This Master Subscription Agreement (the “MSA”) and any Order Form (each an “Order”) referencing this MSA (collectively, the “Agreement”), constitute an agreement between Digimarc Corporation (“Digimarc”) and the other party or parties to that Order (“Customer”).
This MSA is effective on the date the parties first enter an Order referencing this MSA (the “Effective Date”). Customer’s entry of an Order referencing this MSA constitutes Customer’s acceptance of this MSA. This MSA governs Customer’s receipt and use of the Digimarc Illuminate Platform, Digimarc Products, Licensed Software, and Professional Services, as agreed between Digimarc and Customer in one or more Orders.
Digimarc may update this MSA from time to time without notice to Customer. Customer’s continued receipt or use of the Digimarc Illuminate Platform, Digimarc Products, Licensed Software, or Professional Services constitutes Customer’s acceptance of updates to this MSA.
This MSA was last updated on October 07, 2024.
1. Definitions
1.1. “Active Digital Twin” means a Digital Twin associated with an active Digimarc Product subscription.
1.2. “Affiliate” means an entity in which a party owns or controls, directly or indirectly, an equitable interest representing the right to elect the majority of the directors or persons performing similar functions or, if the law of the applicable jurisdiction does not permit a majority interest, then the maximum allowable under applicable law. An entity is only an Affiliate during the period that it meets this definition.
1.3. “Covered Product” means a Customer Product or a Customer Client Product, as context dictates.
1.4. “Customer Application” means a Customer product or service that interacts with the Digimarc Illuminate Platform or incorporates the Licensed Software.
1.5. “Customer Client” means a third party identified in an Order for whose benefit Customer exercises the rights granted under this MSA and an Order.
1.6. “Customer Client Application” means a Customer Client product or service that interacts with the Digimarc Illuminate Platform.
1.7. “Customer Client Product” means a physical or digital Customer Client product bearing a Data Carrier.
1.8. “Customer Data” means data provided by Customer or collected by Digimarc from Customer, Customer Clients, or End Users in connection with Customer’s, Customer Clients’, and End Users’ use of the Digimarc Illuminate Platform, Digimarc Products, or Licensed Software.
1.9. “Customer Product” means a physical or digital Customer product bearing a Data Carrier.
1.10. “Customer Materials” means materials provided by Customer to Digimarc for Digimarc’s use to provide the Professional Services or otherwise perform its obligations under this MSA or an Order.
1.11. “Data Carrier” means a data carrier such as a Digimarc Watermark, 1D barcode, 2D barcode, NFC tag, RFID tag, or Bluetooth tag.
1.12. “Data Protection Laws” means all laws and regulations governing the processing of personal data under this Agreement.
1.13. “Deliverable” means a deliverable created by Digimarc through its performance of Professional Services.
1.14. “Digimarc Illuminate Platform” means the Digimarc® Illuminate™ platform, a Digimarc Platform-as-a-Service product for creating and managing Digital Twins, Digital Identities, and Digital Data Carriers, and enabling Software-as-a-Service products utilizing those Digital Twins, Digital Identities, and Digital Data Carriers.
1.15. “Digimarc Product” (formerly Digimarc Product Service) means the set of Digimarc Illuminate Platform Software-as-a-Service capabilities enabling a specific use case, as further described in the Digimarc Product Descriptions and an Order.
1.16. “Digimarc Product Descriptions” means the descriptions of Digimarc Products at https://www.digimarc.com/legal/products, as updated by Digimarc from time to time.
1.17. “Digimarc Watermark” means a Digimarc data carrier containing a supported Digital Identity.
1.18. “Digital Design” means digital imagery intended for use to create a Covered Product.
1.19. “Digital Design Enhancement” means use of the Digimarc Illuminate Platform or Licensed Software to create an Enhanced Digital Design.
1.20. “Digital Identity” means a unique identifier for a Covered Product.
1.21. “Digital Twin” means the digital representation of a Covered Product on the Digimarc Illuminate Platform, including data captured about that Covered Product by the Digimarc Illuminate Platform.
1.22. “Digital Data Carrier” means a supported Data Carrier carrying a Digital Identity and linked to a Digital Twin.
