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White Label Addendum 091726

White Label Addendum

This Addendum will apply to the extent that Engin8 provides its written consent to Customer that Customer may White-Label certain Services (any such Services, the “Permitted WL Services“), pursuant to an Order accepted by Engin8. Capitalized terms used but not defined herein will have the meanings given to them in the Agreement.

  1. Definitions
    1. “White Labelling” means the act or process by which Customer applies its own branding, trade name, trademarks, or other brand identifiers to Permitted WL Services, and markets, distributes, sublicenses, or otherwise makes such Permitted WL Services that have been rebranded by Customer available to End Users, pursuant to and subject to the terms of this Addendum.
    2. “Branded Materials” means any materials, interfaces, documentation, or communications relating to the Permitted WL Services that bear Customer’s brand identifiers.
    3. “End User” means any third party to whom Customer makes the Permitted WL Services available pursuant to this Addendum.
  2. White Label Authorization
    1. Subject to the terms and conditions of this Addendum and the Agreement, and solely to the extent expressly set forth in a White Label Authorization, Engin8 hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable (except to End Users as permitted herein), revocable right during the Term to:
      1. apply Customer’s brand identifiers to the Permitted WL Services;
      2. present the Permitted WL Services and associated professional services to End Users under Customer’s brand; and
      3. market and distribute access to the Permitted WL Services to End Users in accordance with this Addendum.
    2. White Labelling is permitted only where Engin8 has issued a White Label Authorization to Customer. No right to White Label Engin8’s platform or services will arise by implication, estoppel, or otherwise. Engin8 reserves the right to withhold, condition, or revoke any White Label Authorization in its sole discretion, subject to the notice provisions set out in Section 7 of this Addendum.
  3. Branding and Presentation
    1. Customer will:
      1. apply only brand identifiers for which it holds all necessary rights, licenses, and approvals;
      2. ensure that all Branded Materials are accurate, not misleading, and comply with all applicable laws;
      3. not represent to End Users that Customer is the developer or underlying technology owner of the Permitted WL Services; and
      4. not remove, obscure, or alter any notices required by applicable law to appear on the platform or services, including without limitation copyright or data privacy notices.
    2. Nothing in this Addendum grants Customer any right, title, or interest in or to the Engin8 Marks. Customer will not use the Engin8 Marks in any Branded Materials or in connection with the Permitted WL Services without Engin8’s prior written consent. Where Engin8 consents to attribution, such attribution will be in the form and manner specified by Engin8 in writing.
    3. Engin8 reserves the right, upon reasonable notice to Customer, to review any Branded Materials to confirm compliance with this Addendum. Customer will promptly modify or remove any Branded Materials that Engin8 reasonably determines to be non-compliant, misleading, or damaging to Engin8’s reputation or intellectual property.
  4. End User Relationships
    1. Customer is solely responsible for:
      1. entering into and maintaining legally enforceable end user agreements with each End User that are no less protective of Engin8’s rights and intellectual property than the Agreement;
      2. ensuring that End Users comply with all applicable use restrictions and acceptable use policies;
      3. all acts and omissions of End Users in connection with their use of the Permitted WL Services; and
      4. providing first-line support to End Users, unless otherwise agreed in writing with Engin8.
    2. Customer acknowledges and agrees that Engin8 will have no contractual relationship with, and no obligations or liability to, any End User. Customer will not make any representations to End Users that would purport to create any obligation on the part of Engin8.
    3. Customer is solely responsible for obtaining all necessary consents and providing all required notices to End Users with respect to the collection, processing, and use of personal data in connection with the Permitted WL Services. Customer will comply with all applicable data protection and privacy laws in connection with the Permitted WL Services and its provision to End Users. To the extent personal data of End Users is processed by Engin8 on behalf of Customer, the parties will enter into a data processing agreement as required by applicable law.
  5. Intellectual Property
    1. As between the parties, Engin8 retains all right, title, and interest in and to the Permitted WL Services, the underlying technology, all Engin8 Marks, and all intellectual property rights therein. Customer acquires no ownership interest in any of the foregoing by virtue of this Addendum or any White Label Authorization. Any goodwill generated through Customer’s use of Engin8’s technology inures solely to the benefit of Engin8.
