TRADESWELL SUBSCRIPTION SERVICES AGREEMENT
Your (“Customer”) use of the Tradeswell, Inc. (“Vendor”) analytics, automation and advertising optimization services available through its proprietary platform (the “Platform”) (the “Services”) is subject to the terms and conditions set forth in this Subscription Service Agreement (this “Agreement”).
Each of Vendor and Customer may be referred to as a “Party” herein and together as the “Parties.”
1. Provision of the Service.
1.1 Provision Generally. Subject to the terms of this Agreement, Vendor shall provide the Services (as further described in a proposal(s) (each, a “Proposal”)), during the Term of this Agreement in accordance with the terms and conditions of this Agreement.
1.2 Grant of Rights. Subject to the terms and conditions of this Agreement, Vendor hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right for Customer’s Users to access and use the Service (including, for clarity, any output thereof), solely for Customer’s internal business purposes during the Term within the Territory set forth in a Proposal(s). A “User” shall mean an employee of Customer or an independent contractor designated by Customer and agreed to in writing by Vendor. The total number of Users will not exceed the number of Users set forth in an Proposal(s), except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Monthly Fees payable hereunder. Customer is also bound by any further restrictions set forth in a Proposal(s) hereto. All rights not expressly granted to Customer are reserved by Vendor and its licensors. There are no implied rights.
Customer acknowledges and agrees that as between Vendor and Customer, all right, title and interest in and to the Services, Platform, software and functionality (including the data, information, text, images, designs, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content composing or made available through the Service (excluding all Customer Data and Intellectual Property (as defined in Section 5, below)) (the “Vendor Technology”) and all improvements and derivatives of the foregoing (including all intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain owned by Vendor or its licensors, and this Agreement in no way conveys any right, title or interest in the Service or the Vendor Technology other than a limited right to use the Service in accordance with the terms and conditions herein. No right or license is granted hereunder to Customer under any trademarks, service marks, trade names or logos. Customer shall not remove any Vendor trademark, service mark or logo, or any proprietary notices or labels (including any copyright or trademark notices) from the Service.
3. Fees; Payments; Taxes.
3.1 Fees. Following the Trial Period (as defined below), in consideration of the provision of the Service hereunder, Customer shall pay Vendor the fees set forth on a Proposal(s), or if no fees are set forth in the Proposal, the fees set forth on the Vendor’s website (the “Fee”). In the event Customer’s order volume (i.e. units sold) (“Order Volume”) exceeds the monthly average order volume maximum (the “Order Volume Maximum”) Customer’s plan set forth in the Proposal(s) (the “Plan”) for one (1) month during the Term, Vendor will monitor Customer’s Order Volume. If the Order Volume exceeds the Order Volume Maximum for Customer’s Plan for a second one (1) month period, whether or not consecutive, Vendor reserves the right to, upon written notice to Customer, automatically upgrade Customer to the next tier of plan offered by Vendor, in accordance with the rates set forth on Vendor’s website or as otherwise communicated to Customer by Vendor (if the pricing information for the relevant tier of plan is not included on Vendor’s website , Vendor will provide such pricing information to Customer in writing prior to such upgrade). Customer may request in writing Vendor’s pricing for Vendor’s plans at any time. Vendor shall have no obligation to provide Customer with a new Proposal once Customer’s Plan is upgraded. Except as otherwise set forth on a Proposal, all Fees due hereunder shall be due and payable within thirty (30) days of invoice date. With respect to Fees based on budgets or estimates for campaigns run by Vendor, Customer acknowledges and agrees that actual Fees charged within ten percent (10%) of budget or estimated spend shall be payable in full by Customer and that Vendor shall not be responsible for any overages within the ten percent (10%) margin. Customer shall provide Vendor with complete and accurate billing and contact information, including a valid email address for receipt of invoices. Except as specifically set forth to the contrary in a Proposal(s), all payments obligations are non-cancelable and non-refundable. Customer shall make all payments hereunder by wire transfer, in US dollars, to the account specified in writing by Vendor, and without deduction of any charges, taxes or other amounts. All Fees due hereunder or under any Proposal shall be calculated based on Vendor’s measurements and reporting, which shall be final and binding on Customer. On receipt of invoice, Customer shall have fifteen (15) days to query or dispute such invoice, after which time the invoice shall be deemed to be accepted by Customer and no further query or dispute may be raised by Customer. Customer shall pay the undisputed fees when due.
3.2 Sequential Liability. Further, Vendor is authorized to act as Customer’s agent (but is not obligated to do so) in connection with the purchase of media, data and related services. Without limiting the foregoing, in connection with such purchases, Vendor shall operate under the principle of sequential liability where Vendor will be held liable for payments to such vendors and other suppliers only to the extent Vendor has been paid by Customer (and such payments have fully cleared to Vendor) for such purchases. For amounts owing but not paid and cleared to Vendor, Customer agrees that it will be held solely responsible for such payments. Notwithstanding any other payment provisions herein, Customer recognizes that Vendor will not be required to advance monies and accordingly Customer understands that accelerated payment terms may be necessary to ensure Vendor has adequate funding to pay media suppliers.
