THIS AGREEMENT is made between Subscriber (as defined in the current Schedule) and Thomson Information South Asia Private Limited, (Company no.U72200KA2007PTC042184, registered in India, with its registered office at "Pinnacle", # 15, Bahai Bhavan Road (formerly Commissariat Road), Bengaluru, Karnataka) (“Supplier”)
WHEREAS, THE PARTIES FOR GOOD AND SUFFICIENT CONSIDERATION, IT IS AGREED AS FOLLOWS
"Additional Terms" means those terms and conditions applicable to certain Third Party Features (including those terms relating to charges) which may differ from and which take precedence over those set out in this Agreement.
"Affiliates" means entities controlling, controlled by or under common control with Supplier.
"Agreement" means the terms and conditions set out in this document, all current and future Schedules, Order Forms and any applicable Additional Terms agreed between Supplier and Subscriber.
"Charges" means those charges payable by Subscriber for access to and use of the Service including Service Charge, Transactional Charges (if any) and Additional User Fees (if any) as stated in the current Schedule or as otherwise agreed in writing by the parties.
"Data" means the data made available to Subscriber under this Agreement.
"Extracts" means insubstantial extracts from the Data (appropriately cited and credited) whether held as separate documents or as incorporated in Work Product in accordance with clause 2.2.1(b) hereof;
"First Commencement Date" see Term
"Licensors" means third parties who license features to Supplier for inclusion in the Service.
"Order Form" means any order form for the supply of the Service to Subscriber.
"Project Database" means a searchable database maintained in connection with an ongoing project of Subscriber which must consist preponderantly of Subscriber's own Work Product with access limited to those internal users actively working on the project.
"Service Billing Cycle" is as specified in the current Schedule.
"Service Charge" is as specified in the current Schedule.
"Schedule" means the document containing supplementary terms and conditions to those contained in this document, including but not limited to the commercial terms relating to the Service, incorporated into this Agreement.
"Subscription Period" is as specified in the current Schedule.
"Supplier Database" means a database identified as owned by Supplier and/or its Affiliates.
"Supplier-Proprietary Data" means Data included in a Supplier Database. Data which is not Supplier Proprietary Data is specified at clause 12 below.
"the Service" means Westlaw™India as currently provided at the uniform resource locator "www.westlawindia.com", an internet-based means of access (including all versions and updates thereto) to the functionality and material specified in the current Schedule and such other functionality and material as may be offered to Subscriber from time to time at Supplier's sole discretion ("the Subscribed Features").
"Term" means the period from the commencement date specified in the first Schedule entered into between the parties as the start of a Subscription Period (or Trial Period as the case may be) ("First Commencement Date") to the end of the Subscription or Trial Period in the last Schedule entered into between the parties.
"Third Party Feature" means a feature owned by a third party who has licensed Supplier to provide that feature as part of the Service.
"Transactional Charges" means charges for access to and use of certain features available on Westlaw other than the Subscribed Features.
"User" means personnel of Subscriber entitled to access and use the Service as specified in the current Schedule.
"Work Product" means Subscriber's own documents, memoranda, advices, briefs and other similar materials whether in print or in electronic form created by Subscriber in the regular course of Subscriber's business which for the purposes of this Agreement includes the following activities
(a) advising clients;
(b) internal training;
(c) producing print or electronic updating/current awareness newsletters for purely internal consumption;
(d) for Academic Institutional Subscribers, print or electronic course packs, including legal research manuals/learning guides
but, in the absence of prior agreement with Supplier, which may require additional Charges, not the following:
(e) producing intranet, extranet or internet sites;
(f) producing print or electronic updating/current awareness newsletters for external consumption or any other client retention/attraction activity;
(g) providing research services other than to clients;
(h) publication or resale;
(i) for Academic Institutional Subscribers, downloading data for use in virtual learning environments.
2.1.1 Supplier hereby grants to Subscriber for the Term a non-exclusive, non-transferable, limited licence to access and use the Service in accordance with the terms and conditions of this Agreement.
2.1.2 All rights to access and use the Service granted to Subscriber or restrictions imposed on Subscriber shall be exercisable or observed (as the case may be) by Users. It shall be the responsibility of Subscriber to ensure that Users act in accordance with such requirements.
