Master Product and Services Agreement
This Master Product and Services Agreement and any Addendums or Exhibits thereto (“Agreement”) is entered by and between Yipit, LLC, a limited liability company organized in the state of Delaware, having its principal place of business at 90 5th Avenue, 11th Floor, New York, NY 10011 and its affiliates (“YipitData”) and the entity identified as Customer on the applicable Business Terms (“Customer”), to provide the terms and conditions under which YipitData will provide its data deliveries (each, and together with any and all data and analysis therein, a “Data Delivery”) ordered by Customer pursuant to one or more YipitData Business Terms (as defined below) that specifies the fees and other details of the Data Delivery to be provided by YipitData.The Agreement is effective as of the last signature date below (“Effective Date”).
1. Entire Agreement; Modification. As used herein, the term “Agreement” shall mean this Master Product and Services Agreement as supplemented by any pricing terms and/or subscription selection terms that are expressly agreed in writing by the parties separately from time to time (email suffices) (the “Business Terms”). If the Agreement conflicts with a term in the Business Terms, the Business Terms control. This document and the Business Terms are the entire agreement of the parties and replace all other understandings or agreements (whether oral or written) regarding the subject matter of this Agreement.
2. Data License. Subject to the terms and conditions of this Agreement, YipitData grants to Customer a non-exclusive, non-transferable, non-sublicensable license with respect to Data Deliveries identified on the Business Terms for its Authorized Users (as defined in Customer’s applicable Business Terms): (a) to make limited copies, excerpts and summaries from the Data Delivery for internal use only, provided that Customer may use non-material extracts from any Data Deliveries or summaries thereof in work product prepared by Customer in materials distributed to Customer's clients and potential clients as long as such use does not imply any endorsement by YipitData of such extracts, summaries or work product or identify YipitData as the source of any such content; and (b) to otherwise use any Data Deliveries solely for lawful, internal purposes, for Customer’s benefit and not for the benefit of any third party, in accordance with therestrictions set forth in this Agreement. Customer must not, except as permitted in clause (a) above, reproduce or distribute any Data Delivery or excerpts of a Data Delivery externally without YipitData’s prior written permission in each instance.
3. Proprietary Rights; Feedback. Customer acknowledges that each Data Delivery, and all intellectual property rights therein and relating thereto, in whole and in part, remainsthe exclusive property of YipitData and/or the YipitData’s third-party data licensors. Nothing in this Agreement shall be interpreted to provide Customer with any rights in the Data Delivery, except as expressly provided herein. Customer agrees that YipitData may freely use and incorporate into its Data Deliveries, services, technologies, and other data products, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer regarding any of the Data Deliveries, without liability or obligation to Customer. Customer also acknowledges and agrees that nothing in this Agreement prevents YipitData from providing Data Deliveries or similar information to other customers of YipitData.
4. Restrictions. Customer shall not have any right and will not permit any third party to sell, offer to sell, license, display, transmit, publish, distribute or otherwise transfer in any manner the Data Delivery, in whole or in part, to a third party. Further, Customer will not, nor permit anyone else to directly or indirectly: (a) publicly disseminate the Data Delivery or any analysis or other derivative work relating to the Data Delivery except with YipitData’s prior written consent in each instance; (b) use the Data Delivery in violation of any applicable law, including any applicable U.S. federal or state securities laws; (c) reverse engineer the Data Delivery or otherwise attempt to reverse engineer or derive the raw data used to create the Data Delivery; (d) interfere with or disrupt the integrity or performance of the Data Delivery or the systems or networks through which YipitData provides the Data Delivery; (e) allow access to the Data Delivery to any individuals except those who (i) have a legitimate business need to access the Data Delivery, and (ii) are contractually bound to keep information in the Data Delivery confidential; (f) incorporate any Data Delivery, in whole or in part, into a third-party or open large language model that may be used for any purpose other than Customer’s internal use; (g) use any Data Delivery, in whole or in part, to train any software or algorithm that may be used by any party other than Customer; or (h) allow access to the Data Delivery to any person or entity that is: (i) included on any list of sanctioned entities maintained by the United Nations, the United States, or the European Union; (ii) owned or controlled by, or acting on behalf of, any such person or entity; or (iii) organized, located or ordinarily resident in any country or territory subject to economic sanctions laws administered or enforced by the United States, the European Union or its member states, the United Nations, or the United Kingdom. Customer also agrees that Authorized Users will use the information provided in the Data Delivery only for purposes and in ways that are consistent with all applicable legal requirements.