3.3 Taxes All amounts due hereunder are exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with this Agreement, the Service, or Customer’s and its Users access to the Service. Customer shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on Vendor’s income), which may be invoiced by Vendor from time-to-time.
3.4 Late Payments. If Customer fails to make any payment when due then, in addition to all other remedies that may be available: (a) Customer shall pay interest on all late payments at the lesser of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly, and (b) if such failure continues for five (5) days following written notice thereof, Vendor may suspend performance of the Service until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer. Customer shall reimburse Vendor for all costs and expenses, including attorneys’ fees, incurred in collecting any unpaid amounts owed by Customer hereunder.
4. Term; Termination.
4.1 Term. If specified at sign-up, Customer is entitled to a thirty (30) day free trial for use of the Services (the “Trial Period”). Following the Trial Period, the term of this Agreement shall commence on the effective date set forth in the Proposal and, unless earlier terminated as set forth herein, shall continue on an automatically renewing basis for the period of time Customer selected at sign-up, which is either twelve (12) months thereafter or one (1) month thereafter (the “Initial Term”). The Agreement shall thereafter automatically renew for additional successive periods of twelve (12) months or one (1) month, as applicable (each, a “Renewal Term”) unless either Party provides the other Party written notice of its desire to terminate prior to the expiration of the then-current term. The Initial Term and any Renewal Terms may be collectively referred to as the “Term” herein.
4.2 Termination for Breach. Either Party may terminate this Agreement by written notice thereof to the other Party, if the other Party materially breaches this Agreement and does not cure such breach within thirty (30) days after written notice thereof.
4.3 Effects of Termination; Survival. Upon any termination of this Agreement: (a) all rights granted to Customer hereunder shall terminate and Vendor shall no longer provide access to the Service to Customer, and (b) Customer shall cease and cause its Users to cease using the Service and destroy, and permanently erase from all Customer systems, the Service and related documentation, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials. The terms of Sections 2, 3, 4.3, and 5 – 10 shall survive any termination or expiration of this Agreement. In addition, all accrued rights and responsibilities of a party shall survive termination or expiration of this Agreement.
5. Customer Data and Intellectual Property.
5.1 All data, intellectual property, information, and other materials which the Customer, including any User, inputs into the Service or otherwise provides to Vendor, including trademarked and copyrighted intellectual property materials (the “Customer Data and Intellectual Property”) will not be used by Vendor except as permitted herein. Subject to Section 6.3, Customer hereby grants to Vendor (including its agents and contractors) a royalty-free, perpetual license to use the Customer Data and Intellectual Property as follows: (i) as may be necessary or useful in order for Vendor to provide the Services and to perform its obligations under this Agreement; (ii) for auditing/accounting purposes or as may be required by law; (iii) to measure and improve it products and services; and (iv) in aggregate form for its own purposes and to provide services to its clients. Customer shall be solely responsible for providing, updating, uploading and maintaining the currency of all Customer Data and Intellectual Property. The content of Customer Data and Intellectual Property is Customer’s sole responsibility.
5.2 Additional Customer Responsibilities. Customer is solely responsible for and shall retain ownership of all Customer Data and Intellectual Property. Vendor is not responsible for and does not guarantee the accuracy or quality of Customer Data and Intellectual Property uploaded by Customer or on its behalf. Customer shall not: (a) upload or otherwise make available to Vendor any Customer Data and Intellectual Property that is unlawful or that violates the rights of any third parties; (b) upload or otherwise make available to Vendor any Customer Data and Intellectual Property that Customer does not have a right to transmit due to any law, rule, regulation or other obligation; (c) use, upload or otherwise transmit any Customer Data and Intellectual Property that infringes any intellectual property or other proprietary rights of any third party; (d) upload or otherwise make available to Vendor any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, limit the functionality of any computer software or hardware or telecommunications equipment; (e) interfere with or disrupt the Service or servers or networks connected to the Service; (f) upload or otherwise make available to Vendor any Customer Data and Intellectual Property that constitutes protected health information subject to the Health Insurance Portability and Accountability Act or any regulation, rule or standards issued thereunder; or (g) violate any applicable law, rule or regulation, including those regarding the export of technical data. Customer shall be responsible for all acts or omissions of its Users and other parties authorized to use the Platform through Customer or this Agreement. For clarity, and notwithstanding anything to the contrary herein, only Customer’s Users are authorized to use the Services unless otherwise expressly agreed in writing by Vendor.
