SECTION 4. PROPRIETARY RIGHTS.
4.1 Ownership of Intellectual Property Rights; Feedback. RapidRatings, including RapidRatings licensors, exclusively owns and shall retain all right, title and interest, including all other intellectual property or proprietary rights in and to the Services, Documentation, Reports and related analysis, including all software programs contained therein and derivatives thereof; provided however, that any third-party intellectual property incorporated into the foregoing shall remain the property of the third-party owner thereof (collectively, “RapidRatings Property”). Subject to the limited rights expressly granted hereunder, RapidRatings, including RapidRatings licensors, hereby reserve all rights not expressly granted to Discloser in this Agreement, and Discloser will not acquire any such rights, whether by virtue of this Agreement, operation of law, estoppel, or otherwise. Discloser shall not contest, directly or indirectly, the validity or RapidRatings’ ownership of any intellectual property rights in and to the RapidRatings Property. Discloser shall not do anything that may adversely affect the validity or enforceability of any intellectual property right licensed to or owned by RapidRatings, including any act, or assistance to any act, that may infringe or misappropriate or lead to the infringement or misappropriation of any such intellectual property right. Discloser hereby irrevocably assigns to RapidRatings all right, title, and interest in and to any suggestions, enhancement requests, recommendations, or corrections (collectively “Feedback”) related to the RapidRatings Property. RapidRatings will not be obligated to compensate or credit Discloser or any third party for such Feedback or hold any Feedback in confidence. Discloser agrees to and does hereby irrevocably appoint RapidRatings as Discloser’s attorney-in-fact with full power of substitution in Discloser’s name, place and stead, in any and all capacities, to execute, verify, acknowledge and deliver any document necessary or appropriate to effectuate the provisions of this Section, such appointment is and will be a power coupled with an interest.
(a) By RapidRatings. RapidRatings shall defend Discloser from and against any third-party claim that the Service, when used by Discloser in accordance with this Agreement and the Documentation, infringes, misappropriates or violates any of the following United States rights: patent, copyright, trademark, trade secret or other intellectual or proprietary right of such third party, and RapidRatings shall pay any losses, damages, liabilities or expenses finally awarded by a court of competent jurisdiction or that are required to be paid in a settlement agreed to, in writing, by RapidRatings. RapidRatings shall have no liability under this Section for any claim that arises out of or results from (i) use, alteration, or modification of the Service other than as specified in this Agreement or in any Documentation provided to Discloser; (ii) the combination of the Service with any of Discloser’s data, products, services, hardware, or business processes; or (iii) Discloser’s specifications or requirements. If RapidRatings becomes aware of a claim, or the intent of a third party to file a claim, of infringement or misappropriation related to the Services, RapidRatings may, at RapidRatings’ option, (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching the warranties under this Agreement, (ii) obtain a license for Discloser’s continued use of the Services in accordance with this Agreement, or (iii) terminate the Service and this Agreement upon thirty (30) days’ written notice and refund any prepaid fees. THE FOREGOING IS RAPIDRATINGS’ SOLE LIABILITY AND DISCLOSER’S SOLE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF INTELLECTUAL PROPERTY RIGHTS.
(b) By Discloser. Discloser will indemnify, defend and hold RapidRatings harmless from and against any claims, losses, damages, liabilities or expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from: (i) Discloser’s or any User’s violation of any Federal, state or local law, rule, or regulation relating to its use of the Service or the conduct of Discloser’s or User’s business, including Discloser’s or User’s collection and use of any Discloser Data; (ii) a claim, which, if true, would constitute a breach of any of its obligations, representations or warranties hereunder; (iii) any third party claim that any Discloser Data infringes, misappropriates or violates any intellectual or any other third party right, (iv) any claim that may arise out of Discloser’s or User’s use of the Services; and (v) any claim by Customer relating to Discloser Data.
