Syndicated Research Agreement

This Syndicated Research Agreement (“Agreement”) is made between Sleeping Giant Labs, a wholly owned subsidiary of Sleeping Giant Solutions, LLC, a Colorado limited liability company (“SG”) and the party identified below as the Client. 

On this day, the client mentioned above is interested in placing orders with SG to obtain access to one or more market research or business intelligence reports provided by SG (each, a “Report”).  This Agreement sets forth the terms and conditions under which SG is willing to accept orders for Reports from Client (each order accepted by SG, an “Order”) and grant Client certain access  to those Reports.  This Agreement will govern all access to and use by Client of any Report purchased and all data, information, and other content (“Content”) included in the reports. 

This Agreement consists of the terms on this page, the attached terms and conditions, and the terms of each order or invoice referenced in the terms and conditions.  Unless a Report is subject to a separate written agreement between the parties, this Agreement will exclusively govern Client’s access to and use of all Reports provided to Client by or on behalf of SG.  This Agreement is the complete and exclusive understanding and agreement between the parties regarding the subject matter covered by this Agreement, and supersedes any oral or written proposal, agreement, or other communication between the parties regarding Client’s access to and use of any Reports.  The provisions of the attached terms and conditions will control with respect to the rights and obligations of the parties under this Agreement in the event of a conflict between those terms and conditions and any order, invoice, or other document referenced in this Agreement.  The preprinted terms of a purchase order or any other terms and conditions will not apply to or modify this Agreement.  This Agreement may be changed or modified only by a writing signed by both parties.  All waivers under this Agreement must be in writing.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  The parties acknowledge and agree that English (as the meaning of the words and phrases thereof are commonly interpreted in the United States) shall be the language used in all written communications between the parties pursuant to this Agreement, including all notices.  To the extent any written document, including this Agreement, is required to be translated into any other language, Client shall pay all the costs of such translation.  To the extent any ambiguity or inconsistency exists between an English version of any written document and a version in any other language, including this Agreement or any notice under this Agreement, the English version of such document shall prevail.  This Agreement may be executed in one or more counterparts, duplicate originals, or facsimile versions, each of which will be deemed an original, but all of which together will constitute one and the same instrument. 

The parties have read and agree to be bound by the terms of this Agreement, including the terms and conditions contained on the following pages hereof, as of the date the report is purchased. By purchasing this report, the individual and company making the purchase are bound by these terms and conditions that follow this paragraph. 

