This Master Product and Services Agreement (“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 22 W 19th Street, 7th Floor, New York, NY 10011 (“YipitData”) and the entity identified as Customer below (“Customer”), to provide the terms and conditions under which YipitData will provide its written data reports (each a “Data Product”) ordered by Customer pursuant to one or more YipitData order schedules that specifies the fees and other details of the Data Product to be provided by YipitData (each an “Order Schedule”).
1. Entire Agreement; Modification. This Agreement consists of this document and all Order Schedule(s) to which the parties may agree in writing from time to time. If this document conflicts with any Order Schedule, this Agreement controls unless the Order Schedule expressly states that its term supersedes the conflicting term of this Agreement, in which case the Order Schedule term controls solely with respect to the Data Product purchased pursuant to such Order Schedule. This Agreement is the entire agreement of the parties, and replaces 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 license with respect to Data Products identified on the Order Schedule(s) for its Authorized Users (defined in Customer’s applicable Order Schedule): (a) to make limited copies and excerpts from the Data Products for internal presentations and reports to be shared internally only with Authorized Users; and (b) to use the Data Products solely for lawful, internal purposes for the benefit of Authorized Users and not for the benefit of a third party. Authorized Users must not reproduce or distribute Data Products or excerpts of Data Products externally without YipitData’s prior written permission.
3. Proprietary Rights; Restrictions. Customer acknowledges that each Data Product, in whole or in part, remains at all times the property of YipitData and/or the third party data owners from whom YipitData acquired the data, and Customer has no rights whatsoever in the Data Product, except as expressly provided in this Agreement. YipitData reserves to itself all rights, including intellectual property rights, in and to the Data Products not expressly granted to Customer under this Agreement. Without limiting the foregoing, neither Customer nor its Authorized Users have any right to sell, license, display, transmit, publish or distribute in any manner the Data Product, in whole or in part, or any data contained therein, to a third party; thus, neither Customer nor its Authorized Users will provide the Data Product, in whole or in part, or any data contained therein, to any third party, use the Data Product, in whole or in part, or any data contained therein, to build a database for resale or for access by a third party, or provide the Data Product to a third party that will resell the data or any portion thereof. Further, neither Customer nor its Authorized Users will permit anyone else to: (a) publicly disseminate Data Product analysis relating to the Data Product except with YipitData’s prior written consent; (b) use the Data Product in violation of any applicable law; or (c) interfere with or disrupt the integrity or performance of the Data Product or the systems or networks through which YipitData provides the Data Product. Customer and its Authorized Users agree that YipitData may freely use and incorporate into its products, services, technologies, and other data products, without liability or obligation to Customer or its Authorized Users, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or its Authorized Users regarding any of the Data Products, including suggestions regarding the data to collect, the method to collect and analyze data, the data research and analysis to provide, and the format of data reports. Customer and its Authorized Users also acknowledge and agree that nothing in this Agreement prevents YipitData from providing Data Products or similar information to other customers of YipitData, and that YipitData may: (1) choose to disclose a Data Product’s publication date to one or more Authorized User(s), and/or other customers of YipitData or third parties, but not to all Authorized Users(s), other customers or third parties (including potentially the Authorized User(s), as defined in this Agreement), and (2) provide certain Authorized User(s) access to YipitData’s analysts via telephone or email communication, without providing such access to all Authorized Users(s) (including potentially the Authorized Users as defined in this Agreement). For the avoidance of doubt, YipitData is not obligated to provide such information, or access to its analysts, in any form to any particular Authorized User. YipitData will not provide notice to the Authorized User(s) of any arrangement whereby YipitData provides such information or access to another Authorized User, other customer or other third party.
4. Payment Terms. Customer will pay all fees or charges pursuant to the Order Schedule(s). Unless otherwise provided in the applicable Order Schedule, fees for each Data Product are due in advance on a monthly basis, on the first day of each month during the term of the Order Schedule. 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 lessor of (a) 1.5% per month or (b) the maximum permitted by law. Customer will reimburse YipitData for all costs and expenses attributable to any collection effort. Customer is responsible for all taxes and surcharges imposed on the products and services provided pursuant to this Agreement, excluding taxes based on YipitData's income. Upon termination of this Agreement and/or the Order Schedule(s), Customer will pay in full any balance due on Customer’s account.
