Terms and Conditions
The Licensor is engaged in the business of providing access to Software and Licensor's application server. The Licensee desires to retain the Licensor to perform the services provided for in this agreement.
The Licensor and Licensee agree as follows:
1. GRANT OF LICENSE
Subject to the terms and conditions herein, Licensor hereby grants Licensee a nonexclusive license to (i) access and execute SmartFeed, Product Feed Manager (the "Software") on Licensor's application server over the Internet, and (ii) transmit data related to Licensee's use of the Software over the Internet.
2. USE AND ACCESS
A. Subject to the restrictions on use as set forth herein, Licensee will have access to the Software and Licensor's application server for the purpose of using the software for its intended purpose and in accordance with the specifications set forth in any documentation relating to the Software provided by Licensor. Such use and access will be continuous on a 24/7 basis except for interruptions by reason of maintenance or downtime beyond Licensor's reasonable control as specified in section 6.
B. Licensee will use the Software only for its internal business operations and will not permit the Software to be used by or for the benefit of anyone other than Licensee. Licensee will not have the right to re-license or sell rights to access and/or use the Licensed Software or to transfer or assign rights to access or use the Software, except as expressly provided herein. Licensee may not modify, translate, reverse engineer, decompile or create derivative works based upon the Software. Licensee agrees to use the Software in a manner that complies with all applicable laws including intellectual property and copyright laws. Licensor expressly reserves all rights not expressly granted to Licensee herein.
C. Licensee will not: (i) transmit or share identification or password codes to persons other than authorized users (ii) permit the identification or password codes to be cached in proxy servers and accessed by individuals who are not authorized users, or (iii) permit access to the software through a single identification or password code being made available to multiple users on a network.
D. Licensor will provide the necessary storage space on the application server for Licensee to use for storage of data necessary for use of the Software.
E. Access is enabled via user name and password
3. PRICE AND PAYMENT
A. Licensee will pay Licensor the fees listed below for the license of the Software and access to Licensor's application server.
B. The fees for the license of the Software do not include taxes. If Licensor is required to pay or collect any federal, state, local, or value-added tax on any fees charged under this Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on Licensor's net income, then such taxes and/or duties will be billed to and paid by Licensee immediately upon receipt of Licensor's invoice and supporting documentation for the taxes or duties charged.
C. Listed fees of $50 per month with no contract term with unlimited Sku's. Service will be on a month to month basis. There will be a 30 day trial period that precedes the regular monthly fee. Cancellation must be in writing (via email) prior to the close of the initial 30-day period to avoid any monthly fees.
D. Setup Fee: There are no fees to set up any Comparison Shopping Engines on any of the SmartFeed account packages. There is a $100 setup fee PER DISTRIBUTOR, paid at the time of adding a distributor when using DISTRIBUTOR MANAGEMENT (part of the gold package). There may be setup fees incurred for setting up Marketplaces. This is evaluated on a case by case basis.
E. Monthly Fees: Fees will be denoted by the package chosen. The silver package is $69.95 a month, the Gold package is $129.95 a month. Distributor Management is only included with the Gold package. Amazon Management is an add-on for either package at $50 a month. Sears Management is an add-on for either package at $50 a month. Discounts may apply for multiple plugins.
E. This license agreement grants online access to one (1) authorized website or shopping cart. An "Authorized website" means is a collection of Web pages, images, videos and other digital assets that that hosted on the same Web server using the same domain name or IP address that is accessible via the internet using e-commerce as a means to conduct business through these pages. These pages are grouped as one when assigning one and only one shopping cart or online means of payment. Duplicate monthly and setup fees will incur where any licensee uses this software for multiple websites, domain names, IP addresses or shopping carts.
4. TECHNICAL SUPPORT
Technical support is available for the term of the contract via email and though the SmartFeed Support Center.
5. TERM AND TERMINATION
A. The initial term of this Agreement will commence immediately after payment has been received and processed, which will not be until such time as licensee has full access to the SmartFeed service. The web site interface for the Software will be accessible via the Internet, (within a commercially reasonable time after payment is received) and will be on a month to month basis
B. Licensee may terminate this agreement without penalty, provided at least Thirty days (30) written notice has been given.
C. The duration of the license will remain in effect while the Subscriber maintains a current paid subscription to the Software. This License will terminate:
a. Subject to (B.) and (C.) above, if the subscription lapses (termination is effective at the end of the paid subscription period).
b. Following thirty (30) days' prior written notice that any term or condition of this License is violated for any reason, knowingly or unknowingly, provided that violation is not remedied with all reasonable haste upon notification. The foregoing notwithstanding, SmartFeed reserves the right to suspend access to the service immediately upon detecting a breach of this License. SmartFeed will use reasonable efforts to notify the Subscriber
6. Failure of Performance
Following online access approval, the Subscriber will be permitted to attempt online access to Product Feed Manager at any time. SmartFeed, however, will not be liable for any delay, downtime, transmission error, software or equipment incompatibilities, force majeure or other failure of performance attributed to common hosting and server platforms. SmartFeed will use commercially reasonable efforts to correct any material performance problem brought to its attention and may suspend performance pending such correction. If SmartFeed is unable to restore service in a commercially reasonable time, the licensee has the option to cancel service without penalty or additional cost.
7. Ownership of Intellectual Property
Title to any proprietary rights in the Software or Licensor's web site will remain in and be the sole and exclusive property of Licensor. Licensee will be the owner of all content created and posted by Licensee. Consent to Jurisdiction; Waiver of Immunities.
(a) The Licensor hereby irrevocably submits to the jurisdiction of any New York State or Federal court sitting in New York in any action or proceeding arising out of or relating to this document, and the Licensee hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such New York State or Federal court. The Licensee irrevocably consents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to the Licensee at its address specified at the beginning of this agreement. The Licensee agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
(a) Nothing in this Section shall affect the right of the Licensor to serve legal process in any other manner permitted by law or affect the right of the Licensor to bring any action or proceeding against the Licensee or its property in the courts of any other jurisdictions.
(b) To the extent that the Licensee has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, the Licensee hereby irrevocably waives such immunity in respect of its obligations under this Document.
A. Licensee acknowledges that the Software and other data on Licensor's application server embodies logic, design and coding methodology that constitute valuable confidential information that is proprietary to Licensor. Licensee will safeguard the right to access the Software and other software installed on Licensor's application server using the same standard of care that Licensee uses for its own confidential materials.
B. All data pertaining to Licensee disclosed to Licensor in connection with the performance of this Agreement and residing on Licensor's application server will be held as confidential by Licensor and will not, without the prior written consent of Licensee, be disclosed or be used for any purposes other than the performance of this Agreement. Licensor will safeguard the confidentiality of such data using the same standard of care that Licensor uses for its own confidential materials. This obligation does not apply to data that: (i) is or becomes, through no act or failure to act on the part of Licensor, generally known or available; (ii) is known by Licensor at the time of receiving such information as evidenced by its written records; (iii) is hereafter furnished to Licensor by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by Licensor as evidenced by its written and dated records and without any breach of this Agreement; or (v) is the subject of a written permission to disclose provided by Licensee. Further notwithstanding the forgoing, disclosure of data will not be precluded if such disclosure: (i) is in response to a valid order of a court or other governmental body of the United States; (ii) is otherwise required by law; or (iii) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.
9. WARRANTY AND DISCLAIMER
Licensor warrants the Software is developed and will be provided in conformity with generally prevailing industry standards. Licensee must report any material deficiencies in the Software to Licensor in writing within thirty (30) days of Licensee's discovery of the defect. Licensor's exclusive remedy for the breach of the above warranty will be for Licensor to provide access to replacement Software within a commercially reasonable time. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. DEVELOPER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES
10. LIMITATION OF LIABIILTY, Indemnification
Neither party will be liable to the other for special, indirect or consequential damages incurred or suffered by the other arising as a result of or related to the use of the Software, whether in contract, tort or otherwise, even if the other has been advised of the
possibility of such loss or damages. Licensee will indemnify and hold Licensor harmless against any claims incurred by Licensor arising out of or in conjunction with Licensee's breach of this Agreement, as well as all reasonable costs, expenses and attorneys' fees incurred therein. Licensor's total liability under this Agreement with respect to the Software, regardless of cause or theory of recovery, will not exceed the total amount of fees paid by Licensee to Licensor during the six month period immediately preceding the occurrence or act or omission giving rise to the claim. Each party (the Indemnifying Party) shall indemnify, defend and hold harmless the other party and such other party's officers, directors, employees and agents (each, an Indemnified Party) from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys' fees) incurred by an Indemnified Party in any third party action arising as a result of a breech by the indemnifying party of the terms of this agreement.
11. RELATION OF PARTIES
Nothing in this Agreement will create or imply an agency relationship between the parties, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party, and such consent will not be unreasonably withheld. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.
Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the State of New York. The arbitration will be held in New York. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.
14. ATTORNEYS' FEES
If any litigation or arbitration is necessary to enforce the terms of this Agreement, each party will be responsible for their own attorneys' fees and costs.
If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
16. FORCE MAJEURE
Neither party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party's reasonable control as stated in Section 6.
17. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all prior agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein.
Select Account Level:See Account Features and Details here
Silver (8 Predefined Feeds, 20K Maximum Products, $69.95 a month) (FIRST MONTH FREE!)
Gold (40+ Feeds, 100K Maximum Products, $129.95 a month)
Platinum (All Feeds, All Marketplaces, Unlimited Products, $229.95 a month)
Add Distributor Management (Gold Only):
Add Amazon Management:
Yes (Add $50.00 a month)
Yes (Add $30.00 a month)
Add Sears Management:
Yes (Add $50.00 a month)
Yes (Add $30.00 a month)
Add Jet Management:
Yes (Add $30.00 a month)
Yes (Add $10.00 a month)
Add Walmart Management:
Yes (Add $50.00 a month)
Split Product Options:
Yes (Add $100.00 setup fee, option splitting, if existing, will be required for Amazon listing parent / child relationships)
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