6. Representations and Warranties; Disclaimer.
6.1 Mutual Representations and Warranties. Each Party represents and warrants to the other party that it has full right and power to enter into and perform this Agreement.
6.3 Vendor Warranty. Vendor hereby warrants to Customer that it shall use commercially reasonable efforts to provide the Services in a competent and professional manner. Vendor makes no warranty regarding features, services, or data provided by any third parties. Notwithstanding anything to the contrary herein, Vendor further represents and warrants to Customer that, to the extent that it processes or accesses Personal Data under this Agreement, that (i) it will process or otherwise use Personal Data solely for the purposes of providing the Services or as otherwise described in this Agreement; (ii) it will not sell, retain, use or disclose Personal Data for any other purposes; (iii) subject to Customer’s obligations under Section 6.2, it will comply with its obligations under applicable Data Protection Laws when processing Personal Data under this Agreement; and (iv) it will reasonably cooperate with Customer in connection with the request of any individual to exercise any of such individual’s rights under applicable Data Protection Laws. For the avoidance of doubt, it is the intention of the parties that Vendor shall be deemed Customer’s “Service Provider” for purposes of CCPA.
6.4 Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 6.1-6.3 ABOVE, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THIS AGREEMENT (IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE), INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
7. Limitations of Liability.
7.1 Limitation of Liability. NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, (A) VENDOR SHALL NOT BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, COST OF COVER, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, and (B) IN NO EVENT SHALL VENDOR’S AGGREGATE LIABILITY UNDER THIS AGREEMENT (INCLUDING ANY TRIAL PERIOD) EXCEED THE FEES ACTUALLY PAID BY CUSTOMER THAT ARE RETAINED BY VENDOR DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD.
8.1 Vendor Indemnification. Vendor agrees to indemnify, defend and hold harmless Customer and its directors, officers, agents and employees and its and their respective successors, heirs and assigns against all liability, loss and costs (including reasonable attorneys’ fees and court costs) in connection with a claim asserted by a third party: (i) alleging that the Services directly infringe, misappropriate or violate the copyright, patent, or trademark rights of any third party or (ii) arising from the gross negligence or willful misconduct of Vendor in performing the Services.
8.2 Customer Indemnification. Customer agrees to indemnify, defend and hold harmless Vendor and its directors, officers, agents and employees and its and their respective successors, heirs and assigns against all liability, loss and costs (including reasonable attorneys’ fees and court costs) in connection with a claim asserted by a third party (i) alleging any fact that, if true, would constitute a breach by Customer of any term of this Agreement; (ii) relating to the Customer Data and Intellectual Property, including any claims alleging that the Customer Data and Intellectual Property or any other content provided by or through Customer infringes, misappropriates or violates the intellectual property rights or other rights of any third party, including any right to privacy, or violates any applicable laws, rules, regulations or self-regulatory guidelines; or (iii) arising from the gross negligence or willful misconduct of Customer.
9.1 Definition. “Confidential Information” means information that is disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) hereunder during the Term that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, except that “Confidential Information” shall not include any information that (a) is or becomes generally known to the public through no fault of, or breach of this Agreement by, the Receiving Party; (b) is rightfully in the Receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (d) is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure. In addition, (i) the terms and conditions of this Agreement shall be deemed to be Confidential Information of both Parties; (ii) the Service and Vendor Technology shall be deemed Confidential Information of Vendor, regardless of whether or not they are labeled or identified or would reasonably be considered confidential; and (iii) any “Cost of Goods” or “COG” data provided by Customer shall be deemed Confidential Information of Customer.
9.2 General Obligations. Each Party agrees that it will during the Term and thereafter (a) not disclose the other Party’s Confidential Information to any third party (other than in order to provide the Services or as permitted hereunder); (b) use the other Party’s Confidential Information only to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement; (c) disclose the other Party’s Confidential Information only to those of its employees and independent contractors who reasonably need to know such information for purposes of this Agreement and who are bound by confidentiality obligations offering substantially similar protection to those in this Section 9; and (d) protect all Confidential Information of the other Party from unauthorized use, access, or disclosure in the same manner as it protects its own confidential information of a similar nature, and in no event with less than reasonable care. Notwithstanding the above, this paragraph shall not prohibit: (i) a Party from disclosing Confidential Information of the other Party to the extent required by applicable law, rule or regulation (including subpoena, a court order or other government order); provided that such Party provides the other Party prior written notice of such disclosure, to the extent practicable, and reasonably cooperates with efforts of the other Party to seek confidential treatment thereof, to the extent such cooperation is requested by the other Party; or (ii) a Party from disclosing the terms and conditions of this Agreement to its attorneys and financial advisors, or current or potential lenders, other sources of financing, investors or acquirors; provided that such third parties are bound by confidentiality obligations offering substantially similar protection to those in this Section 9 (provided further that such third parties are only permitted to use such information for the purpose of advising, lending or providing financing to, or investing in or acquiring, such Party, as applicable).