5. Privacy.
a. Customer will not attempt, and will not enable or assist any third party to attempt, in any manner, to re-identify any natural person from the Data Delivery or take any actions with respect to the Data Delivery that would make it likely that one could identify a natural person from the Data Delivery. Customer will not attempt to re-identify any previously aggregated, deidentified, pseudonymized, or anonymized data, including but not limited to by combining the Data Delivery with other data. Customer will contractually prohibit downstream data recipients from re-identifying or attempting to re-identify the Data Delivery.
b. Customer acknowledges that with respect to the Data Delivery, YipitData may take commercially reasonable steps to safeguard user privacy and handle personal data in compliance with applicable data protection practices. In particular, and without limitation, YipitData may, at any time and in its sole discretion, redact, suppress or modify certain data fields in any Data Delivery prior to delivery to Customer.
c. If applicable, the terms of this Agreement are subject to the terms of any data privacy addendum (or analogous data protection agreement) (“DPA”) between the parties. If the parties determine after entering into this Agreement that a DPA is required, they will cooperate in good faith to enter into a DPA that complies with applicable law.
6. Security. Each party will use industry standard and, at a minimum, commercially reasonable administrative, technical and physical safeguards to protect the Data Delivery from unauthorized or unlawful disclosure, use, or access that is not permitted under this Agreement (“Security Breach”). If Customer experiences a Security Breach involving systems, technology or data exchanged between the parties hereunder, or becomes aware of any act or omission that materially compromises the security, confidentiality, or integrity of any Data Delivery or any of Customer’s systems where such Data Deliveries are stored or processed, Customer will (a) promptly notify YipitData of the facts and circumstances of the Security Breach, and (b) work with YipitData in good faith to take corrective action to stop and/or mitigate the Security Breach.
7. Data Delivery Subscription. At the start of each Term (as defined in the applicable Business Terms), and any extension or renewal of such Term, YipitData will deliver Business Terms detailing all Data Deliveries subscribed to by Customer at the time of delivery. Customer may approve Business Terms via email (which approval shall have the same force and effect as signature) or via manual electronic signature. Customer can add Data Deliveries to their YipitData Data Delivery subscription (each an “Added Data Delivery”) at any time during the Term by providing YipitData with written notice, including via email (each, an “Added Data Delivery Request”). YipitData will deliver updated Business Terms via email following receipt of an Added Data Delivery Request from Customer confirming such Added Data Delivery has been added to Customer’s YipitData subscription, provided such Added Data Delivery can be delivered by YipitData to Customer under this Agreement and the applicable Business Terms. For the avoidance of doubt, if there is any conflict between Business Terms, the Business Terms most recently received by Customer will control. Customer understands that the mix and content of specific Data Deliveries may vary, and the availability of any specific Data Delivery at any given time is not guaranteed.
8. YipitData Portal. To the extent Customer is accessing one or more Data Deliveries via YipitData’s Portal (the “YipitData Portal”), the terms of use for the YipitData Portal at https://portal.yipitdata.com/ (the “YipitData Portal Terms”) shall be incorporated herein by reference.To the extent there is an inconsistency between a term in the YipitData Portal Terms and a term in the Agreement, the YipitData Portal Terms shall govern.
9. Payment Terms. Customer will pay all fees and charges pursuant to the Business Terms (“Fees”). Unless otherwise provided in the applicable Business Terms, Fees for each Data Delivery are due in advance on a yearly basis. Except as otherwise provided in this Agreement or any Business Terms, all Fees are quoted and payable in United States dollars and are non-cancelable and non-refundable. Past due accounts are subject to suspension by YipitData and may be levied a finance charge of the lesser of (a) 1.5% per month or (b) the maximum permitted by applicable law. Customer will promptly reimburse YipitData for all costs and expenses attributable to any collection effort. Customer is responsible for all taxes and surcharges imposed on the Data Deliveries and services provided pursuant to this Agreement, excluding taxes based on YipitData's income. Promptly upon termination of this Agreement and/or the Business Terms, Customer will pay in full any balance due on Customer’s account.
