“Affiliate” means any entity which directly or indirectly owns or controls, is controlled by, or is under common control with, Donnelley Financial or Client, as the case may be.
“Agreement” means these terms and conditions and any Proposal which was submitted to the Client.
“Controlling”, “controlled by”, or “under common control with” means either the beneficial or outright ownership of more than fifty (50) percent (%) of (i) the affiliate or business entity itself or (ii) the affiliate’s or business entity’s shares.
“Client” means the party to which the Proposal is addressed.
‘’Client Personal Data’’ means all information and data (including texts, documents, drawings, diagrams, images or sounds) owned by, licensed to (other than by the Supplier) or relating to the Client and/or any of its customers, which is in each case generated by, to, or is otherwise retained by, Donnelley Financial pursuant to or in connection with this agreement.
‘’Data Protection Legislation’’ means all applicable law, from time to time, relating to the processing of personal data and privacy.
“Data Room” means the service through which Client’s authorised End Users may process, store, reference and communicate information, documentation, or files in respect of a specific business transaction or project.
“Donnelley Financial” means Donnelley Financial Solutions Japan Inc with its registered office at PMO Tsukasamachi Bldg 9F, 2-8-1, Kanda-Tsukasamachi, Chiyoda-Ku, Tokyo, Japan
“Effective Date” means earlier of (i) the commencement date for the Services as set out in the Proposal; or (ii) the first date on which the Data Room is used by the Client or by an End User (other than for demonstration purposes).
“End User(s)” means those employees, professional advisors, contractors, customers and agents of Client who have been granted permission to access Data Rooms.
"Permitted Use" means the specific business transaction (or set of business transactions) for which a Data Room is created.
“Proposal” means Donnelley Financial’s proposal accepted by the Client whether by written or oral acceptance by the Client, or by the use of the Data Room by the Client or an End User (other than for demonstration purposes).
“Services” means secure online document hosting, exchange, communication and related services (including without limitation Data Rooms) provided by Donnelley Financial to Client.
Subject to the terms of this Agreement, Donnelley Financial hereby grants Client and its End Users a revocable, non-exclusive, non-sublicensable, non-transferable, limited right and licence to use the Services for Client’s or End Users’ business transactions. Client shall use (and shall ensure that End Users use) each Data Room only for its Permitted Use and for no other use or purpose. Client shall not allow any third party to use or access the Services provided to Client hereunder, except third party End Users authorised by Client to access the Data Room for the Permitted Use. Title and all ownership rights in the Services and any adaptation thereof, including all related patents, copyrights and other proprietary rights, are and shall at all times remain with Donnelley Financial or its licensors or suppliers. Neither Client nor its End Users shall attempt to decompile, reverse-engineer or disassemble (except as permitted by law), duplicate, modify or distribute any element of the Services.
Donnelley Financial shall use reasonable endeavours to ensure that the Services are provided in a secure environment and without interruption, and that the Services will substantially conform to the descriptions of the features and functionality of the Data Rooms contained in this Agreement, which may be modified from time to time by Donnelley Financial. Donnelley Financial does not warrant that the Services will meet all of Client’s business requirements, or that the Services will be free of errors, interruption, faults or delays. Client acknowledges and agrees that scheduled downtime may be required for upgrades, backup or maintenance. If End Users are likely to be affected by scheduled downtime, Donnelley Financial shall use all reasonable efforts to provide notification of such scheduled downtime on the site.
Donnelley Financial’s sole liability, and Client’s sole and exclusive remedy, under the foregoing warranties shall be limited to supplying, as soon as practicable, and at Donnelley Financial’s cost and expense, services that Donnelley Financial determines to be necessary to allow the Services to perform in accordance with the applicable specifications, provided however, that written notice of an asserted breach of warranty must be received by Donnelley Financial promptly after Client or its End Users first become aware of such asserted breach, and in any event, no later than thirty (30) calendar days after Client or its End Users first become aware of such asserted breach. The foregoing warranties will not apply to the extent that (i) the Services are used for any purpose other than the Permitted Use, (ii) the cause of a breach of warranty is due to a malfunction in Client’s hardware, software, or communications network through which the Services are accessed, or (iii) the cause of a breach of warranty is due to any other cause outside of Donnelley Financial or its hosting facility’s sole and reasonable control.