9.3 Feedback. Notwithstanding the above or anything to the contrary herein, to the extent that Customer at any time provides Vendor with any feedback or suggestions regarding the Service, including potential improvements or changes thereto (collectively, “Feedback”), the Feedback shall not be considered Confidential Information of Customer, and Vendor shall be free to use, disclose, and otherwise exploit in any manner, the Feedback for any purpose.
10.1 Compliance with Laws. Each Party shall comply with all laws, rules, regulations and ordinances applicable to its content, data and activities hereunder.
10.3 Assignment. Customer and Vendor may not assign this Agreement, or assign any of its rights under this Agreement, without the prior written consent of the other party. Notwithstanding the foregoing, such consent shall not be needed for either Party to assign this Agreement in connection with a merger or sale of all or substantially all of its assets or stock (a “Transaction”), provided that (i) the assigning Party provides the other Party with prior written notice of such assignment; and (ii) any assignment by Customer to a competitor of Vendor in connection with a Transaction shall be subject to Vendor’s prior written consent. Any purported assignment in violation of this paragraph is null and void. This Agreement will bind and inure to the benefit of each Party’s successor and permitted assigns.
10.4 Entire Agreement; Amendment. This Agreement (including any Proposal(s)) contains the complete understanding and agreement of the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto. No pre-printed terms on any purchase order, invoice or similar document issued in relation to this Agreement shall have any effect on the Parties or this Agreement. This Agreement may be amended or modified only by an express written agreement signed by duly authorized representatives of both Parties.
10.5 Notices. Unless otherwise specifically provided herein, all notices required or permitted by this Agreement shall be in writing and may be delivered personally, or may be sent by overnight delivery or certified mail, return receipt requested, to the address set forth below for Vendor and at the address set forth in the Proposal(s) for Customer, unless the Parties are subsequently notified of any change of address in accordance with this Section. Any notice shall be deemed to have been received as follows:
(a) by personal delivery, upon receipt; (b) by guaranteed overnight delivery, one business day after transmission or dispatch; or (c) by certified mail, as evidenced by the return receipt.
Vendor: 3600 O’Donnell St. Baltimore, MD 21224 Suite 400
10.6 Force Majeure. Vendor shall not be liable or responsible for, nor be considered to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any provision of this Agreement to the extent such failure or delay is caused by or results from any act, circumstance or other cause beyond the reasonable control of Vendor, including acts of God, flood, fire, earthquake, explosion, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to Vendor’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable technology or components, telecommunication breakdown, or power outage.
10.7 Choice of Law; Arbitration. This Agreement is and will be governed by and construed under the laws of the Maryland without giving effect to any conflicts of laws provision thereof or of any other jurisdiction that would produce a contrary result. The Parties hereby consent to the jurisdiction of any federal or state court located in Maryland for any claim or other proceeding related to this Agreement or their activities hereunder, and waive any objections of improper venue or inconvenient forum. Notwithstanding the foregoing or any other provision to the contrary, the Parties agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association (the “AAA”) in Maryland, in accordance with the AAA’s Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be before a single arbitrator selected pursuant to the AAA Commercial Arbitration Rules unless the amount in dispute exceeds One Million Dollars, in which case three arbitrators shall preside, with each Party selecting one arbitrator, after which the two selected arbitrators shall select the third. All controversies and/or claims submitted to arbitration shall be governed by and construed in accordance with the laws of the State of Maryland. By operation of this provision, the Parties agree to forego litigation over such disputes in any court of competent jurisdiction. Unless otherwise required by law, all aspects of the arbitration shall be kept confidential by the parties except as necessary to arbitrate the dispute and carry out any resulting ruling or judgment.
10.8 Audit Rights. Vendor or its nominee (including its accountants and auditors) may, in Vendor’s discretion upon request to Customer with reasonable advance notice, inspect and audit Customer’s use of the Service, payment of the Fee, and compliance with the Agreement in connection therewith, including without limitation by inspecting Customer’s facilities, books, and records, at any time during the Term and for two (2) years following the termination or earlier expiration of this Agreement.
10.9 Relationship of the Parties; Publicity. The relationship between the Parties is that of independent contractors. Except as set forth in Section 3, nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise or employment relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. Vendor shall have the right to use Customer’s name and logo on client lists published on Vendor’s website and in marketing materials for the Term. Vendor and Customer may mutually agree to announce the relationship hereunder in a press release provided that Vendor and Customer mutually approve of the release.
10.10 Waiver; Severability. No waiver by either Party of any of the provision of this Agreement is effective unless explicitly set forth in writing and signed by such Party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction.