Last Updated: September 1, 2026
These Application Terms of Service (this “Agreement”) are entered into between FeedOtter LLC (“FeedOtter”) and the individual or entity that accepts this Agreement (“Customer”). If you accept this Agreement on behalf of a company or other organization, “Customer” means that organization, and you represent that you have the authority to bind it to this Agreement.
PLEASE READ THIS AGREEMENT CAREFULLY. BY SIGNING OR SUBMITTING AN ORDER, CLICKING TO ACCEPT THIS AGREEMENT, OR ACCESSING OR USING THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE, CUSTOMER MAY NOT ACCESS OR USE THE SERVICES.
This Agreement is effective as of the earliest of the date Customer first accepts this Agreement, submits an Order, or accesses or uses the Services (the “Effective Date”).
1. Definitions
Capitalized terms have the meanings given below or where they are defined elsewhere in this Agreement. Terms not defined have their plain-English meaning as commonly understood in the United States.
“Account” means the account through which Customer and its Users access the Services.
“Customer Data” means all data, content, and materials that Customer or its Users submit to, upload to, or make available through the Services, or that the Services retrieve on Customer’s behalf from Customer’s systems, feeds, or Third-Party Services, including feed content, email templates, images, branding, and configuration settings, together with the emails and other outputs the Services generate from those materials. Customer Data does not include the Technology.
“Documentation” means FeedOtter’s then-current user guides, help-center articles, and technical specifications for the Services that FeedOtter makes generally available to its customers.
“Intellectual Property Rights” means all patents, copyrights, trademarks, service marks, trade names, trade secrets, rights in data and databases, moral rights, and all other intellectual property and proprietary rights anywhere in the world, whether registered or unregistered.
“Order” means an order form, online checkout, subscription plan selection, statement of work, or other ordering document for the Services that is either (a) signed by both Customer and FeedOtter or (b) submitted by Customer through the Platform, by email, or otherwise, and accepted by FeedOtter. Each Order is incorporated into this Agreement.
“Platform” means the website located at https://www.feedotter.com and its subdomains (the “Site”), the FeedOtter web application, and any other user interfaces or delivery methods FeedOtter designates for accessing the Services.
“Services” means the hosted marketing software services, tools, analytics, and related functionality that FeedOtter makes available to Customer through the Platform under an Order, together with the Documentation and related support.
“Software” means any software, code, scripts, or plug-ins that FeedOtter makes available through the Platform or the Services.
“Technology” means the Services, Platform, Software, and Documentation; all databases, software, hardware, and other technology used by or on behalf of FeedOtter to provide the Services, including their structure, organization, and source code; and all improvements, updates, and modifications to any of the foregoing.
“Third-Party Services” means products, services, platforms, and applications provided by a party other than FeedOtter (for example, marketing automation, email service, content management, or CRM platforms) that interoperate with the Services.
“User” means an individual employee, contractor, or agent of Customer whom Customer authorizes to access and use the Services under Customer’s Account.
2. The Services
2.1 Access and Use. Subject to this Agreement, including payment of the applicable Fees, FeedOtter grants Customer, during each Subscription Term, a non-exclusive, non-transferable (except as permitted under Section 12.4), non-sublicensable right to access and use the Services, and to use any Software and Documentation that FeedOtter provides with the Services, in each case for Customer’s own business purposes and in accordance with the Documentation and the applicable Order.
2.2 Orders. Customer may purchase subscriptions to the Services by entering into an Order. An Order submitted through the Platform or otherwise becomes effective when FeedOtter accepts it, which FeedOtter may do by confirming acceptance in writing (including by email) or by making the ordered Services available to Customer.
2.3 Users and Account Credentials. Customer may authorize Users up to the number of user credentials permitted in the applicable Order. Each User must have unique login credentials, which may not be shared with any other person, although Customer may reassign credentials when a User no longer needs access. Customer is responsible for (a) its Users’ compliance with this Agreement, (b) maintaining the confidentiality and security of its Users’ credentials, and (c) all activity that occurs under its Account, except to the extent caused by FeedOtter’s breach of this Agreement. Customer will notify FeedOtter promptly after becoming aware of any loss, theft, or unauthorized use of any credentials or of its Account.
2.4 Third-Party Services. The Services may interoperate with Third-Party Services. Customer’s use of any Third-Party Service is governed by Customer’s agreement with the provider of that Third-Party Service, not by this Agreement. By connecting a Third-Party Service to the Services, Customer authorizes FeedOtter to access and exchange data with that Third-Party Service as necessary to provide the Services and as Customer directs. FeedOtter does not control and is not responsible for Third-Party Services, including their availability, security, or handling of data after it leaves the Services. If a Third-Party Service provider changes, restricts, or discontinues its service or APIs, or a Third-Party Service becomes unavailable, then (a) FeedOtter will use commercially reasonable efforts to restore or maintain the affected integration or provide a reasonable alternative; (b) FeedOtter may suspend, modify, or discontinue the affected integration and any features that depend on it; and (c) any resulting interruption, degradation, or loss of functionality is not a breach of this Agreement by FeedOtter, including Sections 2.6 and 9.2. If FeedOtter permanently discontinues an integration that is expressly listed in Customer’s Order (or, for plans purchased through the Platform, that is advertised as a feature of Customer’s plan) without providing a reasonable alternative, Customer may terminate the affected subscription on written notice, and Customer will not owe Fees for any billing period beginning after the effective date of termination. This Section 2.4 states FeedOtter’s entire liability, and Customer’s sole and exclusive remedy, for any change to, discontinuation of, or unavailability of a Third-Party Service or of the Services’ integration with it. Additional fees for Third-Party Services apply only if they are stated in the applicable Order or disclosed on the Platform before Customer elects to use them.