1.23. “Digitized Item” means a Covered Product bearing a Digital Data Carrier, including a Covered Product created from or incorporating an Enhanced Digital Design.
1.24. “End User” means an end user of a Customer Application or Customer Client Application.
1.25. “Enhanced Digital Design” means a Digital Design enhanced with a Digital Data Carrier by Customer under an Order or by Digimarc on behalf of Customer under an Order.
1.26. “High-Risk Activities” means uses of the Digimarc Illuminate Platform, Digimarc Products, or Licensed Software that could lead to death, personal injury, or extensive catastrophic environmental damage, including the operation of nuclear facilities, air traffic control, and life support systems.
1.27. “Inactive Digital Twin” means a Digital Twin that is not associated with an active Digimarc Product subscription.
1.28. “Licensed Software” means the Digimarc software licensed to Customer under an Order or otherwise provided to Customer for use under an Order, and all new versions of that software that Digimarc provides Customer under that Order.
1.29. “Mobile Application” means a Customer Application for mobile consumer devices integrating the Licensed Software to enable reading of supported Digital Data Carriers by End Users.
1.30. “Professional Services” means professional services provided by Digimarc under an Order.
1.31. “Serialization” means an Enhanced Digital Design generation process whereby the Digital Identity represented by each Digital Data Carrier in a Digital Design changes from one instance of that Digital Design to the next.
1.32. “Service Level Agreement” means the service levels for the Digimarc Illuminate Platform and maintenance and support services for the Licensed Software at https://www.digimarc.com/legal/digimarc-sla, as updated by Digimarc from time to time.
1.33. “Services” means the Digimarc Illuminate Platform, Digimarc Products, and Professional Services.
1.34. “Third-Party Software” means third-party software incorporated in the Licensed Software, as identified in an Order or otherwise identified by Digimarc in writing. Third-Party Software is not Licensed Software.
2. Orders
2.1. Orders. Customer may order Digimarc Illuminate Platform access and usage rights, Digimarc Products, Licensed Software, and Professional Services from Digimarc, for Customer's own benefit or for the benefit of a Customer Client, using an Order. An Order is not effective until both parties have signed that Order. Digimarc will provide Customer the Digimarc Illuminate Platform access and usage rights, Digimarc Products, Licensed Software, and Professional Services stated in each Order in consideration of Customer’s payment of the fees stated in that Order. If Customer requests professional services without the parties entering an Order, Customer shall pay Digimarc for those professional services at Digimarc’s standard rates. All Digital Twins Customer creates under an Order are deemed Active Digital Twins unless, and to the extent that, Customer is authorized to create and has created Inactive Digital Twins under that Order.
2.2. Conflicts. In case of conflict between the terms of this MSA and the terms of an Order, the terms of that Order control.
2.3. Change Orders. Either party may propose modifications to an Order by submitting a change order request to the other party. If the modifications proposed by a party affect the amount due or the timing of performance under that Order, the parties may negotiate a mutually acceptable adjustment to the amounts due or time of performance, as applicable, under that Order. A change order is not effective until both parties have signed that change order.
3. License Grants
3.1. Licenses to Customer.
3.1.1. Platform License Grant. Digimarc hereby grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable (except as expressly stated in an Order) right to access and use the Digimarc Illuminate Platform, including by Customer Applications, Customer Client Applications, or application programming interfaces (APIs) if supplied by Digimarc at its discretion, including to use the Digimarc Products identified in an Order, for Customer's own benefit or for the benefit of a Customer Client, subject to the terms of that Order.
3.1.2. Software License Grant. Digimarc hereby grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable (except as expressly stated in an Order) license to use internally, reproduce, and distribute internally the Licensed Software, for Customer's own benefit or for the benefit of a Customer Client, subject to the terms of the applicable Order. Customer shall not provide any Customer Client any Licensed Software.
(a) Digital Design Enhancement. If an Order licenses Customer rights to use the Licensed Software to perform Digital Design Enhancement: (i) Customer may use that Licensed Software to create Enhanced Digital Designs; and (ii) Customer or Customer Client may manufacture, test, demonstrate (provided Customer retains custody), and distribute and sell Digitized Items. If that Order permits Serialization, each Digitized Item enhanced with a Digital Data Carrier must contain a Digital Identity that is distinct from all other Digital Identities contained in Digital Data Carrier enhanced in Digitized Items by Customer under that Order.
