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.
The Parties agree that this Agreement is subject to change and all subscription fees are non-cancelable and non-refundable, except as otherwise expressly set forth herein.
1. LICENSE GRANTS
(a) Feedonomics is a platform which aggregates data across multiple sources and creates a data file (the “Data Service”) which Feedonomics licenses to subscribers for their internal business purposes. Subject to the terms and conditions of this Agreement, Feedonomics hereby grants to Subscriber a limited, nonexclusive, royalty-free, non-transferable revocable right to use the Data Service solely for its internal business purposes.
(b) 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, repairs or as may be necessary to protect the Data Service, Feedonomics, or third parties, or as a result of factors beyond Feedonomics' control (e.g., telecommunications, data supply and/or equipment failure or disruption). Feedonomics shall take reasonable steps to minimize such disruption, to the extent it is within Feedonomics' reasonable control. Under no circumstances, however, shall Feedonomics be liable to Subscriber for any such interruptions, outages, or other system failures. If such unavailability materially affects Feedonomics’ ability to provide the Data Service in whole or in part for more than ten (10) 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.
(c) 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 or create derivative works from the Data Service, (iii) scrape any data, content or intellectual property, or otherwise trespass or interfere with Feedonomics’ Data Service or systems; (iv) sublicense, distribute or transfer the Data Service or underlying data except as otherwise expressly permitted herein; (v) reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from Feedonomics; (vi) remove, alter or obscure any proprietary notice that appears on any documents made in accordance with this Agreement; (vii) use Data Service for the purposes of competing with Feedonomics or its licensors; (viii) 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; or (ix) authorize a third-party to do any of the above.
2. SUBSCRIPTION FEES
In exchange for the Data Service and/or the licenses granted in the Agreement, Subscriber agrees to pay the Subscription Fees set forth in Addendum A. Subscription Fees are subject to change upon thirty (30) days prior written notice and are non-cancelable and non-refundable, except as otherwise expressly set forth herein. If Feedonomics does not receive full payment for Subscription Fees by the due date, it may disable Subscriber’s access to the Feedonomics Platform and/or all Services without liability to Feedonomics. Any late payments shall bear interest at 1½% per month, or the maximum rate permitted by law, whichever is less, from the original due date until Feedonomics receives payment in full. Subscriber shall pay all costs of collection (including reasonable attorney’s fees) that Feedonomics incurred.
3. IP RIGHTS AND CONFIDENTIALITY
(a) 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 acknowledges that the underlying structure, sequence, organization and source code of the Data Service are valuable trade secrets of Feedonomics.
(b) 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 or other export channels. The most recently optimized file is always the property of the Subscriber. Feedonomics, however, retains the right to use this data on an aggregate basis for internal purposes.
(c) The term Confidential Information shall mean and include all information disclosed or revealed by a Party hereunder orally, electronically, in writing or in any other tangible form 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 (including any information relating to the Data Service not in the public domain). 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. 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. 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.
4. WARRANTIES and LIMITATION OF LIABILITY
(a) 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 or violate any applicable law (including applicable data privacy laws); 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.
(b) Subscriber further warrants that it has all necessary authority to share data with Feedonomics for use and processing within the United States pursuant to the terms of this Agreement.
(c) 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.
(d) 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.
(e) NO ADVICE OR INFORMATION OBTAINED BY SUBSCRIBER FROM FEEDONOMICS SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(f) 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.
5. INDEMNITY
(a) 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 third-party 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.