10. Confidentiality. This Section 10 applies to information in any medium disclosed by either party that by its nature, the receiving party should know is confidential, whether or not it is marked as such, including, without limitation, the terms and existence of this Agreement, YipitData’s provision of Data Deliveries to Customer and Customer’s receipt of Data Deliveries from YipitData; business or technical information (including methods, strategies, and processes); and trade secrets. Each party will treat the other party’s confidential information as confidential, protecting it from unauthorized use or disclosure by exercising at least the same degree of care such party uses to protect its own similar information but in no event less than a reasonable degree of care. Customer will require its Authorized Users and any downstream recipients of any Data Delivery to protect and keep confidential YipitData’s confidential information in the same manner. YipitData’s and Customer’s obligations do not apply to any information that: (1) is in the public domain at the time of its communication other than as a result of a disclosure in breach of the terms of this Agreement; (2) is independently developed without use of (or reference to) the confidential information; or (3) is in either party’s possession free of any obligation of confidence when disclosed by the other party. In addition, this provision does not prohibit either party from disclosing the other party’s confidential information (a) in response to a court order or otherwise as required by law, provided that, if legally permissible, such party (i) first provides the other party with reasonable prior notice, (ii) furnishes only that portion of the confidential information which it is legally required to disclose, (iii) gives the other party prompt written notice of the confidential information it believes it is required to disclose and (iv) seeks, or provides the other party with an opportunity to seek, a protective order or other reliable assurance that confidential treatment will be accorded to the confidential information legally required to be disclosed; (b) for purposes of consultation with its attorneys and financial advisors, provided such attorneys and financial advisors are informed of the confidential nature of the information and are directed by the applicable party to adhere to, and agree to abide by, the confidentiality terms of this Agreement; and (c) to enforce its rights in court. For the avoidance of doubt, YipitData and Customer agree that neither party owes any type of fiduciary duty to the other party.
11. Data Accuracy. Customer acknowledges that YipitData compiles, categorizes, and generates the Data Delivery using a variety of methods, using variable inputs, such that the Data Delivery is continually evolving. Data points, quality, format, and coverage may vary, as determined in YipitData's sole discretion, during the term of this Agreement. Any use or reliance upon the Data Delivery is at Customer’s own risk. Customer understands that YipitData does not verify the completeness, accuracy, or authenticity of the Data Delivery.
12. Investments. Customer acknowledges and agrees that the information, methodologies and data that comprise the Data Deliveries are provided for informational purposes only and (1) do not constitute investment advice; (2) cannot be interpreted as an offer or indication to buy or sell securities, to select a project or make any kind of business transactions; (3) do not represent an assessment of the economic performance, financial obligations or creditworthiness of any issuer of securities; and (4) are not a substitute for professional advice. Customer further acknowledges and understands that past performance is no guarantee of future results. Customer agrees not to use any Data Deliveries, in whole or in part, or any data contained therein, as the basis of any investment-making decision.
13. Representations and Warranties; Indemnification.
a. General. Each party represents, warrants and covenants that: (i) it has all requisite legal and corporate power and authority to perform its obligations under this Agreement; (ii) it has taken all corporate action necessary for the authorization, execution and delivery of this Agreement; (iii) it has obtained and shall maintain all rights, approvals, licenses, certifications, accreditations and consents necessary to perform its obligations under this Agreement; and (iv) it has complied and will comply with all applicable laws governing bribery, money laundering, and other corrupt practices, including the US Foreign Corrupt Practices Act and the UK Bribery Act.
b. Customer Representations and Warranties. Customer further represents and warrants that: (i) it and its Authorized Users will not disclose any information to YipitData in violation of any applicable law or regulation, including confidential or material non-public information with respect to any company or entity, (ii) it and its Authorized Users will use the information provided in the Data Deliveries only for purposes and in ways that are consistent with all applicable legal requirements, and (iii) it will at all times maintain policies and procedures reasonably designed to comply with each of the foregoing and the other use restrictions set forth in this Agreement.