2.1.3 Certain features are licensed subject to the provisions of Part II of this Agreement below or subject to Additional Terms, all of which take precedence over the licence granted in this clause 2.
2.2 Permitted Acts - use
2.2.1 Subscriber may:
(a) view the Data on screen;
(b) reproduce, quote and excerpt Extracts in Subscriber's own Work Product;
(c) print Extracts for internal use among Users;
(d) distribute Work Product related to a specific cause of action containing Extracts to:
(i) the court/tribunal before which the cause of action is to be heard, and/or
(ii) the parties to the cause of action, and/or
(iii) their duly authorised representatives.
(e) on an occasional basis either via e-mail or via Westlaw India functionality, transmit or direct Supplier or its Affiliates to transmit individual documents in electronic format to individual internal user(s) for internal use;
(f) download Extracts to a storage device under the exclusive control of Subscriber and temporarily store the same in order to carry out the above functions; and
(g) use the functionality made available through the Service.
2.3 Permitted Acts – storage
2.3.1 Subscriber may store Extracts in a Project Database, whether in hardcopy or electronically (or both)
2.3.2 Subject to 2.3.3, Subscriber may continue to store Extracts in a Retention Database meaning a database or other storage which is not readily accessible searchable or useable by Users and which is retained only for the purpose of proof at a later date, e.g. for purposes of litigation against Subscriber that certain material was reviewed as part of a particular matter.
2.3.3 No Data shall be stored or used in any form of database whether current or archival which is intended for the storage, and/or provision to its users, of access to know-how.
2.4.1 Except as expressly permitted by this Agreement (e.g. in relation to Work Product), or by applicable law, or with Supplier's prior written permission, Subscriber may not do the following (nor may Subscriber permit a third party to do the same):
(a) copy, download, store, publish, transmit, transfer, sub-licence, distribute, sell or otherwise use the Data or any part of the Data in any form or by any means;
(b) re-use, reproduce, decompile, reverse engineer, disassemble, attempt to discern the source code of www.westlawindia.com  or interfere in any way with the Data or any part of the Data;
(c) modify or make any alterations, additions or amendments to the Data or any parts thereof;
(d) combine the whole or any part of the Data with any other software, data or material;
(e) create derivative works from the whole or any part of the Data; or
(f) sell, licence or distribute Data (or any parts thereof) to third parties or use Data or any parts thereof as a component of or as a basis for any material offered for sale, licence or distribution.
2.4.2 Subscriber undertakes to use reasonable endeavours to ensure that the Service shall not be accessed or used by third parties other than those entitled to do so by virtue of this Agreement.
2.4.3 Subscriber shall use its reasonable endeavours to keep any Data stored (as permitted under this Agreement) secure and to prevent any third party duplicating or otherwise reproducing the same in whole or in part other than for the exercise of the rights granted by this Agreement, and shall use its reasonable endeavours to prevent whether by act or omission such duplication or reproduction except as permitted by the terms of this Agreement.
2.5 Rights in Data
2.5.1 Except for the licence granted in this Agreement, all rights, title and interest in Data, in all languages, formats, adaptations and media throughout the world, including all copyrights, are and will continue to be the property of Supplier, its Affiliates and/or its Licensors.
2.5.2 Crown Copyright material is reproduced with the permission of the Controller of Her Majesty's Stationery Office.
2.5.3 Subscriber shall not do or omit to do or authorise any other person to do or omit to do any act which:
(a) would or might invalidate or be inconsistent with any intellectual property of Supplier, its Affiliates and/or its Licensors; or
(b) would or might be in breach of or otherwise inconsistent with the moral rights of the authors of the Data.
2.5.4 Subscriber shall not delete erase remove deface or cover any trademark, service mark, trade names, numbers, copyright or other proprietary notices, guarantee, designation of origin, means of identification, disclaimer or other statement used in connection with any Data, nor shall Subscriber authorise another person to do so.