Except as expressly provided in this Agreement, all warranties, conditions, representations, indemnities and guarantees with respect to the Services and the accuracy, operation, functionality, qualifications, or capabilities of the deliverables, Services, or resources provided hereunder, whether express or implied, arising by law, custom, prior oral or written statements by either party, or otherwise (including, but not limited to any warranty of satisfactory quality, merchantability, fitness for particular purpose, title and non- infringement) are hereby overridden, excluded and disclaimed to the extent legally permissible.
4. LIMITATION OF LIABILITY
In the event of any loss, damage or destruction of documents, files or media caused by any act, error, omission, negligence or other cause by Donnelley Financial or any of its affiliates, agents, vendors or subcontractors, Donnelley Financial's liability shall be limited to the cost of duplication of such documents or files from backup copies maintained by client and the cost of replacement media. Under no circumstances will Donnelley Financial, its Affiliates, employees, agents, or contractors be liable for the cost of recreating information for which no backup copies have been retained by the Client. Donnelley Financial, its Affiliates, employees, agents and contractors shall have no liability to Client, any Client Affiliate or End User for any consequential, indirect, special, punitive or incidental damages or lost profits, lost revenue or loss of opportunity, whether foreseeable or unforeseeable, whether based on claims of Client, its Affiliates or End Users (including, but not limited to, claims for wasted costs, loss of goodwill, use of or reliance on the services, stoppage of other work or impairment of or diminution in value of other assets/transactions), howsoever arising, even if advised of the possibility of such damage. Save where liability cannot be restricted by law, in no event shall the aggregate liability of Donnelley Financial or its Affiliates exceed the amount actually paid by the Client (excluding VAT) for the Services. No action, regardless of form, arising out of or related to the use of the Services pursuant to this Agreement may be brought by Client more than twelve (12) months after the cause of action first arose. Notwithstanding the foregoing, Donnelley Financial does not exclude or limit its liability in respect of claims for death or personal injury caused by Donnelley Financial’s negligence or for fraud.
5. CLIENT REPRESENTATIONS
Client hereby represents to Donnelley Financial that:
(i) it has all rights necessary to utilise its Data Rooms and to otherwise perform its obligations under this Agreement;
(ii) any data, media, or other content placed into Client’s Data Rooms does not violate the rights of any third party;
(iii) if any data, media, or other content placed into Client’s Data Rooms is subject to export control restrictions of any country, it will be solely responsible for complying with all applicable export control, restrictions, obligations and requirements,
(iv) it will comply with any other local, state, federal or foreign laws, rules and/or ordinances applicable to the performance of its obligations under (and use of the Services pursuant to) this Agreement;
(v) in using the Services it will not (and will ensure that End Users shall not) post, transmit, store, upload or distribute any a) documents, images or other materials which constitute advertising or b) material for the sole purpose of promoting to consumers any good or service from any business entity mentioned or described in the Data Room, c) marketing materials or d) materials which are defamatory, obscene, illegal or which contravene any applicable laws;
(vi) in using the Services it will not (and will ensure that End Users shall not), introduce any software, virus or other material which could interfere with the operation of the Services; and
(vii) it shall retain a hard and electronic copy of any document, image, file or other information provided to Donnelley Financial during the Services so that if any such document, image, file or other information is lost, damaged or destroyed during the Services, the Client will be able to provide a replacement.