(b) Mobile Application Creation. If an Order licenses Customer rights to use the Licensed Software to create Mobile Applications for Digital Data Carrier reading, Customer may, for Customer's own benefit or for the benefit of a Customer Client, distribute those Mobile Applications to End Users, subject to the following: Customer shall require each End User of a Mobile Application to agree by legally enforceable means to contract terms as a condition of that End User’s use of that Mobile Application that: (i) notify that End User of the application metrics sent to Digimarc, as described below, and the Third-Party Software; (ii) are no less protective of the Licensed Software than this MSA and this Order; and (iii) do not make any covenants, representations, or warranties, or undertake any obligations, on behalf of Digimarc. All Mobile Applications must be configured to access the Digimarc Illuminate Platform when those Mobile Applications read Digital Data Carriers.
(c) Mobile Application Metrics. Digimarc is sent the following End User metrics during Mobile Application use: (a) a unique identifier of the device using that Mobile Application, (b) the IP address of the device using that Mobile Application, and (c) the other information described in Digimarc’s Privacy Policy, located at: https://digimarc.com/about/privacy-policy (the "Privacy Policy"). Digimarc will treat the information provided in accordance with its Privacy Policy. Digimarc may update the Privacy Policy from time to time.
(d) Enhanced Digital Design Quality Control. If an Order licenses Customer rights to use the Licensed Software for Enhanced Digital Design quality control, Customer may use that Licensed Software for Enhanced Digital Design quality control.
3.2. Licenses to Digimarc.
3.2.1. Customer Data License Grant. Customer hereby grants to Digimarc a worldwide, non-exclusive, non-transferable, non-sublicensable license to use internally, reproduce, and distribute internally the Customer Data, to provide the Services.
3.2.2. Customer Materials License Grant. Customer hereby grants to Digimarc a worldwide, non-exclusive, non-transferable, non-sublicensable license to use internally, reproduce, and distribute internally the Customer Materials, solely as necessary to provide the Professional Services.
4. Licensed Software
4.1. Delivery. Digimarc will provide Customer access to the Licensed Software licensed under each Order within ten business days after entry of that Order.
4.2. Maintenance. Digimarc will provide Customer new versions of the Licensed Software in accordance with the Service Level Agreement. New versions of the Licensed Software may keep prior versions of the Licensed Software current as to functionality; correct errors, install patches, fix bugs, or perform similar enhancements; and add new enhancements, features, or functionality.
5. Digimarc Products
5.1. Digimarc Obligations. Digimarc will provide Customer the Digimarc Illuminate Platform, Digimarc Products, and Licensed Software, as described in each Order in accordance with the Digimarc Product Descriptions and Service Level Agreement. Digimarc’s obligations under this section do not apply in the event of: (a) Customer’s use of the Digimarc Illuminate Platform, Digimarc Products, or Licensed Software other than in accordance with the Service Level Agreement and an Order; (b) Customer’s alterations to the Digimarc Illuminate Platform, Digimarc Products, or Licensed Software; (c) problems with or caused by software or hardware provided by Customer or any third party; or (d) Customer’s use of the Digimarc Illuminate Platform, Digimarc Products, or Licensed Software with any hardware, software, or services not approved by Digimarc in writing.
5.2. Customer Obligations. Customer shall, and Customer shall ensure its Customer Clients: (a) comply with the usage guidelines for the Digimarc Illuminate Platform and Digimarc Products specified in the Service Level Agreement; (b) use the Digimarc Illuminate Platform, Digimarc Products, and Licensed Software only as authorized under an Order; (c) promptly provide Digimarc with all complete and accurate information, cooperation, access, facilities, equipment, and assistance required by Digimarc to perform its obligations under this Agreement; (d) keep secure and confidential any API keys and passwords used to access the Digimarc Illuminate Platform; and (e) enter an agreement with all Customer Clients and End Users that provides Digimarc the rights necessary to perform its obligations under this Agreement and provides Digimarc the same level of protection as is provided by Customer under this Agreement. Customer is liable for all activities undertaken on the Digimarc Illuminate Platform when accessed using its API keys and passwords.
