This Subscription Agreement (the Agreement) by and between Feedonomics, LLC (Feedonomics), a California Limited Liability Company, and Subscriber includes the terms and definitions set out below. Subscriber and Feedonomics are herein referred to individually as a Party and collectively as the Parties.
Feedonomics is the master licensor of Technology which aggregates data across multiple sources and creates a data file (the Data Service) which Feedonomics makes available to its customers for the customer’s internal business purposes. The Subscription Fee incorporated in this Agreement, is subject to change and all subscription fees are non-cancelable and non-refundable, except as otherwise expressly set forth herein.
Data Service Subject to the terms and conditions of this Agreement, Feedonomics hereby grants to Subscriber a limited, nonexclusive, royalty-free, non-transferable right to use the Data Service solely for its internal business purposes. Subscriber shall not (i) provide access to the Data Service to unauthorized third parties, (ii) publicly publish, copy (except for internal use), duplicate or replicate the Data Service, (iii) scrape any data, content or intellectual property, or otherwise trespass or interfere with Feedonomics’ Data Service or systems; or (iv) sublicense, distribute or transfer the Data Service or underlying data except as otherwise expressly permitted herein.
Availability of the Data Service Feedonomics shall use commercially reasonable efforts to provide the Data Service to Subscriber on an ongoing basis. However, there will be occasions when the Data Service may be interrupted for maintenance, upgrades and repairs, or as a result of failure of telecommunications links and equipment that are beyond Feedonomics's control. Feedonomics shall take reasonable steps to minimize such disruption, to the extent it is within Feedonomics's reasonable control. Under no circumstances shall Feedonomics be liable to Subscriber for any interruptions, outages, or other system failures that are beyond Feedonomics's control. Subscriber acknowledges and agrees that Feedonomics obtains the data for the Data Service from third parties, and that such sources may become temporarily or permanently unavailable. If such unavailability materially affects Feedonomics's ability to provide the Data Service in whole or in part for more than ten consecutive days, Subscriber shall be entitled to terminate this Agreement upon written notice to Feedonomics and receive a pro rata refund of the last subscription fee paid.
Feedonomics or its licensor(s) shall retain all rights, title and interest in and to The Data Service and any data, files, or other information provided or used by Feedonomics in the provision of the Data Service. Neither Party shall have any right to use the other Party's trademarks, logos, service marks or other indicia of origin, except as otherwise provided in this Agreement. No rights other than those expressly recited herein are to be implied from this Agreement.
Feedonomics owns the rights to the data service, which is the underlying technology and platform receiving Subscriber’s data from multiple sources. Subscriber’s data is optimized to create feed files which are provided to the various shopping engines. The file created is the property of the Subscriber and placed in the Subscriber’s merchant center. The most recently optimized file is always the property of the Subscriber.
Definition. Confidential Information shall mean and include all of the confidential and proprietary information and all other information, not in the public domain, that relates to the Data Service. All information disclosed or revealed by a Party hereunder orally, electronically, in writing or in any other tangible form, shall be deemed to be Confidential Information if (i) it has been marked confidential; (ii) the other Party has been placed on notice, orally or in writing, of its confidential nature; or (iii) due to its character or nature, a reasonable person under similar circumstances would treat such information as confidential.
Protection of Confidential Information. The receiving Party will protect the disclosing Party's Confidential Information from unauthorized dissemination and use with the same degree of care that such receiving Party uses to protect its own non-public and confidential information, but in no event less than a commercially reasonable degree of care. The receiving Party will not use the disclosing Party's Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. The receiving Party will not disclose to third parties the disclosing Party's Confidential Information without prior written consent of the disclosing Party.
Non-Confidential Information. Information shall not be considered Confidential Information to the extent, but only to the extent, that the receiving Party can document that such information (i) is or becomes generally known or available to the public through no fault of the receiving Party, (ii) was in the receiving Party's possession before receipt from the disclosing Party under this Agreement or any prior agreement or understanding between or among the Parties, or (iii) is lawfully obtained from a third party who has the right to make such disclosure.
Disclosure of Confidential Information. These provisions shall not prevent the receiving Party from disclosing Confidential Information where it is required to do so by law or by a binding court order save that, to the extent legally permissible, it shall notify the disclosing Party of such disclosure and allow the disclosing Party a reasonable opportunity to object to such disclosure.