2.5.5 Subscriber shall promptly inform Supplier if Subscriber becomes aware of:
(a) any unauthorised use of the Data
(b) any actual, threatened, or suspected infringement of any intellectual property of Supplier, its Affiliates and/or its Licensors in the Data which comes to Subscriber's notice, and
(c) any claim by any third party coming to its notice that the Data infringes the intellectual property or other rights of any other person.
2.5.6 Subscriber shall at the request and expense of Supplier do all such things as may be reasonably required to assist Supplier in taking or resisting proceedings in relation to any infringement or claim referred to in this clause and in maintaining the validity and enforceability of the intellectual property of Supplier, its Affiliates and/or Licensors in the Data.
3. Additional Terms and Conditions
3.1 Certain Third Party Features are governed by Additional Terms.
3.2 Subscriber will be given an opportunity to review Additional Terms by receiving notice of such Additional Terms in writing or online or by such other means as Supplier at Supplier's sole discretion will determine.
3.3 Additional Terms may be modified by Supplier giving notice in writing, online or otherwise of the modification and such modification will be effective immediately on such notification.
3.4 By using features governed by Additional Terms, Subscriber agrees to and will be obligated to comply with all such Additional Terms. 3.5 All Additional Terms will be considered a part of this Agreement.
4. Responsibility for Access
4.1 Subscriber is responsible for notifying Supplier of such persons to whom the Service passwords are to be issued or from whom passwords are to be revoked (“User Details”) or other necessary access details where silent authentication is used (“Access Details”).
4.2 Access to the Service will be given as soon as reasonably practical after provision of the User Details/Access Details (as the case may be) to Supplier.
4.3 Where incomplete and/or inaccurate User Details/Access Details (as the case may be) are provided by Subscriber, Supplier shall not be liable for any delay or failure to set up access to the Service for any or all of the Users. Further the Subscription Period shall begin on the commencement date specified in the relevant Schedule and Subscriber shall not be entitled to any reduction in the Service Charge or an extension of the Subscription Period as a result of any such delayed or limited access to the Service.
4.4 Subscriber is solely responsible for maintaining security of the Service passwords.
4.5 Subscriber is also responsible for all access to and use of the Service including features and software by Subscriber's personnel or Users or by means of Subscriber's equipment or the Service passwords, whether or not Subscriber has knowledge of or authorises such access and use.
5.1 Charges and Modification of Charges
5.1.1 Except in the event of early termination of this Agreement as permitted herein, Subscriber shall pay the Charges for the Service for the whole of the Term as specified in the initial and subsequently agreed Schedules to this Agreement.
5.1.2 The Charges may be modified at any time upon at least 15 days prior notice to Subscriber in writing, online or otherwise.
5.1.3 Charges for Third Party Features may be modified at any time upon at least 15 days prior notice to Subscriber in writing, online or otherwise or as stated in the applicable Additional Terms.
5.2 Extension of Agreement
5.2.1 At the end of each Subscription Period, unless Subscriber has terminated this Agreement in accordance with clause 7.2.3 hereof and where Supplier does not notify Subscriber of an increase in the Service Charges and/or Additional User Fees for the forthcoming Subscription Period, the Agreement shall be extended for another 12 months at the existing rates.
5.2.2 Without prejudice to Clauses 5.1.2 or 5.1.3, where Supplier wishes to increase the proposed Service Charges and/or Additional User Fees for the forthcoming Subscription Period (“Proposed Charges”), Supplier will endeavour to notify Subscriber not less than 1 calendar month before the end of a Subscription Period of the Proposed Charges. Subscriber will be deemed to have agreed to extend the Agreement for the forthcoming Subscription Period and to pay the Proposed Charges for that Subscription Period, either:
(a) after 1 calendar month has elapsed from the date of such notification (“the Objection Deadline”), unless Subscriber has notified Supplier that Subscriber does not accept the Proposed Charges; or
(b) after bona fide discussions as provided for by Clause 5.2.4, have resulted in agreement on the Proposed Charges; whichever is the later, and thereafter these Proposed Charges shall not amount to a Detrimental Amendment for the purposes of clause 7.2.1 hereof.
