and on such media as reasonably required by UL.
(c) Linked Websites. Where available UL shall provide hyper-links to Client’s Information that is available on-line on or through websites or systems specified by Client. Client shall ensure that each such website and system functions in accordance with customary industry standards and that Client’s Information on such websites or systems conforms to the information content standards set forth in this Agreement and is kept up-to-date.
(d)Lead Generation and ActivityReporting. When included in an SOW , UL shall make Activity Reporting available to Client through UL specified processes as may be updated from time to time. Activity Reporting Fees are related to the number of Sales Opportunities provided by UL to the Client each 12-month period . A Sales Opportunity shall mean a User activity record (excluding activity records from other Client companies, distributors, consultants, and educational institutions) created by a User accessing Client Information on the Site in a calendar day (a “Day”). Multiple activity records by the same User during a Day are counted as one Sales Opportunity.
- License and Provision of Client Information. In consideration of UL’s performance of the obligations of this Agreement and solely in connection with UL’s performance of this Agreement, Client grants to UL a limited, non-exclusive, revocable worldwide license, for the term of this Agreement and with respect to the operation of the Site and the computer hardware and software used to maintain, backup and mirror the Site, to: (a) copy, use, store, publicly display, publicly transmit Client Information; (b) incorporate hypertext reference links to, and framed pages from, Client Information provided such links shall be subject to UL’s prior written approval which shall not be unreasonably withheld; and (c) display Client trade names, trademarks, service marks, trade dress and images within the Site in connection with providing on-line access to Client Information in accordance with the terms of this Agreement.
- Proprietary Rights.Client shall retain all right, title and interest (including copyright and other proprietary or intellectual property rights) in Client’s Information, including without limitation Client’s trade names, trademarks, service marks, trade dress and images therein. UL shall retain all right, title and interest (including copyright and other proprietary or intellectual property rights) in UL’s information, including without limitation UL’s trade names, trademarks, service marks, trade dress and images therein. Client acknowledges that the Site, including, without limitation, all trade names, trademarks, service marks, content, text, images, software, media and other materials therein, is a work or collective work proprietary to or licensed by UL or its Affiliates and protected under copyright, trademark and other intellectual property laws. Client acknowledges that UL possesses and exclusively owns compilation copyrights in the information and data maintained on its website(s).“Affiliate” means an entity that, directly or indirectly, controls, is controlled by, or is under common control with, another entity where “control” means the power to direct or cause the direction of an entity’s affairs, whether by means of holding shares, possessing voting power, exercising contractual powers or otherwise (and “controls” and “controlled” will be construed accordingly).
- Availability of Services.Subject to the terms and conditions of this Agreement, UL shall use commercially reasonable efforts to provide the Services twenty-four (24) hours a day, seven (7) days a week during the License Term. Notwithstanding the foregoing, Activity Reporting is available based on one of the standard intervals offered by UL. Client acknowledges that from time to time the Services may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which UL may undertake from time to time; or (iii) causes beyond the control of UL. Any such Service disruptions shall not be a breach of UL’s performance obligations under this Agreement provided UL engages in commercially reasonable efforts to remedy such disruptions.
- Information Content Standards.Client agrees to comply with UL’s reasonable legal, decency and preventability standards relating to Client Information, which may be amended or changed from time to time in UL’s reasonable discretion upon notice to Client. UL reserves the right to refuse to perform the Services with respect to any of Client Information that does not conform to such standards or otherwise fails to comply with the requirements of this Agreement.
- Fees, Taxes and Payment.Client shall pay UL when due the fees described on the SOW (“Fees”). Once the account is activated, all Fees and charges for the License Term are non-refundable and noncancelable. The Fees may be changed by UL effective upon each renewal of a License Term, provided UL notifies Client in writing of such change sixty (60) days or more in advance of the renewal date. Client agrees that any Fees that remain unpaid beyond thirty (30) days after the applicable payment due date shall accrue interest at one and one half percent (1.5%) per month and Client shall thereafter pay all such interest in addition to any Fees due. Client also shall pay any sales and/or use taxes applicable to the Services.
- Privacy and Disclosure.
(a) Client Restricted Information. Client acknowledges and understands that employees from chemical-related companies and organizations world-wide, including both raw material and formulated product manufacturers, are eligible to join the Site as Users and access Client Information. Client further acknowledges that it may wish to restrict access to portions of its Client Information to specified Users or groups of Users. In such cases, UL shall implement commercially reasonable measures, including through the use of password authorization, to so restrict access. Client acknowledges and agrees that UL shall not be responsible or liable for any unauthorized User access to Client Information resulting from the misuse of User names or passwords, the misrepresentation by Users of their identities or affiliations, or any other failure to restrict User access to Client Information, provided UL acts promptly and reasonably to limit such unauthorized access upon notice from Client.