    2. As between the parties, Customer retains all right, title, and interest in and to Customer’s brand identifiers and Branded Materials. Engin8 acquires no ownership interest in Customer’s brand identifiers by virtue of this Addendum.
    3. Customer will not, and will ensure that End Users do not:
      1. reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Permitted WL Services;
      2. modify, adapt, or create derivative works of the Permitted WL Services;
      3. remove or alter any proprietary rights notices embedded in the Permitted WL Services; or
      4. use the Permitted WL Services in any manner that infringes the intellectual property rights of Engin8 or any third party.
    4. The parties’ confidentiality obligations under the Agreement apply in full to all information exchanged in connection with this Addendum, including without limitation the terms of any White Label Authorization, technical specifications of the Permitted WL Services, and any End User data or usage information.
  6. Fees and Reporting
    1. Customer will pay to Engin8 all fees applicable to the White Label Authorization and Permitted WL Services as set out in the applicable Order Form or as otherwise agreed in writing by the parties (“White Label Fees“). White Label Fees are in addition to, and do not replace, any subscription or other fees payable under the Agreement unless expressly stated otherwise in the Order Form.
    2. Unless otherwise specified in the applicable Order Form, Customer will provide Engin8 with written reports, on a monthly basis, detailing:
      1. the number of active End Users accessing the Permitted WL Services during the relevant period;
      2. the jurisdictions in which the Permitted WL Services is being made available; and
      3. any other information reasonably requested by Engin8 for the purposes of verifying compliance with this Addendum and calculating applicable fees.
  7. Term and Termination
    1. This Addendum will commence on the Addendum Effective Date and will continue in force for so long as the Agreement remains in effect, unless earlier terminated in accordance with this Section or the MSA. Each White Label Authorization will have the term specified therein, which will not extend beyond the term of this Addendum.
    2. Either party may terminate this Addendum, or any individual White Label Authorization, upon written notice if the other party materially breaches this Addendum and fails to cure such breach within thirty (30) days after receiving written notice specifying the nature of the breach in reasonable detail.
    3. Engin8 may terminate any White Label Authorization for convenience upon sixty (60) days’ prior written notice to Customer. For the avoidance of doubt, termination of a White Label Authorization under this Section does not terminate the Agreement or this Addendum as a whole.
    4. Upon expiry or termination of this Addendum or any White Label Authorization for any reason:
      1. all rights granted to Customer under such authorization will immediately cease;
      2. Customer will promptly cease presenting the Permitted WL Services under its branding and will remove or disable all End User access to the Permitted WL Services;
      3. Customer will promptly take down or remove all Branded Materials referencing the Permitted WL Services; and
      4. each party will return or destroy the other party’s confidential information in accordance with the Agreement.

      Sections 1, 4–7 (inclusive), and 8 of this Addendum will survive termination or expiry of this Addendum.

  8. General Provisions
    1. In addition to and without limiting Customer’s indemnification obligations under Section 9.1 of the MSA, Customer will indemnify, defend, and hold harmless Engin8 and its affiliates, officers, directors, employees, and agents from and against any claims, losses, damages, liabilities, costs, and expenses (including reasonable legal fees) arising out of or relating to:
      1. Customer’s White Labelling activities;
      2. any claims by End Users arising out of or in connection with the Permitted WL Services or Branded Materials;
      3. Customer’s breach of any end user agreement or applicable law in connection with the Permitted WL Services; or
      4. any infringement of third-party intellectual property rights arising from Customer’s brand identifiers or Branded Materials.
    2. Customer will not make any representations or warranties to End Users on behalf of Engin8, or that are inconsistent with the warranties (if any) set out in the Agreement. Engin8’s warranty obligations, if any, run solely to Customer and not to any End User.
    3. Customer will comply with all applicable laws, regulations, and governmental orders in connection with its White Labelling activities, including without limitation laws relating to advertising, consumer protection, data privacy, and export control.

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