c. Data Deliveries. YipitData further represents, warrants and covenants that: (i) to the extent that YipitData engages in “scraping”, “spidering” “crawling” or similar practices, including using automated systems and/or software, to extract data, any such extraction of data is in compliance with all applicable laws; (ii) the Data Deliveries and the use, disclosure and/or resale of the Data Deliveries to Customer will comply with all applicable laws and regulations and does not violate any duty, covenant or obligation owed by YipitData to any third-party; (iii) it will use commercially reasonable efforts to ensure any Data Deliveries delivered to Customer do not contain any “personal information” or “personal data,” as defined in applicable law, provided that the Data Deliveries may contain pseudonymized personal data; (iv) the Data Deliveries do not and will not contain any material non-public information within the meaning of the United States federal securities laws; (v) there are no approvals from any governmental agency or authority having jurisdiction over YipitData which are required for the execution, delivery and performance by YipitData of this Agreement and the transactions contemplated hereby; and (vi) to its knowledge, there is no material violation, conflict or infringement by any person or entity of any right of Customer with respect to the Data Deliveries described herein.
d. Indemnity. (i) YipitData shall indemnify, defend and hold harmless Customer from and against any third-party claim, action, suit, demand, judgment, settlement, loss, fine, cost or expense (including reasonable attorneys’ fees and expenses) (each, a “Claim”) alleging that Customer’s use of the Data Deliveries in accordance with this Agreement violates or infringes the intellectual property rights of a third party, and (ii) Customer shall indemnify, defend and hold harmless YipitData from and against any Claim arising out of Customer’s misuse of the Data Deliveries in breach of this Agreement.
e. Indemnity Procedures. The party seeking indemnification shall: (x) provide the indemnifying party with prompt written notice of any such Claim, (y) reasonably cooperate with the indemnifying party, at the indemnifying party’s expense, and (z) give the indemnifying party sole control over the defense and/or settlement of any such Claim, provided that the indemnifying party shall not settle a Claim that results in an admission of wrongdoing or any liability to the indemnified party without the indemnified party’s consent.
14. Disclaimer of Warranty. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, YIPITDATA DOES NOT WARRANT THAT ANY PRODUCT, SERVICE OR DATA DELIVERY PROVIDED PURSUANT TO THIS AGREEMENT WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE DATA DELIVERIES (OR ANY PART THEREOF). ALL DATA DELIVERIES PROVIDED BY YIPITDATA TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND YIPITDATA DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE DATA DELIVERIES (OR ANY PART THEREOF) CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER. YIPITDATA MAKES NO WARRANTIES UNDER THESE TERMS WITH RESPECT TO ANY THIRD-PARTY SOFTWARE, HARDWARE OR OTHER PRODUCTS USED BY CUSTOMER IN CONNECTION WITH THE DATA DELIVERIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED HEREIN, YIPITDATA DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO ANY PRODUCT,SERVICE OR DATA DELIVERIES PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY OF DATA, OR ANY IMPLIED WARRANTY ARISING FROM THE COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
15. Limitation of Liability.
a. Liability Limit. EXCEPT IN CONNECTION WITH A PARTY’S BREACH OF SECTION 10 (CONFIDENTIALITY) OR IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 13 (D), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF EACH PARTY IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING UNDER TORT, CONTRACT, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO YIPITDATA PURSUANT TO THE BUSINESS TERMS OUT OF WHICH THE LIABILITY ARISES, DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THE AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.
b. No Consequential Damages. EXCEPT IN CONNECTION WITH A PARTY’S BREACH OF SECTION 10 (CONFIDENTIALITY) OR IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13 (D) OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE, WHETHER UNDER TORT LAW, CONTRACT LAW, OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
16. Insurance. During the Term, YipitData shall maintain and carry at least the following types and amounts of insurance coverage:
a. Commercial General Liability (CGL), including personal and advertising injury, with limits of no less than $1,000,000.00 per occurrence and $2,000,000 in the aggregate;
b. Errors and Omissions Liability, including cyber liability, with limits of no less than $5,000,000; and
c. Umbrella Liability coverage with limits of no less than $5,000,000 per occurrence in excess of the limits provided by the policies above.