5. Confidentiality. Customer and its Authorized Users will treat each Data Product and any information conveyed in connection therewith, the data and analysis contained in each Data Product, and the terms of this Agreement as YipitData's confidential information, protecting it from unauthorized use or disclosure by exercising at least the same degree of care Customer and its Authorized Users use to protect its own similar information but in no event less than a reasonable degree of care. YipitData will treat the fact of Customer and its Authorized Users’ receipt of the Data Product(s) from YipitData and all non-public information disclosed by Customer and its Authorized Users pursuant to this Agreement and clearly identified as confidential as Customer’s confidential information, protecting it from unauthorized use or disclosure by exercising at least the same degree of care YipitData uses to protect its own similar information but in no event less than a reasonable degree of care. YipitData’s obligations do not apply to any information that: (1) is in the public domain at the time of its communication; (2) is independently developed by YipitData; (3) enters the public domain through no fault of YipitData after Customer or its Authorized Users’ disclosure to YipitData; (4) is in YipitData’s possession free of any obligation of confidence when disclosed by Customer or its Authorized Users to YipitData; or (5) is communicated by Customer or its Authorized Users to a third party without any obligation of confidence. In addition, Customer and its Authorized Users acknowledge that YipitData is in the business of collecting, researching, and analyzing web data and its confidentiality obligations will not apply to information obtained by YipitData from other sources, even if to prepare a Data Product for Customer and its Authorized Users. 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 the party first provides other party with reasonable prior notice and obtains, or provides the other party with an opportunity to obtain, a protective order or confidential treatment of the confidential information; (b) for purposes of consultation with its attorneys and financial advisors; and (c) to enforce its rights in court. YipitData will not use Customer's name or that of any of Customer’s affiliates, either orally or in writing, for any marketing or promotional purposes. For the avoidance of doubt, YipitData and Customer and its Authorized Users agree that neither party owes any type of fiduciary duty to the other party.
6. Data Accuracy. The Data Product is provided on an 'AS IS' and 'AS AVAILABLE' basis. YipitData compiles, categorizes, and generates the Data Product in a variety of methods, using variable inputs, such that the Data Product 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 Product is at Customer’s and its Authorized Users’ own risk. YipitData does not verify the completeness, accuracy, or authenticity of the Data Product.
7. Investments. Customer and its Authorized Users acknowledge that YipitData is not registered as an investment advisor in any jurisdiction and that the Data Product is not investment advice or a recommendation or solicitation to buy or sell any securities. Customer and its Authorized Users agree to do its own research and due diligence before making any investment decisions. YipitData acknowledges that Customer and its affiliates may invest in public equities. YipitData agrees not to knowingly communicate any Data Product that is deemed to be 'material nonpublic information” within the meaning of United States federal securities law. YipitData agrees not to knowingly communicate to Customer or its Authorized Users any Data Product that YipitData believes was obtained in violation of a fiduciary duty, a contractual duty of confidentiality or similar duty. Customer and its Authorized Users further agree that it 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. Customer also agree that Authorized Users will use the information provided in the Data Reports only for purposes and in ways that are consistent with all applicable legal requirements. YipitData and Customer will at all times maintain policies and procedures reasonably designed to comply with these provisions.
8. Disclaimer of Warranty/Indemnification. YIPITDATA EXCLUDES ALL REPRESENTATIONS or WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO ANY DATA PRODUCT OR SERVICES 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. MOREOVER, THE PARTIES AGREE THAT YIPITDATA IS NOT REQUIRED TO PROVIDE INDEMNIFICATION OF ANY KIND, ON ANY GROUND.
9. Limitation of Liability.
a. Liability Limit. THE ENTIRE LIABILITY OF YIPITDATA (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ASSIGNEES, AND REPRESENTATIVES) IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING UNDER TORT LAW, CONTRACT LAW, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO YIPITDATA PURSUANT TO THE ORDER SCHEDULE OUT OF WHICH THE LIABILITY ARISES, OVER THE THREE (3) MONTHS PRECEDING THE TERMINATION OF THE AGREEMENT.
b. No Consequential Damages. EXCEPT IN CONNECTION WITH A PARTY’S BREACH OF SECTION 3 (PROPRIETARY RIGHTS; RESTRICTIONS) OR SECTION 5 (CONFIDENTIALITY) 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.
c. Reasonable Allocation of Risk. Customer acknowledges that the limitations of liability and disclaimer of warranties and indemnification obligations are a fundamental part of this Agreement, and YipitData would not enter into this Agreement absent such limitations.
10. Term and Termination. This Agreement is effective as of the latest date of the signatures below. Each Order Schedule will remain in effect as provided in the applicable Order Schedule. Either party may terminate any or all Order Schedules, and this Agreement, at any time upon notice for material breach, including failure to pay amounts owed. Customer is not entitled to refunds, credits or prorated prices for partial periods. Terms of this Agreement (including the Order Schedules) that contemplate a party’s performance after termination (including but not limited to confidentiality and payment obligations) shall survive and remain in effect notwithstanding such termination.
11. Governing Law; Venue. This Agreement is governed by the laws of the State of Delaware, 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 Delaware; 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.
12. Force Majeure. The Data Product(s), and YipitData’s ability to provide the Data Product(s), 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, act of war, act of terrorism, earthquake, flood, wind damage, or electrical, internet or telecommunications outage.
13. 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 Order Schedule, but each party may change its address by written notice in accordance with this paragraph.
14. 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. YipitData may assign this Agreement or any rights or obligations under this Agreement to (i) one or more financial institutions, lenders, and creditors as collateral security for any financing; or (ii) any purchaser of all or substantially all of the assets or the majority of the stock of YipitData by merger, consolidation or otherwise. 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 writing by the parties, or in the case of a waiver, by the party waiving compliance. 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.
