1. Services. During the Term (as set forth in Customer’s Service Agreement), subject to and conditioned on Customer’s payment of fees set forth in Customer’s Service Agreement, Service Provider grants Customer a non-exclusive, non-transferable right to access and use the website product data selected by Customer in accordance with terms and conditions herein and additional services provided by the Service Provider (the “Services”) as set out in one or more statements of work to be issued by Service Provider and accepted by Customer (each, a “Statement of Work”). Unless the Statement of Work specifically states otherwise, the total number of Customer’s websites that may use the Services will not exceed one, and such Customer’s website(s) shall be specifically identified in the Statement of Work.
1.1 Customer represents and warrants it owns or possesses adequate rights or licenses to utilize the data in the manner utilized from a vendor. Customer acknowledges that Service Provider is offering a tool to simplify data management but is not selling data and does not claim to have any right to disburse data from any vendor to Customer.
1.2 Customer is solely responsible for the accuracy of all content it uses, displays or publishes, including pricing, and understanding its pricing structures whether such pricing structure is through a buying group(s) or otherwise that Customer is a party to, which may include pricing discounts, rebates, refunds, and freight costs;
1.3 Customer is responsible for all activity and content such as photographs, images, videos, graphics, written content, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited by Customer on its website (“Material”), regardless of whether Service Provider provided, generated, or modified any such Material as part of the Services for Customer’s use;
1.4 Material may be transferred over various networks and devices, some of which may be unencrypted;
1.5 Service Provider may change, modify, and adapt Material for technical requirements required to provide the Services; and
1.7 Notwithstanding anything to the contrary in this Agreement, Service Provider may monitor Customer’s use of the Services and collect and compile data and information related to Customer’s use for the Services that is used by Service Provider in an aggregate manner, including to compile statistical and performance information related to the provision of the Services (“Aggregated Statistics”). As between Service Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Service Provider and are Service Provider’s IP (as defined in Paragraph 1.8 (below)). Customer acknowledges that Service Provider may compile Aggregated Statistics based on customer data input into the Services. Customer agrees that Service Provider may (a) make Aggregated Statistics publicly available in compliance with applicable law, and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
1.8 As used herein Service Provider IP means the Services, and any and all intellectual property provided to Customer (or Customer Contract Manager) in connection with the foregoing. For avoidance of doubt, Service Provider IP includes Aggregated Statistics, Feedback, and any information, data or other content derived from Service Provider’s monitoring of Customer’s access to or use of the Services.
1.9 Service Provider reserves all rights not expressly granted to Customer in this Agreement.
1.10 Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Service Provider IP.
2. Confidentiality. From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within five (5) days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Paragraph 2; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would use to protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s attorney, accountant, financial advisor, or similar affiliate professional, who needs to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.
2.1 Service Provider may immediately suspend Customer’s access to any portion or all of the Services if:
(a) Service Provider reasonably determines that: (i) there is a threat or attack on any of the Service Provider IP; (ii) Customer’s use of the Services or Service Provider IP disrupts or poses a security risk to the Service Provider IP or to any other customer or vendor of Service Provider; (iii) Customer is using the Service Provider IP for fraudulent or illegal activities, including copyright infringement; (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or
(b) Service Provider’s provision of the Services to Customer is prohibited by applicable law; or
(c) any vendor of Service Provider has suspended or terminated Service Provider’s access to or use of any third-party services or products required to enable Customer to access the Services.
2.2 SERVICE PROVIDER MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN PARAGRAPH 2.1, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED, INCLUDING THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. CUSTOMER AGREES THE USE OF THE SERVICES IS AT ITS OWN RISK, ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY.
2.3 TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA, MATERIAL, GOODWILL, OR DIMINUTION IN VALUE, OR FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.