Donnelley Financial shall, at its sole cost and expense, release, defend, indemnify and hold harmless Client, its Affiliates, directors, officers, agents, employees, and shareholders from and against all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys’ fees) of any kind to the extent they in any way relate to or arise, in whole or in part, due to a claim that the technology used by Donnelley Financial for the Data Rooms or Services infringes a patent, copyright, trade mark, trade secret or other proprietary right of a third party, provided that this indemnity shall not apply to the extent that the infringement was caused by any modification of the Services or Data Rooms by or on behalf of the Client or any End User.
Client shall, at its sole cost and expense, release, defend, indemnify and hold harmless Donnelley Financial, its Affiliates, directors, officers, agents, employees, and shareholders from and against all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys’ fees) of any kind to the extent they in any way relate to or arise, in whole or in part, due to a breach of this Agreement (including without limitation, any breach of the Client’s representations in clause 5) or any claim that any document, image, file, data, media, or other content placed into Client’s Data Rooms violates the intellectual property, privacy or other proprietary rights of any third party or violates any laws, rules and/or ordinances.
The party seeking indemnification shall notify the other party promptly of any such action, suit or proceeding and shall cooperate fully with the indemnifying party in the defence of any such claim. The indemnifying party shall have sole control of the defence of any such action and all negotiations for its settlement or compromise, provided that such settlement or compromise shall not interfere with Donnelley Financial's provision of the Services. The indemnified party may participate, at its expense, in the defence of any such action, but shall make no admission of liability or settle any claim without the prior written agreement of the indemnifying party.
Donnelley Financial and Client shall keep as confidential and not disclose to any third party any information concerning each other’s business, Services (including without limitation any software, screen layouts, manuals and process workflows), Data Rooms, clients, investors, fees, software programs, trade secrets, data stored on servers under Donnelley Financial’s control, methods or processes which either first learns during the performance of this Agreement (“Confidential Information”), without the prior written consent of the other party. The terms and pricing of the Services shall be considered Confidential Information.
Each party will use the other party's Confidential Information solely to fulfill its obligations under this Agreement. Neither party will disclose, in whole or in part, the other party's Confidential Information to any person, except to End Users, Affiliates, employees or agents who require access to fulfill the purposes of this Agreement. Client, on behalf of itself and its End Users further agrees not to reverse engineer the underlying technology of the Services.
Each party acknowledges that any unauthorised use or disclosure of the Confidential Information may cause irreparable damage to the other party. If an unauthorised use or disclosure occurs, such party will take, at its expense, all steps that are necessary to recover the other party's Confidential Information and to prevent its subsequent unauthorised use or dissemination, including availing itself of actions for seisure and injunctive relief. If such party fails to take these steps in a timely and adequate manner, the other party may take them at such party's expense.
Neither party will have any confidentiality obligation with respect to any portion of the other party’s Confidential Information that (i) it independently knew or develops, (ii) it lawfully obtains from a third party under no obligation of confidentiality or (iii) becomes available to the public other than as a result of its act or omission.
8. DATA PROTECTION
(i) For the purposes of this clause 8, "data controller", "data processor", "data subject", "personal data", "processing", and "appropriate technical and organisational measures" have the meanings ascribed to them in Data Protection Legislation.
Data controller and data processor
(ii) Both parties will comply with their obligations under the Data Protection Legislation, in the case of Client (or the Client Affiliates, as applicable), as data controller and, in the case of Donnelley Financial, as data processor. In particular, Donnelley Financial undertakes to:
(a) abide by, and procure that its employees, representatives, subcontractors and agents abide by, the Data Protection Legislation; and
(b) provide reasonable assistance to Client and the Client Affiliates in complying with their respective obligations under Data Protection Legislation in relation to the performance of this Agreement.