Terms and Conditions

1. Ordering and Access to Reports.  Client may place orders for access to Reports with SG by this website, telephone, email, or in written form.  Upon acceptance of any Order, SG will provide Client with the applicable level of access to the Report requested in the Order and issue an invoice to Client referencing the Order for the amounts payable by Client under that Order (an “Invoice”).  The level of access Client receives to each Report will be as set forth on the Invoice applicable to that Report.  Client may not access or utilize any Reports, or any Content included in any Report, except as expressly permitted in this Section 1.  All rights in or to any Reports, or any Content, not expressly stated in this Section 1 are reserved by SG. 
   1. Enterprise Access.  If specified on this website, by an Invoice or other document issued by SG pursuant to an Order specifies that Client has purchased “Enterprise” access to a Report, then during the term of this Agreement, and conditioned on compliance by Client with the terms of this Agreement, SG will provide Client with the limited, personal, non-transferable, sub-licensable, and non-exclusive right to provide access to the Report to all current employees of Client, up to 10 employees unless otherwise stated in writing.  All access to the Report (and any Content) will be solely for Client’s own internal business purposes in accordance with the terms and conditions of this Agreement.  Client will have no right to modify the Report but may make excerpts of each Report and may make copies of each Report or any such excerpts, provided that all such excerpts and copies are used solely in accordance with the terms and conditions of this Agreement.  Client’s subsidiaries and affiliates may not have access to the Reports without entering into a separate agreement or order with SG. 
2. Restrictions on Access to Reports.  Client will not, and will not allow any third party to: (1) modify, translate, reproduce, publicly display, or create derivative or collective works comprising any Reports or Content in any form or format, except for the copies and excerpts expressly permitted by Section 1; (2) combine or merge any Report or Content with any other data, information, or content not provided by SG, provided that excerpts of Reports may be displayed with other data, information, or content of Client for Client’s own internal business purposes; (3) reverse engineer or otherwise attempt to derive the method of operation of the systems, algorithms, methodologies, software, and other technology used by SG to generate any Report or Content, or the structure, organization, selection, coordination or arrangement underlying any Report or Content (collectively, the “SG Technology”); (4) publish, transmit, distribute, disclose, sublicense, rent, lease, loan or otherwise provide any Report or Content to any third party; (5) alter, obscure or remove any copyright, trademark, or other notice provided on or in connection with any Report; or (6) otherwise use or access the Deliverables except as explicitly permitted by this Agreement.  If Client would like to publish, cite to, or distribute any Report or Content, Client must contact SG and obtain express permission for such action from SG. 
3. Services.  As may be set forth in any Order under this Agreement, or upon written request by Client and agreement by SG, SG will provide Client with additional advisory, support, consulting, or other professional services or service packages relating to any Report or Content.  All such additional services will be charged to (and payable by) Client at the applicable fees or rates set forth in the Order applicable to those services (or the other agreement by SG to perform those services).  If not set forth in the applicable Order, or otherwise in the agreement to perform those services, all such services will be performed at SG’s then-current rates for such services. 
4. Confidentiality.  All Reports and Content, all SG Technology, and any information disclosed or made available by SG under this Agreement that relates to SG or to the preparation, provision or receipt of any Reports or Content, are and will remain the “Confidential Information” of SG.  Client will not use or disclose any Confidential Information for any purpose not expressly permitted by this Agreement.  Client will protect the Confidential Information from unauthorized use, access or disclosure in the same manner as Client protects its own most confidential or proprietary information but with no less than reasonable care.  Client will ensure that all individuals receiving any Confidential Information are under a duty of confidentiality no less restrictive than Client’s obligations under this Agreement.  As a limited exception to the foregoing, Client’s obligations with respect to any Confidential Information will terminate if such Confidential Information is, or through no fault of Client becomes, generally available and known to the public.  In addition, Client may disclose Confidential Information as strictly required by law or by the order of a court of similar judicial or administrative body having jurisdiction over Client, provided that Client notifies SG in advance of such required disclosure and cooperates with SG in contesting or limiting the scope of such required disclosure. 
5. Ownership.  SG retains all right, title and interest, including, without limitation, all IPR (as defined below), in and to all Reports, Content and SG Technology, and any additions, improvements, updates or modifications thereto.  Client acknowledges that Client is not receiving any ownership interest in or to any of the foregoing.  The SG name, logo, and the product and service names associated with the Reports or Content are trademarks of SG or third parties, and no right or license is granted to Client to use them separate from Client’s right to access the Reports.  For purposes of this Agreement, “IPR” means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting Content, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in data and databases, and contract rights. 
6. Fees and Payment.  All fees are as set forth on this page and/or each Invoice and are due and payable by Client upon receiving the Report(s) and/or Invoice.  SG will have no obligation to provide any further Reports or perform any further Services if Client has failed to pay any fees stated in any Invoice under this Agreement when due.  Any Fees (invoiced or otherwise) that are not paid as of the due date will accrue interest at 1.5% per month (or the highest amount allowed by law) until paid.  All fees are non-refundable once paid to SG.  All fees are exclusive of any taxes, which will be paid by Client. 
7. Term and Termination.  This Agreement will begin on the Effective Date and will continue for an initial period of 24 months from the Effective Date.  Unless earlier terminated as set forth in this Section 7, this Agreement will continue to renew for successive additional 12 month periods unless either party provides the other party with written notice of its intent not to renew this Agreement at least 60 days prior to the end of the then-current period.  Client may terminate this Agreement at any time by providing notice of termination to SG and permanently deleting or destroying all Reports, Content or other Confidential Information in Client’s possession or control, including all copies thereof.  SG may terminate this Agreement upon notice to Client if Client breaches this Agreement and fails to cure such breach within 30 days of first becoming aware of such breach.  Client will promptly notify SG of any actual, potential, or suspected breach of this Agreement.  Upon termination: (1) all rights granted to Client under this Agreement will immediately cease; and (2) Client will end all access to and utilization of, and immediately and permanently delete or destroy, all Reports, Content or other Confidential Information in Client’s possession or control, including all copies thereof.  The following Sections will survive termination of this Agreement for any reason: 4, 5, 9, 10, 11, 12, 13, 14, and 15. 
8. Limited Warranty.  SG will use commercially reasonable efforts to deliver each Report and perform any services relating to any Report or Content as agreed to by SG under this Agreement.  As Client’s sole remedy, and SG’s sole obligation, for any failure by SG to comply with the foregoing sentence, SG will, as applicable, provide a new copy of any Report or re-perform any services affected by such failure. 
9. Disclaimer.  SG PROVIDES ALL REPORTS (AND CONTENT) SOLELY FOR INFORMATIONAL PURPOSES AND DOES NOT WARRANT THAT THE REPORTS WILL BE ERROR-FREE OR WILL MEET ANY OF REQUIREMENTS OF CLIENT.  all Reports and Content are PROVIDED ON AN “AS IS” BASIS AND CLIENT’S USE OF any Reports and Content IS AT CLIENT’S OWN RISK.  SG DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS or covenants relating to this agreement, or to the Reports or Content provided under this Agreement, whether EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, title, or non-infringement.  SG does not GUARANTEE THE ADEQUACY, ACCURACY, TIMELINESS OR COMPLETENESS OF any Reports or Content.  SG WILL NOT BE SUBJECT TO ANY DAMAGES OR LIABILITY FOR ANY ERRORS, OMISSIONS, INTERRUPTIONS, OR DELAYS IN any Reports or Content. 
10. Limitation of Liability.  IN NO EVENT WILL SG BE LIABLE UNDER THIS AGREEMENT OR IN CONNECTION WITH ANY REPORT OR CONTENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF SG has BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, without limitation, LOSS OF PROFIT, revenue, time opportunity, OR GOODWILL.  THE MAXIMUM CUMULATIVE LIABILITY OF SG IN CONNECTION WITH this agreement or any Report or Content will not EXCEED THE FEES actually PAID BY CLIENT TO SG FOR THE Report to which such liability relates IN THE 3 MONTH period PROCEEDING THE DATE SUCH LIABILITY IS ALLEGED TO HAVE ARISEN.  CLIENT MAY NOT BRING ANY ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO this Agreement or any Report or CONTENT MORE THAN 1 YEAR AFTER SUCH ACTION HAS ACCRUED. 
11. Certain Liabilities.  Client will defend, indemnify, and hold harmless SG, its affiliates, subsidiaries and licensors, and each of their respective officers, directors, shareholders, employees, subcontractors, agents, representatives and affiliates, from and against any loss, liability, cost, judgment, award, settlement, tax, penalty, action, damage, charge, expense or fee (including attorneys' fees and costs of collection) of any nature, and any claims, allegations or suits therefore, arising out of or relating to the access to or utilization of any Reports or Content under this Agreement, except to the extent proximately caused by a breach by SG of its obligations under this Agreement (each, a “Claim”).  SG will provide Client with written notice of any Claim.  Client has the right to participate in the defense of any Claim at its own expense. 
12. Disputes.  Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement or any Report or Content, including the formation, validity, binding effect, interpretation, performance, breach, or termination, of this Agreement and the arbitrability of the issues submitted to arbitration under this Agreement and all non-contractual claims relating to this Agreement or any Report or Content (each, a “Dispute”), in accordance with the procedures set forth in this Section 12.  If any Dispute cannot be resolved through negotiations between the parties within 5 days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration of the International Chamber of Commerce (“ICC”) then in effect (the “Rules”).  Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules.  The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties.  If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules.  The arbitration will be conducted in the English language at a site specified by SG, in its sole discretion, in Boulder, Colorado U.S.A.  The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator.  The award of the arbitrator will require payment of the reasonable costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party.  Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof.  Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement. 
13. Injunctive Relief.  Notwithstanding Section 12, either party may commence a civil action to compel arbitration under this Agreement and/or to temporarily or preliminarily enjoin actual or threatened breaches of this Agreement pending arbitration.  Any such action or any other dispute not covered by Section 12, will be brought by the parties exclusively in a state court in Boulder, Colorado (USA) or a federal court in Denver, Colorado (USA) .  Each party hereby irrevocably submits to the personal jurisdiction of such courts.  Client agrees that any unauthorized copying, publication, distribution, modification or other utilization of or access to any Report or Content will cause SG irreparable injury that cannot be adequately compensated for by means of monetary damages.  Client therefore agrees that any breach of this Agreement by Client may be enforced by SG by means of equitable relief (including, without limitation, injunction), without SG being required to post a bond or make a showing of irreparable harm, in addition to any other rights and remedies that may be available to SG under applicable law. 
14. Audit.  Client will maintain the most recent 18 months of records with respect to Client’s access to and utilization of all Reports and Content by Client.  During the term of this Agreement and for a 3 year period thereafter, SG will have the right to audit and review relevant portions of those records and the manner of access to and utilization of any Reports or Content by Client, in each case to confirm that the restrictions in this Agreement have been observed.  The costs of any such audit will be borne by SG unless such audit reveals any breach of this Agreement by Client, in which case Client will reimburse SG for its costs and expenses in conducting such audit.