5.2.3 Where, on expiry of a Subscription Period, the Objection Deadline has not elapsed, Supplier shall have the right to continue supplying the Service on the terms of this Agreement until the Objection Deadline elapses and to bill Subscriber for Charges incurred at the existing rates.
5.2.4 Where, on expiry of a Subscription Period, the Proposed Charges are under active bona fide discussion between the parties, Supplier shall have the right:
(a) whilst, in Supplier’s reasonable opinion, such discussions are proceeding without undue delay, to continue supplying the Service on the terms of this Agreement during that period and to bill Subscriber for Charges incurred at the existing rates;
(b) once agreement has been reached on Proposed Charges, to invoice for the additional amounts due in respect of the period between the start of the Subscription Period and such agreement being reached; and
(c) in the event that such agreement is not reached within a reasonable period, at Supplier’s sole discretion to discontinue the Service forthwith without further liability to Subscriber or any other third party.
5.3 Billing and Payment
5.3.1 Supplier will invoice Subscriber according to the Service Billing Cycle indicated in the Schedule for all the Charges incurred by Subscriber during the relevant period.
5.3.2 All Charges are exclusive of sales, service, value added, and other applicable taxes, if any, which are the responsibility of Subscriber.
5.3.3 All telecoms charges incurredin using the Service are the responsibility of Subscriber.
5.3.4 Subscriber will pay any invoice rendered by Supplier in full within 30 days of receipt.
5.3.5 If full payment is not made, without prejudice to any rights or remedies otherwise available, Supplier reserves
(a) the right to charge interest on the outstanding balance of all overdue sums at the rate of 3% per annum above the current base rate at Barclays Bank, whichever is the greater and
(b) to withdraw access to the Service.
5.4.1 QuickView+, a current usage reporting service is available to Subscriber. To access QuickView+Subscriber must designate in writing the person[s] authorised to view QuickView+.
5.4.2 Actual Charges billed by Supplier may vary from the Service Charges reported on QuickView+. Subscriber agrees to pay the actual Charges as billed.
6. Disclaimer of Warranties and Limitation of Liability
6.1.1 Except as specifically provided in this Agreement, the Service, features and Data are provided “as is” without warranty of any kind, express or implied, including but not limited to warranties of performance, merchantability, fitness for a particular purpose, accuracy, omissions, completeness, currentness and delays.
6.1.2 Supplier warrants to Subscriber that neither the Service, nor the features infringe any industrial or intellectual property rights of any third party and that it holds itself the necessary rights to grant the rights specified in this Agreement and that it has authority to enter into this Agreement with the Subscriber.
6.1.3 Some systems/software may not be capable of supporting the Service and Subscriber acknowledges
(a) that it has made appropriate investigations into the necessary systems/software required to support Subscriber’s use of the Service and
(b) that performance of the Service may vary with equipment and telecommunications links with which it is used.
6.2 Exclusion of liability
6.2.1 Neither Supplier, its Affiliates nor Licensors make any warranty that access to the Service will be uninterrupted, secure, complete or error free and Supplier, its Affiliates nor Licensors shall have no liability in this regard.
6.2.2 Other than in respect of the warranty given in Clause 6.1.2 Supplier shall not be liable in contract or law for any loss of whatsoever kind, caused to the Subscriber, howsoever arising, suffered in connection with the Service.
6.2.3 Supplier shall not be liable in contract or law for any loss of revenue, business, anticipated savings or profits, loss of goodwill or data or for any indirect or consequential loss whatsoever, howsoever arising or suffered in connection with the Service.
6.2.4 Subscriber acknowledges that provision of the Service entails the likelihood of some human and machine errors, delays, interruptions and losses, including the inadvertent loss of data or damage to media and Supplier, its Affiliates nor Licensors shall have no liability in this regard.
6.2.5 Without prejudice to the generality of clauses 6.2.1 to 6.2.4 (both inclusive), in no event shall Supplier, its Affiliates and/or Licensors be liable to Subscriber for any claim(s) relating in any way to
(a) Subscriber's inability or failure to perform legal or other research related work or to perform such legal or other research or related work properly or completely, even if assisted by Supplier, its Affiliates and/or Licensors or any decision made or action taken by Subscriber in reliance on the Data ;
(b) any lost profits (whether direct or indirect) or any consequential exemplary incidental, indirect or special damages relating in whole or in part to Subscribers' rights under this Agreement or use of or inability to use the Service, features, Data or software even if Suppliers, its Affiliates and/or Licensors have been advised of the possibility of such damages; or
(c) the procuring compiling interpreting editing writing reporting or delivering of the Data.