5.3. Customer Restrictions. Customer shall not, and Customer shall ensure its Customer Clients and End Users do not: (a) exceed the usage limitations for the Digimarc Illuminate Platform and Digimarc Products specified in the Service Level Agreement; (b) post or transmit anything using the Digimarc Illuminate Platform or Digimarc Products which is technically harmful (including computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data, or other malicious software or harmful data); (c) access or attempt to access information and services of third parties to which Digimarc has not provided authorized access; (d) cause access to or use of the Digimarc Illuminate Platform to be interrupted, damaged, or impaired; (e) redistribute, encumber, sell, rent, lease, or transfer the Digimarc Illuminate Platform or Digimarc Products, other than as permitted under an Order; (f) probe, scan, test the vulnerability of, or breach the security or authentication measures on, the Digimarc Illuminate Platform or any network connected to the Digimarc Illuminate Platform; (g) engage in any High-Risk Activities; (h) access the Digimarc Illuminate Platform, Digimarc Products, or Licensed Software for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes; or (i) access, store, distribute, or transmit any viruses, or any material that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit activity; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or (vi) is otherwise illegal or causes damage or injury to any person or property, and Digimarc may, without liability or prejudice to Customer or any Customer Client, disable Customer’s or any Customer Client’s access to any material that violates the provisions of this section. Customer shall use reasonable efforts to prevent unauthorized access to, or use of, the Digimarc Illuminate Platform, Digimarc Products, and Licensed Software, and Customer shall promptly notify Digimarc of any such unauthorized access or use.
6. Data Processing
Customer shall comply with all Data Protection Laws in connection with its use of the Digimarc Illuminate Platform, Digimarc Products, and Licensed Software, including those in respect of the placing and use of cookies and the receipt of consent to use cookies from Customer Clients and End Users. Customer represents and warrants to Digimarc that Customer has obtained and will obtain all personal data included in Customer Data used with the Digimarc Illuminate Platform, Digimarc Products, and Licensed Software in a lawful manner, consistent with Data Protection Laws. Digimarc will process personal data included in Customer Data in accordance with all Data Protection Laws and the Data Processing Agreement at https://www.digimarc.com/legal/data-processing-agreement.
Digimarc may collect and analyze data and other information relating to the provision, use, and performance of the Digimarc Illuminate Platform, Digimarc Products, Licensed Software, and related systems and technologies. Digimarc may: (a) use such information and data to enhance the Digimarc Illuminate Platform, Digimarc Products, and Licensed Software and for other development, diagnostic, and corrective purposes in connection with the Digimarc Illuminate Platform, Digimarc Products, and Licensed Software, and (b) maintain anonymized data obtained in the course of providing the Digimarc Illuminate Platform, Digimarc Products, and Licensed Software, in Digimarc’s databases for product enhancement, validation of its professional norms and standards development, and for benchmarking and industry studies, provided that such data will only be used or disclosed in a form not capable of identifying Customer, any individual, or any specific transaction.
7. Proprietary Rights
7.1. Ownership. The Digimarc Illuminate Platform, Digimarc Products, and Licensed Software are licensed and not sold. Digimarc and its suppliers retain all right, title, and interest in and to the Digimarc Illuminate Platform, Digimarc Products, and Licensed Software. Digimarc may use suggestions from Customer to improve its products and services.
7.2. No Reverse Engineering. Except as expressly permitted by this MSA or under applicable law Customer shall not: (a) reverse engineer, decompile, disassemble, redistribute, modify, or create derivative works of, the Digimarc Illuminate Platform, Digimarc Products, or Licensed Software; (b) access or use the Digimarc Illuminate Platform, Digimarc Products, or Licensed Software to build a product or service that competes with Digimarc; or (c) copy, modify, duplicate, mirror, republish, download, display, transmit, or distribute the Digimarc Illuminate Platform or Digimarc Products. If Customer creates any derivative works of the Digimarc Illuminate Platform, Digimarc Products, or Licensed Software, Customer hereby assigns all right, title, and interest in and to those derivative works to Digimarc. Customer shall promptly notify Digimarc if Customer learns that anyone has or is attempting to undertake the activities prohibited by this section. Digimarc, at its discretion, may terminate this MSA and all Orders entered with Customer immediately if Customer violates this section.