(iii) Without limiting the foregoing, Donnelley Financial shall:
(a) act only in accordance with Client's (or the relevant Client Affiliate's) written instructions with regard to the processing of Client Personal Data. If Donnelley Financial is required to process Client Personal Data for any other purpose by applicable law, Donnelley Financial shall inform Client of this legal requirement, to the extent permitted to do so by the applicable law;
(b) ensure appropriate technical and organisational measures are in place to safeguard against any unauthorised or unlawful processing and against accidental, alteration, or disclosure of Client Personal Data
(d) immediately notify Client in the event that it receives a request or notice from a data subject exercising his/her rights under the Data Protection Legislation for Client to resolve and to assist the Client promptly with all requests and notices which may be received from data subjects. This includes, upon the applicable Client entity's written request and to the extent permitted by the Data Protection Legislation, where the applicable Client entity cannot itself access such data, promptly providing at no charge such entity with such copies of any Client Personal Data in the possession or control of Donnelley Financial which are requested by that Client entity (in the format and medium reasonably required by that entity);
(e) subject always to clause 8, not disclose Client Personal Data to, or appoint a sub-processor which is, a third party, other than with the prior written agreement of Client or as otherwise permitted in the Agreement (other than in this clause 8 );
(f) Donnelley Financial shall promptly carry out any request from a Client requiring Donnelley Financial to amend, transfer, lock or delete any of Client Personal Data in the possession or control of Donnelley Financial;
(g) on the expiry or termination of this Agreement for any reason, immediately cease to use Client Personal Data and shall arrange for its safe return or destruction as notified by Client in writing at the relevant time;
(h) promptly notify Client upon receiving any notice or communication from any data protection supervisory or government body, including the Office of the Information Commissioner, which relates directly or indirectly to the processing of the personal data under this Agreement, for Client to resolve; and
(i) if any Client Personal Data in the possession or control of Donnelley Financial becomes lost, corrupted, destroyed, altered or rendered unusable for any reason, immediately (but, in any event, thirty six (36) hours of becoming aware) notify Client of any and all circumstances having led to such incident, as Client or any data protection supervisory or government body, including the Information Commissioner's Office, may reasonably require to comply with its security breach obligations under the Data Protection Legislation;
(iv) Without limiting the foregoing, the Client shall;
(a) comply with Data Protection Legislation and ensure that any instructions it issues to Donnelley Financial, including the transfer itself, shall comply with Data Protection Legislation; and
(b) have sole responsibility for the accuracy, quality, and legality of Personal Data, and the means by which the Client acquired Personal Data and shall establish the legal basis for Processing under Data Protection Legislation.
(c) Client warrants that;
1. the disclosure of Personal Data to Donnelley Financial is limited to what is necessary in order for Donnelley Financial to perform the Services;
2. such Personal Data is accurate and up-to-date at the time that it is provided to Donnelley Financial;
3. it shall provide advance written notice to Donnelley Financial of its intention to transfer Personal Data to Donnelley Financial for use in the Services.
(v) Client shall;
(a) collect Personal Data in a manner compliant with Data Protection Legislation, including by providing all notices and obtaining all consents as may be requested under Data Protection Legislation in order for Donnelley Financial to lawfully and fairly process Personal Data in connection with/arising out of the provision of the Services and as otherwise contemplated by the remainder of the Agreement
(b) ensure compliance with the security measures;
(c) notify Donnelley Financial upon becoming aware that Personal Data has become inaccurate or out of date;
(d) indemnify and hold harmless Donnelley Financial against any fines, costs, losses or expenses arising from any breach of Data Protection Legislation caused by an End User.
9. TERM AND TERMINATION
This Agreement shall have an initial term commencing on the Effective Date and continuing for the period as set out in the Proposal agreement during which period neither party may terminate this Agreement save as set out below. Unless otherwise stated in the Proposal, following the initial term this Agreement shall continue unless and until terminated by either party on giving to the other party no less than one month’s notice of termination (Notice Period).
Following the expiry of the initial term and up until the expiry of the Notice Period – the Client shall pay Donnelley Financial for the Services at the applicable extension pricing rate detailed in the Proposal.