Restrictions in Use. Subscriber may not, and may not permit other to:
reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from Feedonomics;
cause a third party to analyze, decompile or reverse engineer any proprietary code or Information for any purpose.
modify, translate, adapt, alter, or create derivative works from the Data Service and underlying code;
copy, distribute, publicly display, transmit, sell, rent, lease or otherwise exploit the Feedonomics Technology platform; or
distribute, sublicense, rent, lease, loan [or grant any third party access to or use of] the Software to any third party.
remove, alter or obscure any proprietary notice that appears or on any copies made in accordance with this Agreement.
publish or disclose the results of any benchmarking of the underlying Feedonomics technology, or use such results for any other software development activities.
use the Licensed Data Service for the purposes of competing with the licensor, including without limitation competitive intelligence.
use the Data Service or the underlying functionality for any purpose other those specified by Feedonomics.
use the Data Service, or allow the transfer, transmission, export or re-export of all or any part of the platform or any product thereof, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction.
use the Data Service in a manner that violates any applicable local, state, national or international law or governmental regulation, policy procedure or ordinance, or any rights of a third party.
use the Data Service if this license has been terminated by licensor;
WARRANTIES and LIMITATION OF LIABILITY
Warranties. Each Party represents and warrants to the other Party that (i) it has the legal right and power to enter into this Agreement; (ii) the performance of such obligations will not violate or conflict with any agreements, contracts or other arrangements to which it is a party; and (iii) the execution of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and any other consents required to be obtained by it have been obtained.
Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE DATA SERVICE IS PROVIDED ON AN AS IS AND AS AVAILABLE BASIS FROM FEEDONOMICS. ANY INFORMATION OBTAINED THROUGH THE USE OF THE DATA SERVICE IS DONE AT SUBSCRIBER'S OWN RISK AND SUBSCRIBER WILL BE SOLELY RESPONSIBLE FOR DAMAGE TO SUBSCRIBER'S COMPUTER SYSTEM, NETWORK, DATA OR BUSINESS THAT RESULTS FROM SUCH ACTIVITY.
No Warranties Regarding Data Service. FEEDONOMICS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH REGARDS TO THE INFORMATION PROVIDED THROUGH THE DATA SERVICE AND TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, FEEDONOMICS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NONINFRINGMENT. SUBSCRIBER ASSUMES THE ENTIRE RISK OF SELECTION AND USE OF INFORMATION PROVIDED THROUGH THE DATA SERVICE. WITHOUT LIMITING THE FOREGOING, FEEDONOMICS MAKES NO WARRANTY THAT (i) THE INFORMATION OFFERED THROUGH THE DATA SERVICE WILL MEET SUBSCRIBER'S REQUIREMENTS OR EXPECTATIONS; (ii) THE DATA SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, COMPLETE OR ERROR-FREE; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE DATA SERVICE WILL BE ACCURATE OR RELIABLE.
No Warranty Regarding Advice or Information. NO ADVICE OR INFORMATION OBTAINED BY SUBSCRIBER FROM FEEDONOMICS SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
Limitation of Liability. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL A PARTY'S LIABILITY TO THE OTHER EXCEED THE AGGREGATE AMOUNT OF FEES PAID TO FEEDONOMICS UNDER THIS AGREEMENT BY THIS SUBSCRIBER.
TERM and TERMINATION
Term. Provided that Subscriber has fulfilled its obligations hereunder, including making all payments and updates, this Agreement shall commence as of the date of this Agreement (the Effective Date), and continue until the agreed upon termination date and automatically renew in accordance with Addendum A, unless otherwise terminated in accordance with this Section. Feedonomics warrants that their technology does not infringe any third party intellectual property rights, that Subscriber owns all right title and interest in its intellectual property rights, and that upon termination of the Agreement, both parties will cease to use the other parties intellectual property.
Termination for Cause or No Cause. Either Party shall have the right to terminate this Agreement upon 30 days written notice to email@example.com.