8. Fees and Payment
8.1. Fees. Customer shall pay Digimarc the fees stated in each Order without deduction or set-off. Customer shall reimburse Digimarc for reasonable travel and related expenses incurred in its performance of Professional Services.
8.2. Reporting. Customer’s rights to use the Digimarc Illuminate Platform, Digimarc Products, Digital Twins, and Licensed Software, and to create Digitized Items, under an Order may be subject to Customer’s payment of fees based on the extent of Customer’s exercise of those rights. The Fee Reporting Frequency specified in any such Order identifies the timing and duration of each period for which Customer must provide this reporting (each a “Reporting Period”). Under any such Order, Customer shall accurately track and report to Digimarc the extent of Customer’s exercise of those rights for each Reporting Period, as follows: within five days after the end of each Reporting Period, an estimate of the fees due for that Reporting Period, and within 30 days after the end of each Reporting Period, the actual fees due for that Reporting Period and the basis of those fees.
8.3. Payment. Customer shall pay each invoice issued by Digimarc within 30 days of issuance. If an Order licenses more than one Customer-related entity, all entities licensed under that Order are jointly responsible for the payment of all fees due under that Order, regardless of any designation of a single entity as the paying party. Customer shall pay Digimarc interest on overdue amounts at a rate of 1% per month or the maximum rate allowed under applicable law, whichever is lower, if Digimarc charges that interest. Digimarc may suspend its provision of the Digimarc Illuminate Platform, Digimarc Products, and Licensed Software until Digimarc receives payment of any overdue amounts.
8.4. Fee Adjustment. Unless otherwise agreed between Digimarc and Customer in an Order, on January 1 of each year, each of the fee and hourly rate amounts stated in each Order will increase by the Consumer Price Index for the full calendar year most recently ended plus an additional two percentage points. “Consumer Price Index” means the Consumer Price Index published by the Bureau of Labor Statistics of the United States Department of Labor for All Urban Consumers (CPI-U), U.S. City Average, All items, not seasonally adjusted, 1982-1984=100 reference base.
8.5. Taxes. Customer shall pay to Digimarc an amount equal to any sales tax, service tax, use tax, or similar tax that Digimarc is required to collect in connection with this Agreement. Customer is responsible for all other taxes due in connection with this Agreement, excluding taxes on Digimarc’s income. Amounts owed to Digimarc must be paid without deduction or withholding for any taxes.
8.6. Records. Customer shall maintain records sufficient to verify Customer’s calculation of amounts due under this Agreement. Customer shall maintain those records for no less than three years after the end of the calendar year during which they are created or, in the event of a dispute between the parties involving those records, until the dispute is resolved, whichever is later.
8.7. Audit. Digimarc and its authorized representatives may conduct audits to verify Customer’s compliance with its obligations under this Agreement. Customer shall facilitate each audit by providing access to its premises and all records, other documents, and information relating to this Agreement, as requested by Digimarc and its authorized representatives. If an audit reveals an underpayment, Customer shall promptly pay Digimarc the amount of that underpayment, including interest. If an audit reveals an underpayment of 5% or more, Customer shall also pay Digimarc an amount equal to the entire cost of the audit.
9. Term and Termination
9.1. MSA Term. This MSA is effective on the Effective Date and will remain in effect until all Orders have terminated, unless earlier terminated (the “Term”).
9.2. Order Term. Each Order will commence on the start date specified in that Order and continue for the term specified in that Order (the “Initial Order Term”), unless earlier terminated. If an Order provides for automatic renewal, at the conclusion of the Initial Order Term, that Order will automatically renew for successive periods of the renewal length specified in that Order (each a “Renewal Order Term”), unless either party provides written notice of its intent not to renew at least 30 days prior to the start of the next Renewal Order Term.
9.3. Termination for Breach. Either party may terminate this Agreement on written notice to the other party if the other party fails to cure a material breach of this Agreement within 30 days after receiving notice of the breach (a “Material Breach”).