(b) Usage Data. UL shall have the right to announce, promote, and publish aggregated information regarding the use of the Site, such as general information pertaining to the number of Users, the number of Users accessing Client Information and that Client subscribes to the Services.
- Warranties and Disclaimer.
(a) Client Warranty.Client warrants to UL that: (i) Client Information shall conform substantially to the description and specifications set forth on the SOW ; (ii) Client Information does not and shall not contain or be alleged to contain any content, work, name, mark, designation, materials or link (a) that actually or potentially violates any applicable law or regulation or infringes any proprietary, intellectual property, contract or tort right of any person, or (b) that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; and (iii) Client has the right to grant UL the license to Client Information provided herein and authorize the worldwide copying, display and transmission of its Information, subject to the terms of this Agreement.
THE SERVICES ARE PROVIDED “AS IS” AND UL DOES NOT REPRESENT OR WARRANT THAT DEFECTS WILL BE CORRECTED. UL DOES NOT WARRANT THAT THE SERVICES, OR FUNCTIONS CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES UL MAKE ANY WARRANTY AS TO THE PERFORMANCE OR ANY RESULTS THAT MAY BE OBTAINED BY USE OF ITS SERVICES. UL MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, COMPLETENESS, CORRECTNESS, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE OF THE SITE CONTENT,THE PRODUCTS LISTED OR ANY USER POSTINGS.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, UL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS OR OTHER HARMFUL COMPONENTS, AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN CERTAIN STATES, THE LAW MAY NOT PERMIT THE DISCLAIMER OF WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
- Limitation of Liability.Client agrees to review its Information on the Site immediately after publication and to promptly notify UL in writing of any errors therein. UL shall use commercially reasonable efforts to promptly correct any such error or omission. If an error or omission occurs, or UL otherwise fails to perform its obligations under this Agreement, the sole liability of UL to Client is limited to a refund of the applicable Fee (or portion thereof related to the error, omission or other performance failure) specified on the SOW, unless such error, omission or performance failure is due to the willful acts or gross negligence of UL. IN NO EVENT SHALL UL BE LIABLE TO CLIENT OR ANY OTHER PERSON OR ENTITY CLAIMING THROUGH CLIENT FOR ANY DIRECT OR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE AND EVEN IF UL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL UL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER, EVEN IF UL HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR PERFORMANCE OF THE INFORMATION, SERVICES, PRODUCTS, AND MATERIALS AVAILABLE FROM THE SITE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- Indemnification.Client agrees to indemnify, hold harmless and defend UL, its Affiliates and their directors, officers, employees and agents from and against any third party action, claim, demand, dispute, or liability, including reasonable attorney’s fees and costs, arising from or alleged to arise from Client’s breach of this Agreement or any representation or warranty of Client being untrue, or from Client r’s negligent or intentional acts or omissions. Client agrees that UL shall have the right to participate and control the defense of any such claim through counsel of its own choosing.
- Term and Termination. The License Term and any renewal thereof of any SOW shall be as specified in such SOW. UL may immediately terminate this Agreement or any SOW and all of your rights hereunder for any violation or breach of the terms and conditions set forth herein.
- General. (a) Use of Contractors. Client acknowledges and agrees that UL utilizes the services of independent contractors in connection with the operation of the Site. UL may subcontract Services to any Affiliate or other third parties subject to UL requirements. UL will provide as a term of any such subcontract that the subcontractor will meet our current qualification requirements, including complying with our confidentiality requirements. UL will be responsible for any breach of this Agreement by its subcontractors.
(b) Substitute/Successor Websites. Client agrees that UL may establish and substitute other websites for the Site, provided such substitute websites are in substance and function similar to the Site. In the event UL makes such a substitution, all references in this Agreement to ULProspector.com or the Site shall be deemed to refer to the substitute website and related services.
(c) Assignment.This Agreement may not be assigned or transferred by either party (by operation of law or otherwise) without the prior written consent of the other party; provided, however, that either party may, without the prior consent of the other, assign all of its rights under this Agreement to (i) an Affiliate, (ii) a purchaser of all or substantially all of its stock or assets, or (iii) a third party participating in a merger or other corporate reorganization in which the assigning party is a constituent corporation. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
(d) Notices. All notices shall be in writing and shall be deemed to be delivered when received by certified mail, postage prepaid, return receipt requested, or when sent by facsimile or e-mail confirmed by call back or email response. All notices shall be directed to the parties at the respective addresses given on the SOW or to such other address as either party may designate by notice to the other party.
(e)Law.In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof, the parties shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and attempt to reach solution satisfactory to both parties. If they do not reach such solution within a period of 60 days, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally settled by arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules, provided, however, that any such arbitration shall be held in Chicago, Illinois, the arbitrator shall apply Illinois law and conducted in English..
(f) Entire Agreement, Waivers.This Agreement constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, whether oral or written. No waiver or discharge hereof shall be valid unless in writing and signed by both parties.