Effect of Termination. The terms of this Agreement will survive termination for as long as necessary to permit their full discharge, excluding the License Grants which will terminate immediately. Upon the termination of this Agreement for any reason, (i) Subscriber shall immediately cease use of the Data Service; (ii) each Party shall, as promptly as is reasonably possible, return all Confidential Information of the other Party in its possession or control, including any copies thereof; and (iii) all rights and obligations of the Parties under this Agreement shall cease; provided, however, that termination of this Agreement shall not relieve the Parties of any obligations that accrued prior to the effective date of termination.
Good Faith Negotiation. Any matters arising in connection with this Agreement which are not expressly addressed herein, and all disputes, controversies, or claims which may arise between the Parties relating to or in connection with the performance of this Agreement or any breach thereof, shall be separately negotiated by the Parties in good faith and all reasonable efforts undertaken to settle amicably such matters before resorting to further legal recourse.
Dispute Resolution Procedure. Upon the occurrence of a dispute between the Parties, including, without limitation, any breach of this Agreement or any obligation relating thereto, the matter shall be referred to the chief executive officers of each Party, or their designees. The chief executive officers, or their designees, as the case may be, shall negotiate in good faith to resolve such dispute in a mutually satisfactory manner for up to 30 additional days, or such longer period of time to which the chief executive officers or their designees may agree. In the event that good faith negotiation fails to resolve the matter, such matter shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration panel shall consist of one disinterested third party appointed by the American Arbitration Association and agreed to by Feedonomics. The forum to conduct the arbitrations will be in Los Angeles County, California. The judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The award of the arbitrator shall be final, non-appealable and binding upon the Parties hereto and their respective successors and permitted assigns.
By Subscriber. Subscriber will, at its expense, defend, indemnify and hold Feedonomics harmless from and against any damage, liability, cost or expense (including reasonable attorneys' fees and court costs) arising out of or resulting from any claim, suit or other proceeding (each a Claim and, collectively, the Claims) arising in any way from Subscriber's use of the Data Service or breach of this Agreement.
Indemnification Procedure. In the event of any Claim in respect of which Feedonomics intends to claim indemnification, Feedonomics will: (i) promptly notify Subscriber, in writing, of the claim, suit or proceeding; (ii) grant Subscriber the authority and control of the defense or settlement of such Claim; and (iii) provide Subscriber with all requested reasonable information and assistance, at Subscriber's expense, to defend or settle such Claim. Feedonomics reserves the right to retain counsel, at its own expense, to participate in the defense and settlement of such Claim.
Governing Law and Venue. This Agreement will be governed and construed solely in accordance with the laws of the State of California without giving effect to principles of conflict of laws. Both Parties agree to submit to exclusive jurisdiction in California and further agree that any cause of action arising under this Agreement shall be brought solely in a court in Los Angeles County, California.
Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The Parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. The waiver by either Party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
Captions. Titles or captions of articles and paragraphs contained in this Agreement are inserted only as a matter of convenience and for reference, and in no way define, limit, extend, or describe the scope of this Agreement or the intent of any provision hereof.
Assignment. Neither this Agreement nor any of the rights or obligations of a Party arising under this Agreement may be assigned or transferred without the prior written consent of the other Party, which consent shall not be unreasonably conditioned, delayed or withheld; provided that Feedonomics may assign this Agreement in whole, but not in part, in connection with a merger, consolidation, reorganization or the sale of all or substantially all its assets or stock or that of its parent company.
Independent Contractors. The Parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither Party shall have the power to obligate or bind the other Party.
Notice. Any notice required or permitted under this Agreement or required by law must be in writing and must be (i) delivered in person; (ii) sent by first class registered mail, or air mail, as appropriate; or (iii) sent by a reputable overnight courier, in each case properly posted and fully prepaid to such other address of such Party as may be designated in writing. Notices shall be considered to have been given at the time of actual delivery.
Force Majeure. Feedonomics shall not be liable for any failure to perform under this Agreement, including, without limitation providing access to the Data Service, caused by any events beyond its, or its data providers, reasonable control including, without limitation, acts of war, disasters, acts of God, terrorism, labor interruption, interruption of communications, interruption of utilities or disease.
Entire Agreement. This Agreement, together with any separate written order form, (if applicable), sets forth the entire understanding and agreement of the Parties and supersedes any and all oral or written agreements or understandings between the Parties as to the subject matter of this Agreement. It may be changed only by a writing signed by both Parties. Neither Party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.