Additional Terms.  Sleeping Giant Labs, a wholly owned subsidiary of Sleeping Giant Solutions, LLC, a Colorado limited liability company, has offices at 304 Whitetail Cir, Lafayette, Colorado 80026 .  Except for the Rules referenced in Section 12, this Agreement will be governed exclusively by the laws of the State of Colorado, USA, excluding its conflict of laws principles.  The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.  Any notice under this Agreement must be delivered in writing by courier, electronic facsimile (with receipt of confirmation), or certified or registered mail (postage prepaid and return receipt requested) at the address for each party set forth above.  Notices will be effective upon receipt (or confirmation of receipt) or 3 business days after being deposited in the mail, whichever occurs sooner.  Upon request by SG, an officer or director of Client will certify in writing to Client’s compliance with any of the terms of this Agreement.  SG will be excused from performance under this Agreement to the extent SG’s performance is prevented, in whole or in part, by delays caused by Client or by events beyond SG’s reasonable control.  Except as expressly set forth herein, there are no third party beneficiaries to this Agreement.  Client may not assign or transfer this Agreement or any of Client’s rights or obligations under this Agreement to any third party (by operation of law or otherwise) without SG’s prior written consent.  Any assignment or transfer in violation of the foregoing will be void.  SG may assign or transfer this Agreement for any reason.  This Agreement will be binding upon the permitted successors and assigns of each party.  If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.  The parties will replace any such invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.  The relationship between the parties is that of independent contractors and no agency, partnership, franchise, joint venture or employment relationship is intended or created by this Agreement.  SG may provide the Services through its own employees or through contractors, as determined solely by SG in its reasonable discretion.  Neither party will make any warranties or representations on behalf of, or otherwise bind, the other party.