(b) Feedonomics will, at its expense, defend, indemnify and hold Subscriber harmless from and against any Claims arising in any way from (i) any Claims that the Data Services infringe upon the rights of any third party, (ii) any willful misconduct of Feedonomics, (iii) any confidentiality or data security breach, and (iv) any violation of law. Nothwithstanding the foregoing, in cases involving intellectual property claims relating to the Data Service, Feedonomics may, at its sole discretion and own cost and expense, either: (a) procure the right for Subscriber to continue to license the Feedonomics Platform, (b) modify the Feedonomics Platform in such a way that the use thereof does not infringe on the rights of third parties, or (c) terminate this Agreement by notice to Subscriber and refund any Fees paid in advance for the license to use the Feedonomics Platform remaining (on a pro-rata basis) after the termination date. Feedonomics shall have no liability or obligation with respect to any infringement claim if the infringement is caused by: (i) a modification made by Subscriber to an item, software, or Service supplied by Feedonomics or a modification made by Feedonomics at Subscriber’s request, (ii) use of the Feedonomics Platform in an application or environment other than as intended under this Agreement, (iii) Subscriber’s unauthorized use of the Feedonomics Platform, (iv) Feedonomics acting in accordance with Subscriber’s specifications or guidelines, or (v) the combination, operation or use of the Feedonomics Platform with other third party product(s) not supplied by Feedonomics. The remedies stated in this Section are the SOLE AND EXCLUSIVE remedies of Subscriber for the infringement of third party Intellectual Property rights by Feedonomics.
(c) In the event of any Claim in respect of which a party intends to claim indemnification, the indemnified party will: (i) promptly notify the other party, in writing, of the claim, suit or proceeding; (ii) grant the other party the authority and control of the defense or settlement of such Claim; and (iii) provide the other party with all requested reasonable information and assistance, at the other party’s expense, to defend or settle such Claim. The Indemnifying Party shall have sole and exclusive control over the defense and settlement of any such claim, provided that Indemnifying Party (i) must use counsel acceptable to the Indemnified Party (which consent shall not be unreasonably withheld) and (ii) may not enter into any settlement that adversely affects the Indemnified Party’s rights or interests without such party’s prior written consent. The indemnified party reserves the right to retain counsel, at its own expense, to participate in the defense and settlement of such Claim.
6. TERM and TERMINATION
(a) 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.
(b) Either Party shall have the right to terminate this Agreement with or without cause in accordance with Addendum A.
(c) 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 (except for any archival copies retained by counsel); 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.
7. DISPUTE RESOLUTION
(a) 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.
(b) 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. If 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 (AAA).
(c) The arbitration panel shall consist of one disinterested third party appointed by the AAA who shall be knowledgeable in the subject area in which the dispute arises and agreed to by Feedonomics. The forum to conduct the arbitrations will be in Los Angeles, California. Each party shall be entitled to representation by counsel, to appear and present written and oral evidence and argument and to cross-examine witnesses presented by the other party, provided that, where appropriate, the arbitrator may receive testimony via telephone, video or other electronic means of communication. The arbitration award shall be in writing and the arbitrator shall provide written reasons for the award. The award of the arbitrator shall be final and binding on the parties hereto (and their respective successors and permitted assigns) and may be enforced in any court of competent jurisdiction. The prevailing party in any action or proceeding to enforce its rights hereunder shall be entitled to recover reasonable attorneys’ fees and other reasonable costs, including fees of the arbitrator and the AAA, incurred in the action or proceedings. In no event shall the arbiter award punitive or exemplary damages. The parties waive any right they may have to an appeal of the arbitrator’s decision and/or award. Each party retains the right to seek judicial assistance: (i) to compel arbitration, (ii) to obtain interim measures of protection prior to or pending arbitration, (iii) to seek injunctive relief in the courts of any jurisdiction as may be necessary and appropriate to protect the unauthorized disclosure of its proprietary or confidential information; (iv) for any claims of infringement or misappropriation of intellectual property or trade secrets; and (v) to enforce any decision of the arbitrator, including the final award.
8. GENERAL PROVISIONS
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) Any notice required or permitted under this Agreement must be in writing and must be sent via (i) an overnight delivery service or (ii) via email, facsimile or postal mail (“Notice Channels”) so long as confirmation is also sent using a separate Notice Channel (e.g, a notice sent via email must have a confirmation sent via facsimile or postal mail). Notice shall be considered to have been given on the date it was sent.
For purposes hereof, notice to Feedonomics may be sent to:
21011 Warner Center Lane, Suite A
Woodland Hills, CA 91367
accounting@feedonomics.com
Facsimile: (818) 334-2692
Notice to subscriber may be sent to the addresses provided in Addendum A.
(g) 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.
(h) This Agreement, together with any separate written order form, (if applicable) and Addendums thereto, 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 that expressly references this Agreement. Neither Party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.