6.2.6 Other than in respect of the warranty given in Clause 6.1.2 Supplier will have no liability whatsoever for any liability of Subscriber to any third party which might arise.
6.2.7 Further Supplier shall have no liability whatsoever to Subscriber for any claims relating in any way to any Third Party Feature
6.2.8 Subscriber shall accept sole responsibility for and Supplier shall not be liable for the use of the Service by Subscriber, or any User and Subscriber shall hold Supplier harmless and fully indemnified against any claims, costs, damages, loss and liabilities arising out of any such use.
6.2.9 Nothing in this Agreement confers or purports to confer on any third party any benefit or any right to enforce any term of this Agreement.
6.3 Limitation of Liability
6.3.1 Other than in respect of the warranty given in Clause 6.1.2, Subscriber's exclusive remedy and Supplier's (its Affiliates' and/or Licensors') entire liability under this Agreement if any, for any claim[s] for damages relating to the Service, features, Data or software made against them individually or jointly whether based in contract or negligence shall be limited to the aggregate amount of the Service Charges paid by Subscriber relative to the specific feature (Database, Service, or otherwise) or the software as applicable, which is the basis of the claim(s) during the 12 month period preceding the event giving rise to such claim.
6.3.3 Except for claims relating to the Service Charges or improper use of the Service, features or software, no party shall have the right to make a claim, regardless of form, which in any way arises out of this Agreement or the use of, or inability to use, the Service, features, or software more than one year after the basis for the claim becomes known to the party desiring to assert it.
7. Term and Termination
7.1 This Agreement will become effective on approval by Supplier in and will continue in force from the First Commencement Date until the end of the Term unless earlier termination takes place in accordance with the provisions below.
7.2 This Agreement may be terminated by:
7.2.1 Subscriber on written notice to Supplier after receiving notice of an amendment (as permitted under this Agreement) which may reasonably be detrimental to Subscriber (“Detrimental Amendment”, which for the avoidance of doubt includes an increase in Service Charges), which termination shall take effect on the date of any such amendment coming into effect (and in case of an increase in Service Charges, on the date when such charges are due); or
7.2.2 either party on written notice to the other if the other commits a material breach of this Agreement (including substantial loss of content or functionality in the Service to Subscriber's detriment and for which no reasonable substitute is provided), provided that where the breach is capable of being remedied then the defaulting party shall have failed to remedy the same within 30 days of receiving notice specifying the breach and requiring its remedy; or
7.2.3 Subscriber on written notice to Supplier of not less than 30 days immediately preceeding expiry of the current Subscription Period.
8. Effect of Agreement
8.1 This Agreement embodies the entire understanding between the parties with respect to the subject matter of the Agreement, and supersedes any and all prior understandings and agreements, oral or written, relating to the subject matter.
8.2 Except as otherwise provided in this Agreement, Supplier may amend the terms and conditions of this Agreement by giving Subscriber at least 15 days prior written or online notice.
8.3 Any other amendment must be in writing and signed by both parties.
9. Force Majeure
9.1 Supplier's performance under this Agreement is subject to interruption and delay due to causes beyond its reasonable control such as acts of God, acts of any Government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, industrial or labour dispute, inability to obtain essential supplies and the like.
10. Notices, Governing Law and General Provisions
10.1 Except as otherwise provided, all notices must be given in writing to Supplier at the address set out at the top of this Agreement and to Subscriber at the address set out in the current Schedule.
10.2 This Agreement and all matters arising out of it shall in all respects be governed by the laws of India.
10.3 Where the Subscriber is a body other than an individual the person signing or otherwise concluding this Agreement represents that s/he is authorised by the Subscriber to sign it for and on behalf of the Subscriber and to bind the Subscriber thereby.