All insurance policies required under this Section shall be issued by insurance companies with a Best’s Rating of no less than A. Upon Customer’s written request, YipitData shall provide Customer with copies of certificates of insurance for all insurance coverage required by this Section. Nothing in this Section is intended to waive, restrict or limit the liability of either Party under this Agreement.
17. Term and Termination.
a. By Either Party. Each Business Terms will remain in effect as provided therein. Either party may terminate any Business Terms and this Agreement, at any time upon thirty (30) days’ prior written notice for material breach, including failure to pay amounts owed, in which event such termination shall take effect unless cured during such thirty (30) day period.
b. By YipitData. YipitData may terminate any specific Data Delivery and/or the applicable Business Terms at any time upon fifteen (15) days written notice to Customer if (a) YipitData becomes unable to provide the Data Delivery to Customer due to events beyond its reasonable control; or (b) YipitData ceases delivery of the data comprising the Data Delivery to its customers generally.
c. Refund. In the event of termination by Customer under Section 17(a) for material breach, or by YipitData under Section 17(b), YipitData shall refund Customer, on a pro-rated basis, any unused portion of any fees pre-paid by Customer with respect to the remainder of the applicable Term.
d. Survival. The following Sections, together with any other provision of this Agreement (including the Business Terms) which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Proprietary Rights in Products; Feedback), Section 4 (Restrictions), Section 9 (Payment Terms), Section 10 (Confidentiality), Section 13 (Representations and Warranties; Indemnification), Section 13 (Disclaimer of Warranty),Section 15 (Limitation of Liability), Section 17(d) (Survival); Section 19 (Governing Law; Venue), Section 21 (Notices), and Section 22 (Miscellaneous).
18. Publicity. Customer grants YipitData permission to use Customer’s company name and logo on YipitData’s website and other marketing materials identifying Customer as one of YipitData’s customers. YipitData acknowledges that it has no interest in Customer’s name or logo other than the rights granted under this Agreement and that Customer will remain the sole owner of interest in its name and logo.
19. Governing Law; Venue. This Agreement is governed by the laws of the State of New York, not including its conflict of law principles. Neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement. Any claims in connection with this Agreement will be subject to the exclusive jurisdiction of the state and federal courts in the Borough of Manhattan, New York; each party irrevocably submits to the personal jurisdiction and venue of, and agrees to service of process issued or authorized by, any such court in any such action or proceeding.
20. Force Majeure. The Data Deliveries, and YipitData’s ability to provide the Data Deliveries, may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. YipitData is not responsible for any delays, delivery failures, or other damage resulting from such problems or for any other event outside the reasonable control of YipitData, including without limitation acts of God, acts of third parties, government regulations, shortage of supplies, pandemics, act of war, act of terrorism, earthquake, flood, wind damage, or electrical, internet or telecommunications outage.
21. Notices. Notices under this Agreement must be in writing and will be considered given when delivered personally, or by e-mail (with confirmation of receipt) or by courier or by conventional mail (registered or certified, postage prepaid with return receipt requested). Notices must be addressed to the parties at the addresses specified in the then-most recent Business Terms, but each party may change its address by written notice in accordance with this paragraph.
22. Miscellaneous. Nothing in this Agreement shall be construed as constituting a partnership, joint venture, agency or employment relation between the parties, and neither party shall have any right whatsoever to incur any liability or obligation on behalf of the other party. Neither party may assign this Agreement or any rights or obligations under this Agreement without the prior written consent of the other party, except to any purchaser of all or substantially all of the assets or the majority of the stock of the assigning party. Headings in this Agreement are for convenient reference only and have no effect in limiting or extending the language of the Agreement. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary to be enforceable. This Agreement will otherwise remain in full force and effect. This Agreement may be amended, or compliance with any term or condition may be waived, only if agreed to in executed writing by the parties (except with respect to modifications pursuant to Section 7 of this Agreement), or in the case of a waiver, by the party waiving compliance. Any modifications to this Agreement pursuant to Section 7 are deemed binding and enforceable. No waiver by any party of any provision of this Agreement will be deemed a waiver of any other provision or a waiver of the same provision at any prior or subsequent time.
Updated August 2023