9.4. Termination for Default. Either party may terminate this Agreement on written notice to the other party if: (a) the other party files a petition for bankruptcy or is adjudicated a bankrupt; (b) a petition in bankruptcy is filed against the other party and the petition is not dismissed within 60 days; (c) the other party becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy or other similar law; (d) the other party discontinues its business; or (e) a receiver is appointed for the other party (each an “Event of Default”).
10. Effect of Termination
10.1. Effect of Termination.
10.1.1. Order Termination. On termination of an Order: (a) the licenses and other rights granted to Customer under that Order will terminate; (b) Customer shall cease using and return or destroy the Licensed Software licensed under that Order; (c) Customer shall remove the Licensed Software from all Customer Applications created under that Order; (d) Customer shall cease producing Digitized Items or otherwise using Enhanced Digital Designs under that Order; and (e) Digimarc may disable the Digimarc Illuminate Platform, Digimarc Products, and Digital Twins, each as licensed to Customer under that Order, and otherwise cease providing Services under that Order. Termination of an Order will not result in a refund of fees paid or a waiver of fees accrued under that Order.
10.1.2. MSA Termination. On termination of this MSA, the licenses and other rights granted to Customer in this MSA will terminate, except as follows: with the exception of termination for Customer’s Material Breach, Event of Default, or violation of Section 7.2 (No Reverse Engineering), this MSA will continue to apply to each Order in effect as of the date of termination of this MSA until that Order is terminated.
10.2. Survival.
10.2.1. Order Survival. The following provisions of each Order will survive termination of that Order: all fee reporting and payment obligations accruing prior to termination.
10.2.2. MSA Survival. The following provisions will survive termination of this MSA and all Orders surviving termination of this MSA: Sections 1 (Definitions); 3.1.2(c) (Mobile Application Metrics); 6 (Data Processing); 7 (Proprietary Rights); 8 (Fees and Payment), with respect to the period prior to termination; 10 (Effect of Termination); 12 (Indemnification); 13 (Warranty Disclaimer); 14 (Limitation of Liability); 15 (Confidential Information), as stated in that section; and 16 (Miscellaneous).
11. Warranties
11.1. Reciprocal Warranties. Each party represents and warrants to the other party that: (a) it has full power and authority to execute this Agreement and to perform its obligations under this Agreement; (b) this Agreement constitutes a legal, valid, and binding obligation; (c) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will violate or conflict with any of its obligations; and (d) it will comply with all laws and regulations applicable to this Agreement.
11.2. Digimarc Warranty. Digimarc represents and warrants to Customer that the Digimarc Illuminate Platform and Digimarc Products will operate in accordance with the Digimarc Product Descriptions when used as licensed under an Order.
11.3. Customer Warranty. Customer represents and warrants to Digimarc that it has all rights necessary to provide Digimarc the Customer Data and Customer Materials.
12. Indemnification
12.1. Customer Indemnity. Customer shall indemnify and defend Digimarc and its directors, officers, and employees from and against all damages, losses, judgments, authorized settlements, reasonable legal fees, and court costs resulting from any claim of any third-party action, suit, or proceeding arising out of or relating to Customer’s breach of any Order or this MSA; Customer’s, Customer Clients’ or End Users’ use of Customer Applications or Customer Client Applications; or Digimarc’s use of Customer Data or Customer Materials consistent with the terms of this Agreement.
12.2. Digimarc Indemnity. Digimarc shall indemnify and defend Customer and its directors, officers, and employees from and against all damages, losses, judgments, authorized settlements, reasonable legal fees, and court costs resulting from any claim of any third-party action, suit, or proceeding alleging that the Digimarc Illuminate Platform, Digimarc Products, or Licensed Software infringe the intellectual property rights of that third party. Digimarc’s obligations under this section do not apply to the extent the claim is based on unauthorized use or modification of the Digimarc Illuminate Platform, Digimarc Products, or Licensed Software; Licensed Software developed or customized in accordance with Customer’s designs, requirements, or specifications; use of the Digimarc Illuminate Platform, Digimarc Products, or Licensed Software in combination with other products, equipment, software, or data not supplied by Digimarc, where the claim would have been avoided but for the combination of the Digimarc Illuminate Platform, Digimarc Products, or Licensed Software with other products, equipment, software, or data not supplied by Digimarc.