(c) Indemnification Procedure. Promptly after the receipt by an indemnified party of a notice of any third party claim or the commencement of any action that is subject to indemnification under this Section, the indemnified party shall notify the indemnifying party in writing of any such claim; provide the indemnifying party with reasonable assistance to settle or defend such claim, at the indemnifying party’s own expense; and grant to the indemnifying party the right to control the defense and settlement of such claim, at the indemnifying party’s own expense; provided, however, that: (i) the failure to so notify shall relieve the indemnifying party of its liability to the indemnified party only to the extent that the indemnifying party is prejudiced thereby; (ii) the indemnifying party shall not, without the indemnified party’s consent (such consent not to be unreasonably withheld or delayed), agree to any settlement requiring anything other than monetary payment that will be indemnified by the indemnifying party hereunder; and (iii) the indemnified party shall have the right, at its own expense, to participate in any legal proceeding to contest and defend a claim, and to be represented by legal counsel of its choosing, but shall have no right to settle a claim without the indemnifying party’s written consent, unless the indemnifying party fails to perform its obligations set forth in this Section.
4.3 Enforcement. To the extent practicable, Discloser shall notify RapidRatings promptly in writing upon becoming aware of any suspected infringement or misappropriation of an intellectual property right of RapidRatings by a third party, and shall provide RapidRatings with a copy of all documents and information relating thereto as long as such production is not proscribed by contract or other reason. RapidRatings shall have the right, but not the obligation, to take action in its own name to secure the cessation of any infringement or misappropriation of any intellectual property right or to bring an action against an alleged infringer. Discloser shall cooperate with RapidRatings in RapidRatings’ enforcement of its intellectual property rights. Nothing in this Agreement or otherwise will be construed to impair or limit RapidRatings’ right to enforce its intellectual property rights against any third party.
4.4 Confidential Information.
(a) Discloser understands and agrees that RapidRatings will be collecting, and may have already collected, financial information from Discloser to provide Services. This financial information is Discloser’s Data, owned or licensed by Discloser. However, Discloser understands and agrees that RapidRatings will use the financial information perform the Services, including to create Reports, create RapidRatings derivative data, and perform distribution services under this Agreement. Discloser hereby grants RapidRatings the right to use and disclose the Discloser’s Data as necessary to fulfill its obligations under this Agreement, including, without limitation, to provide the underlying financial information and distribute such Reports to Customer or other designated third party. Discloser grants RapidRatings a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, transferable, sublicensable license to store, host, reproduce, access, use, transmit, communicate, distribute, translate, modify, adapt, create derivative works of and display all Discloser Data provided to RapidRatings for use with the Services, including the Reports, for use as necessary to perform its obligations under this Agreement, and to use such financial information to develop the RapidRatings database. Discloser agrees that RapidRatings may use Discloser Data to compile, use, and disclose anonymous or aggregated analytics, provided that no such information will directly identify and cannot reasonably be used to identify Discloser or Discloser’s Users. Discloser grants RapidRatings the right to display Discloser’s name and other publicly available information in the Services.
(b) Discloser shall use commercially reasonable efforts to prevent the unauthorized use, disclosure, or publication of RapidRatings’ Confidential Information (as defined below) and treat it with the same degree of care that it uses to protect the confidentiality of its own Confidential Information (but not less than reasonable care.) Discloser shall only use the RapidRatings Confidential Information that may be accessed by Discloser for use with the Services. Any Reports or Feedback are considered Confidential Information of RapidRatings. This provision expressly survives the expiration or termination of this Agreement in perpetuity with respect to the Services, Feedback, and Reports, or other information downloaded, copied, or removed from the Services. “Confidential Information” means all information regarding a RapidRatings’ business or affairs, including, business concepts, processes, methods, systems, know-how, devices, formulas, product specifications, marketing methods, prices, customer lists, methods of operation, or other information, whether in oral, written, or electronic form, designated as confidential or that is disclosed under circumstances such that a reasonable person would know it is confidential.
(c) RapidRatings shall take commercially reasonable measures to prevent the unauthorized disclosure of Discloser Data and will use efforts commensurate with, or exceeding, those that RapidRatings employs for the protection of corresponding similar information of its own, but no less than a reasonable standard of care. RapidRatings may disclose Discloser Data if required by law, in any judicial or administrative proceeding, or by any governmental or regulatory authority and, provided RapidRatings shall not be legally prevented from so doing, shall give the Discloser prompt written notice of that requirement prior to such disclosure. RapidRatings will furnish only that portion of the Discloser Data which, in the reasonable opinion of competent legal counsel, it is legally required to furnish.