10.4 Nothing in this Agreement shall create or be deemed to create a partnership or the relationship of principal and agent between the parties and the Subscriber shall have no authority to bind or to make any representation or warranty on the Supplier's behalf.
10.5 Neither this Agreement nor any part or portion may be assigned, sublicensed or otherwise transferred by Subscriber without Supplier's prior written consent, save where all or part of Subscriber's Indian business is to be transferred to a limited liability partnership ("LLP"), in which event the LLP shall notify Supplier that the LLP intends to assume all of the obligations owed by Subscriber under this agreement (the “Assumed Obligations”), and on the agreement of Supplier (not unreasonably withheld or delayed) the LLP shall become the Subscriber and shall be responsible for the Assumed Obligations instead of Subscriber and is deemed always to have been responsible for the Assumed Obligations.
10.6 Supplier may without the prior written consent of Subscriber assign any benefit or transfer, delegate or sub-contract any of their duties and obligations under this Agreement to any company which is an Affiliate of Supplier.
10.7 Should any provision of this Agreement be held to be void, invalid, unenforceable or illegal by a court, the validity and enforceability of the other provisions will not be affected thereby.
10.8 Failure of any party to enforce any provision of this Agreement will not constitute or be construed as a waiver of such provision or of the right to enforce such provision.
10.9 The headings and captions contained in this Agreement are inserted for convenience only and do not constitute a part of this Agreement
11. Dispute Resolution
11.1 Any dispute or difference between Supplier and Subscriber arising out of or relating to the existence, validity, interpretation, performance or termination of, or otherwise in connection with this Agreement ("Dispute"), shall at first instance be attempted to be amicably settled between the parties through good faith negotiations. Either party shall be entitled to invoke such negotiations by giving to the other party a notice to that effect ("Dispute Notice"). If a Dispute is not resolved by way of good faith negotiations within a period of thirty (30) days from the date when the Dispute Notice was received by the receiving party then either party shall be entitled to refer the Dispute to arbitration in the manner described below.
11.2 Any Dispute not resolved by way of good faith negotiations within a period of thirty (30) days from the date when the Dispute Notice was received by the receiving party, shall be finally resolved by arbitration in accordance with the provisions of this clause 11.
11.3 The provisions of the Arbitration and Conciliation Act, 1996, as amended ("Arbitration Act"), will apply to such arbitration:
11.4 The arbitration shall be conducted by a single arbitrator who shall be appointed by the mutual consent of both parties. If the parties are not able to reach a decision to appoint the arbitrator within thirty (30) days of the date when the good faith negotiations mentioned above have failed, then the Dispute shall be referred to a panel of three (3) arbitrators. One (1) arbitrator shall be appointed by each party within thirty (30) days of the parties failing to reach an agreement to appoint the sole arbitrator as aforesaid. The two (2) arbitrators so appointed by the parties shall appoint the third presiding arbitrator within thirty (30) days of their appointment, failing which the third presiding arbitrator shall be appointed in accordance with the provisions of the Arbitration Act.
11.5 The arbitration proceedings shall be conducted in English.
11.6 The place of arbitration shall be Bengaluru, Karnataka.
11.7 The award of the arbitrator(s) shall be final and binding on both parties. The arbitrator(s) shall state reasons for its/their findings in writing.
11.8 The costs of arbitration shall be determined by the arbitrator(s).
11.9 In relation to any arbitration proceedings, the parties agree that the courts at Bengaluru, Karnataka shall have exclusive jurisdiction to the extent the court has jurisdiction under the Arbitration Act.
SPECIAL PROVISIONS RELATING TO SPECIFIC CONTENT
12. Not included in Supplier Proprietary Data
12.1 For the avoidance of doubt, the following are hereby stated not to be Supplier-Proprietary Data for the purposes of this Agreement:
(a) The Law Reports, The Weekly Law Reports, The Industrial Cases Reports and any other law reports licensed from the Incorporated Council for Law Reporting of England & Wales;
(b) Session Cases
(c) Lloyds Law Reports.
13. West's Legal Directory and Public Records Database
Use of West's Legal Directory and Public Records Databases is subject to separate terms and conditions which are available from Supplier on request.