12.3. Indemnification Procedures. A party entitled to indemnification under this section (the "Indemnified Party”) shall provide the party obligated to provide indemnification under this section (the “Indemnifying Party”) prompt written notice of any indemnified claim, provided Indemnified Party’s failure to give Indemnifying Party such notice will not relieve Indemnifying Party of its obligations under this section with respect to the indemnified claim except to the extent that Indemnifying Party is materially prejudiced by the failure. Indemnifying Party has the sole right to enter or consent to any settlement, compromise, or discharge (including the consent to entry of any judgment) of any indemnified claim, provided Indemnified Party must consent to any settlement, compromise, or discharge that does not contain a full and unconditional release of Indemnified Party. Indemnified Party shall reasonably cooperate with Indemnifying Party in the defense of any indemnified claim.
12.4. Mitigation. If any component of the Digimarc Illuminate Platform, Digimarc Products, or Licensed Software becomes, or in Digimarc’s opinion is likely to become, the subject of an infringement or misappropriation claim, Digimarc may, at its own expense, procure for Customer or Customer Clients the right to continue using that component of the Digimarc Illuminate Platform, Digimarc Products, or Licensed Software, replace or modify that component of the Digimarc Illuminate Platform, Digimarc Products, or Licensed Software so that it becomes non-infringing, or terminate the applicable Order or this MSA and provide Customer a prorated refund of any prepaid, unearned fees.
12.5. Exclusive Right and Remedy. This section sets forth the exclusive rights and remedies of the parties with respect to any indemnified claims or other matters of indemnification under this Agreement.
13. Warranty Disclaimer
WITH THE EXCEPTION OF THE EXPRESS WARRANTIES MADE BY DIGIMARC IN THIS MSA OR ANY ORDER, THE DIGIMARC ILLUMINATE PLATFORM, DIGIMARC PRODUCTS, LICENSED SOFTWARE, PROFESSIONAL SERVICES, AND DELIVERABLES ARE PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND. DIGIMARC EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING ALL WARRANTIES WHICH, BUT FOR THIS PROVISION, MIGHT ARISE FROM COURSE OF DEALING, CUSTOM, OR TRADE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
14. Limitation of Liability
WITH THE EXCEPTION OF EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT; EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; AND EITHER PARTY’S INFRINGEMENT, VIOLATION, OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM ANY CLAIM OR ACTION UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. IN NO EVENT WILL DIGIMARC’S AGGREGATE LIABILITY TO CUSTOMER EXCEED THE AMOUNTS PAID BY CUSTOMER TO DIGIMARC UNDER THE ORDER GIVING RISE TO THE LIABILITY.
15. Confidential Information
15.1. Definition. In the course of the relationship between the parties established by this Agreement, each party may receive or have access to information and material of the other party or its Affiliates that is confidential or proprietary (“Confidential Information”).
15.2. Exceptions. Confidential Information does not include information that: (a) was in the public domain or publicly known at the time it was communicated to the receiving party by the disclosing party; (b) entered the public domain or became publicly known after it was communicated to the receiving party by the disclosing party through no fault of the receiving party; (c) was in the receiving party’s possession free of any obligation of confidence at the time it was communicated to the receiving party by the disclosing party; or (d) was developed by employees, contractors, or agents of the receiving party independently of and without reference to any information communicated to the receiving party by the disclosing party.
15.3. Obligations. Confidential Information may only be used by employees, contractors, agents, legal advisors, and financial advisors of the receiving party and its Affiliates who have a need to know that information for purposes related to this Agreement (each a “Representative”), provided each Representative signs a confidentiality agreement at least as protective of the disclosing party’s Confidential Information as this MSA before receiving any disclosing party Confidential Information. Each party is liable for its Representatives’ breach of the terms of this section as though that breach was its own. The receiving party shall protect Confidential Information of the disclosing party from unauthorized disclosure to third parties with the same degree of care as the receiving party uses for its own similar information, but no less than a reasonable degree of care, during the Term and for a period of five years after termination of this Agreement, unless the Confidential Information is a trade secret, in which case the receiving party shall protect the Confidential Information until it is no longer a trade secret. Either party may disclose the Confidential Information of the other party if required by a valid court order, subpoena, or government regulation, provided that the party required to make the disclosure notifies the party whose Confidential Information is to be disclosed promptly and in writing of the required disclosure and cooperates with the other party if the other party seeks to contest or limit the scope of that disclosure.