Either party may terminate this Agreement upon written notice in the event the other party breaches any of the material terms of this Agreement and fails to cure such breach within thirty (30) calendar days of the breaching party’s receipt of notice from the non-breaching party. Donnelley Financial may deny Client or any of its End Users access to the Services (including the ability to open Data Rooms) if (i) Client or its End Users use the Services beyond the scope of the Permitted Use or in violation of any law or regulation; (ii) Client or any such End User’s use of the Service may, in Donnelley Financial’s reasonable opinion, unreasonably impair the ability of other End Users to access or use the Service; or (iii) Client has failed to pay any overdue invoice after receipt of written or email notice of such failure and a thirty (30) calendar day opportunity to cure.
Upon termination or expiration of this Agreement, unless a winding-up period is specifically agreed by the parties, Client will cease utilising the Services and return all materials relating to or constituting part of the Services, and Donnelley Financial may terminate Client's access to its Data Rooms and remove Client's Data Rooms from the Services at anytime following such termination.
Neither party may assign this Agreement without the other party's prior approval, such consent not to be unreasonably withheld, provided that Donnelley Financial may assign its right to payments hereunder to an Affiliate without such consent, and may subcontract performance of its obligations to its Affiliates.
Donnelley Financial reserves the right at any time to modify the features, functionality or performance of the Services.
If any provision of this Agreement is held to be unenforceable, such unenforceability will not affect the validity of the other provisions of this Agreement.
13. INDEPENDENT CONTRACTORS
This Agreement shall not be deemed to create any employment, partnership, or joint venture relationship between the parties hereto. Neither party shall have the authority or represent itself as having the authority to bind the other party to any agreement or commitment with a third party or otherwise.
14. GOVERNING LAW AND JURISDICTION
This Agreement will be governed and construed in accordance with the laws of Japan. The parties hereby irrevocably submit to the exclusive jurisdiction of the Courts of Japan.
15. FORCE MAJEURE
Donnelley Financial does not and cannot control the flow of data to or from the Services, as such flow depends in large part on the performance of internet services and software provided or controlled by third parties and on the public internet infrastructure, as well as other events beyond the control of Donnelley Financial. At times, action or inaction of parties other than Donnelley Financial or events beyond Donnelley Financial’s reasonable control (“Force Majeure Events”) can impair or disrupt Donnelley Financial’s ability to provide the Services or client’s or its End Users’ ability to access the Services. Notwithstanding anything to the contrary in this Agreement, Donnelley Financial disclaims, and the Client shall not hold Donnelley Financial responsible for, any and all liability resulting from or related to such Force Majeure Events.
The provisions of Sections 1, 3-8, 13-14 and any other provision that should be expected to survive shall survive the termination or expiration of this Agreement.
17. THIRD PARTY RIGHTS
No rights under this Agreement shall be enforceable by any person not party to it except for those clauses that confer rights and benefits on to Donnelley Financial’s Affiliates, directors, officers, agents, employees and shareholders which may be enforced by such persons.
Following completion of the Permitted Use to Client’s reasonable satisfaction, Donnelley Financial may: (i) include Client in current customer lists on the Venue website and other promotional materials, which are shown to prospective users; (ii) display Client’s logo in a rotating display of other companies’ logos on the Venue website; and (iii) use, reproduce and display testimonials, white papers and other materials approved by Client on the Venue website and in other promotional materials.
19. PAYMENT OF INVOICES
Save as may be set out in the Proposal, Client will pay Donnelley Financials invoices within 30 days of the date of such invoice in full and without any deduction or set-off or withholding whether on account of any taxes or other levies or otherwise, save for deductions or withholdings required by applicable laws. In the event that Client is required by applicable law to deduct or withhold amounts from any payments to Donnelley Financial, the fees shall be increased by an amount (and the Client shall increase the amounts paid to Donnelley Financial) such that net amount received by Donnelley Financial is the same as it would have been had there been no deduction or withholding made.
20. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding of the parties with respect to the Services and supersedes all other agreements with respect to the subject matter hereof.
Version: Sept 2020