Intellectual Property & Brand Guidelines; Confidentiality; Termination
1. Intellectual Property License and Ownership.
Each Party hereby gives to the other Party a limited, non-transferable, non-exclusive, non-perpetual, and royalty-free license to duplicate through publication, but not to register, certain of its trademarks and copyrights (individually and collectively, “Intellectual Property”) only to the extent actually required by the Service Provider to complete the Services. Except as specifically set out in this Subsection, no express or implied license, assignment, or grant to Intellectual Property is provided by this Agreement, and no change in ownership of Intellectual Property is contemplated hereby.
2. Brand Guidelines.
A Party may provide the other Party with its brand guidelines at any time and from time to time hereunder, which brand guidelines may include, among other things, how such Party’s Intellectual Property may be displayed in terms of typeface, colour, and similar aspects (“Brand Guidelines”). If Brand Guidelines have been provided to a Service Provider, such Service Provider will use commercially reasonable efforts to adhere to the same in providing the Services.
3. Confidentiality
1. Defined Terms. As used in this Agreement, the term:
a. “Confidential Information” means all information, whether in a tangible, intangible, written, electronic, graphic,
machine-readable, verbal, or other format, that Discloser identifies as confidential in writing when providing the same to Recipient. Confidential Information may include compilations, concepts, data, documents, designs, diagrams, finances, ideas, Intellectual Property, inventions, know-how, marketing, notes, object codes, opportunities, plans, processes, procedures, products, promotions, prototypes, research, services, source codes, specifications, strategies, technology, timetables, and other material respecting customers, partners, personnel, and third parties. Notwithstanding the foregoing, Confidential Information does not include information that, except as a direct or indirect consequence of a wrongful or tortious act including the violation of a confidentiality obligation owing to
Discloser (each, an “Exclusion”): (i) is in or enters the public domain; (ii) was already known to Recipient at the time of its receipt from Discloser; (iii) is received by Recipient from a third party with the right to make such disclosure; (iv) was independently developed by Recipient; or (v) Discloser informs Recipient is no longer to be considered as “Confidential Information” hereunder;
b. “Discloser” means in any given situation the Party hereto that is disclosing or has disclosed Confidential Information
to the other Party; and
c. “Recipient” means in any given situation the Party hereto to which Confidential Information is or has been disclosed
from the other Party.
2. Protection of Confidential Information. Confidential Information is and will remain the exclusive property of Discloser. Recipient will exercise the highest standard of care to safeguard Confidential Information against loss, theft, dissemination, or unauthorized use or disclosure and to preserve the Confidential Information’s secret and confidential nature, which standard will be no less than that which it affords to its own most sensitive information. Recipient will not disclose Confidential Information except:
a. to those of its employees, advisors, and consultants where such disclosure is necessary for Recipient to provide the Services, provided that such individuals must have first entered into a confidentiality agreement with Recipient that would protect the Confidential Information on terms no less onerous than those set out herein; and
b. to the minimal extent required for Recipient to comply with applicable law or a binding order of a judicial, administrative, or governmental entity that has jurisdiction over it, provided that Recipient: (i) gives Discloser sufficient prior notice of such disclosure to allow it to seek a protective order or other appropriate remedy, and cooperates with Discloser in connection therewith; and (ii) uses commercially reasonable efforts to obtain confidential treatment for Confidential Information so disclosed.
4. Termination
1. Termination with Notice. Either Party may terminate this Agreement for good reason before the end of the Service Period by providing at least 3 months’ notice to the other Party. During such notice period, except in respect of Services that are duly cancelled hereunder, each Party will continue to provide the Services in good faith during the Service Period.
2. Termination for Default. If either Party should be in default in its obligations hereunder, including in performing any of its Services, the non-defaulting Party may give written notice to the defaulting Party specifying such default, and the defaulting Party will have ten (10) Business Days (as defined herein) to remedy the defaults
listed on the written notice issue by the non-defaulting Party. Should such defaults not be timely cured to the
reasonable satisfaction of the non-defaulting Party, the non-defaulting Party may immediately terminate this
Agreement upon the provision of written notice to the defaulting Party. As used herein, the term “Business Day”
shall refer any day except any Saturday, any Sunday, or any day that is a Federal or Provincial statutory holiday
in either British Columbia or Alberta.
3. Survival of Obligations. Obligations that have accrued prior to the termination of this Agreement will survive the termination hereto. Without limiting the generality of the foregoing, a Recipient’s obligations respecting the protection of Confidential Information will survive the termination of this Agreement until, but only to the extent that, an Exclusion applies thereto.
Services
The “Service Period”for the Services set out in this Schedule “A” will be the period beginning on the Effective Date
and ending on the date that the Agreement is terminated. Notwithstanding the foregoing, in the event that the Go-Live Date has not occurred on or before the Target Date, either Party may terminate this Agreement pursuant to Section 4.2.
Apollo’s Services during the Service Period shall be as follows:
1. Apollo will work with The Client to “white label” a version of the APOLLO Exchange that is consumer-facing (the “Custom Exchange”), in order for The Client’s eligible customers to have the opportunity to purchase cyber insurance on the Custom Exchange via The Client’s website. The date that the eligible customers of The Client are able to purchase such insurance products via The Client and subsidiaries as provided by Apollo will be referred to herein as the “Go-Live Date”, and:
a. the Parties will use commercially reasonable efforts to ensure that the Go-Live Date occurs on the date specified in the agreement (the “Target Date”);
b. If Apollo considers it necessary or desirable, Apollo may engage one (1) or more third-party service providers to supply administration and brokerage services under the Custom Exchange (collectively, the “Broker Provider”);
c. the Parties hereto, including all and any Broker Providers, may enter into applicable service and ancillary agreements, as the case may be, in respect of the Custom Exchange in substantially the same form as used by Apollo for the APOLLO Exchange;
d. the Custom Exchange will contain standard notice and consent requirements for the customers of the Custom Exchange in order for Apollo, the Broker Provider, and The Client to use such personal information of the customers of the Custom Exchange in connection with the sales and marketing efforts of Apollo, The Client and/or the Broker Provider, acting reasonably;
e. the Custom Exchange will be white-labelled or co-branded for The Client;
f. either or both Apollo and the Broker Provider, as applicable, will provide The Client with customary support for the Custom Exchange, including without limitation as may be commercially reasonably required by The Client to track sales, leads, and to facilitate transactions on such platform; and
g. Apollo and the Broker Provider, as applicable, will provide The Client with commercially reasonable access to the analytics data of the Custom Exchange, including, but not limited to, the ability to track insurance policies purchased thereunder.
4. Upon purchase of an insurance policy on the Custom Exchange by a The Client customer, such customer will also become a customer of each of Apollo and, as applicable, the Broker Provider, and such relationship, unless otherwise terminated by such customer in accordance with the applicable service agreements entered into by such customer, Apollo and all and any other party thereto, will survive the termination of this Agreement.