16. Miscellaneous
16.1. Governing Law; Forum. This Agreement, and all disputes arising under or relating to this Agreement, are governed by the laws of the State of Oregon, USA, excluding its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are expressly disclaimed and do not apply to this Agreement. The parties agree that the state and federal courts of the State of Oregon, USA, have exclusive jurisdiction to resolve all disputes arising from or relating to this Agreement. Each party irrevocably waives all objections to the jurisdiction of those courts.
16.2. Assignment. Customer shall not assign this Agreement, including by any Change of Control, without Digimarc’s prior written consent. “Change of Control” means an acquisition, a sale of business to which this Agreement pertains, or a merger, consolidation, or reorganization involving Customer, regardless of whether Customer is a surviving or disappearing entity. Digimarc may assign this Agreement to any party agreeing to be bound by its terms. This Agreement binds, and inures to the benefit of, the parties and their respective successors and permitted assigns. Any attempt to assign this Agreement other than as expressly permitted by this Agreement is void from its inception.
16.3. Notices. Notices are validly given on the earlier of confirmed receipt by the receiving party or three days after dispatch by courier or certified mail, postage prepaid, properly addressed to the receiving party. Digimarc’s address for notice is stated below. Customer’s address for notice is that stated in the last completed Order. Either party may change its address by providing the other party notice in accordance with this section.
Digimarc Corporation
8500 SW Creekside Place
Beaverton, Oregon 97008
USA
Attn: Chief Legal Officer
16.4. Independent Contractors. The relationship of the parties established by this Agreement is that of independent contractors and neither party is a partner, employee, agent, or joint venturer of, or with, the other.
16.5. Non-Exclusivity. The relationship of the parties established by this Agreement is non-exclusive, and nothing contained in this Agreement restricts Digimarc from offering to sell or license, or selling or licensing, any products or services to anyone for any use.
16.6. Force Majeure. Neither party is responsible for its failure to perform under this Agreement due to unforeseen circumstances or causes beyond its control, such as acts of God, wars, riots, embargoes, strikes, acts of civil or military authorities, fires, or floods, provided that the nonperforming party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
16.7. Non-Waiver. The failure of either party to enforce any provision of this Agreement is not a waiver of the right of that party to enforce that provision.
16.8. Severability. If any provision of this Agreement is held to be unenforceable in any respect, the unenforceability of that provision will not affect any other provision, and this Agreement will be construed as though the unenforceable provision never existed.
16.9. Headings. The section headings used in this Agreement are for reference only and are not intended to be used to interpret this Agreement.
16.10. Counterparts. The parties may execute this Agreement in counterparts, each of which is deemed an original and all of which together constitute the same document.
16.11. Currency. All fee amounts stated in each Order are in the currency specified in that Order, and Customer shall make all payments due under that Order in that currency.
16.12. No Third-Party Beneficiaries. No other person or entity, including any Customer Client or End User, is a third-party beneficiary of this Agreement.
16.13. Modification; Entire Agreement. Modifications to this Agreement must be made by a writing signed by an authorized representative of each party. This Agreement sets forth the entire understanding between the parties to this Agreement and supersedes and merges all previous written and oral negotiations, commitments, understandings, and agreements between the parties relating to the subject matter of this Agreement. All representations and warranties set forth in this Agreement are contractual in nature only and subject only to the remedies set forth in this Agreement. Customer has not relied and will not rely on any other representations or warranties. No terms of any purchase order, confirmation, invoice, or similar document issued by Customer in relation to any Order are binding on Digimarc.
16.14. No Construction against Drafter. Any principle of contract construction or rule of law that provides that an agreement is to be construed against the drafter of the agreement if there is any inconsistency or ambiguity in the agreement does not apply to this Agreement.
16.15. Costs. Each party will bear its own costs under this Agreement, except as expressly provided in an Order.
16.16. Injunctive Relief. If a party breaches or threatens to breach any term of this Agreement or any Order, the other party may suffer irreparable harm for which monetary damages alone are not adequate, and the other party may seek injunctive relief in any court of competent jurisdiction.