2.5 Support. FeedOtter will provide standard customer support for the Services as described in the Documentation or the applicable Order. Any enhanced support or service-level commitments apply only if they are set out in an Order.
2.6 Changes to the Services. FeedOtter may update and improve the Services from time to time. FeedOtter will not materially decrease the overall functionality of the Services purchased by Customer during the then-current Subscription Term. FeedOtter will give Customer at least thirty (30) days’ notice (by email or through the Services) before removing or materially changing a feature of the Services that Customer is actively using, except where a shorter period is required to address a security risk, a legal requirement, or a change by a Third-Party Service provider, in which case FeedOtter will give as much notice as is reasonably practicable. Changes to or loss of functionality caused by a Third-Party Service are governed exclusively by Section 2.4 and are not a breach of this Section 2.6.
2.7 Free Trials and Beta Features. If FeedOtter provides the Services on a free-trial basis, or makes available features identified as beta, preview, pilot, or similar (“Beta Features”), those Services and features are provided for evaluation purposes, may be changed or discontinued at any time, are provided “AS IS,” and are not subject to the warranties, support commitments, or indemnities in this Agreement. Customer’s use of Beta Features is optional. Subject to Section 11.3, FeedOtter’s total liability arising from free trials and Beta Features will not exceed one hundred U.S. dollars (US $100).
3. Use Restrictions and Customer Responsibilities
3.1 Restrictions. Except as expressly permitted by this Agreement, the Documentation, or an Order, Customer will not, and will not permit any User or third party to:
(a) sell, resell, license, sublicense, rent, lease, distribute, or otherwise make the Services available to any third party, or use the Services to provide service-bureau, time-sharing, or similar services to third parties, unless the applicable Order authorizes Customer to use the Services on behalf of its clients (for example, under an agency plan);
(b) copy, modify, translate, or create derivative works of the Technology;
(c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, underlying algorithms, or trade secrets of the Technology, except to the extent applicable law expressly permits this despite this restriction;
(d) access or use the Services through any automated means, including scripts, bots, scrapers, crawlers, or programmatic or API calls, or access the Services other than through the user interfaces FeedOtter provides (this does not restrict the integrations and content-delivery methods that FeedOtter itself provides as part of the Services);
(e) circumvent or interfere with any security, authentication, usage-limit, or access-control measure of the Services, or attempt to gain unauthorized access to the Technology or to any other customer’s data;
(f) interfere with or disrupt the integrity, performance, or hosting of the Technology, or introduce any virus, malware, or other harmful code;
(g) use the Services in violation of applicable law, or to create, store, send, or transmit content that is unlawful, infringing, defamatory, fraudulent, or that violates any person’s privacy or publicity rights;
(h) access or use the Services to build a competing product or service, or perform benchmarking or competitive analysis of the Services for publication or for the benefit of a competitor of FeedOtter; or
(i) remove, obscure, or alter any proprietary notice in the Technology, or falsify or obscure the origin of any data or message transmitted through the Services.
For clarity, Customer may monitor the availability and performance of the Services for its own internal operational purposes.
3.2 Email and Marketing Compliance. Customer is solely responsible for the content of the communications it creates or sends using the Services, for its recipient lists, and for complying with all laws that apply to those communications, including the CAN-SPAM Act, Canada’s Anti-Spam Legislation, the EU and UK General Data Protection Regulations and related ePrivacy rules, and similar laws. Customer will obtain and maintain all consents, and provide all notices, required for its communications and for FeedOtter to process Customer Data as contemplated by this Agreement. Customer is also responsible for ensuring it has the rights needed to use and republish any third-party content that it directs the Services to retrieve, including content from feeds that Customer does not own.
3.3 Customer Equipment. Customer is responsible for obtaining and maintaining the hardware, software, internet access, and Third-Party Service accounts needed for Customer and its Users to access and use the Services.
3.4 Suspension. FeedOtter may temporarily suspend Customer’s or any User’s access to all or part of the Services if (a) FeedOtter reasonably determines that the use poses a security risk to the Services or to any third party, could subject FeedOtter or others to liability, or violates Section 3.1 or 3.2; or (b) any undisputed Fees are more than fifteen (15) days past due after FeedOtter has given Customer written notice of non-payment. FeedOtter will limit any suspension to the minimum scope and duration reasonably necessary, give Customer advance notice explaining the reason where practicable (and otherwise prompt notice afterward), and restore access promptly once the issue is resolved. A suspension does not terminate this Agreement.
4. Fees and Payment
4.1 Fees. Customer will pay the fees set out in each Order and any other fees that Customer agrees to through the Platform (together, “Fees”).
4.2 Billing and Payment. Unless the applicable Order states otherwise, Fees are billed in advance at the start of each Subscription Term (or each billing period within it) and are due on the invoice date for card or bank payments, or within thirty (30) days after the invoice date for payments made against an invoice. If Customer provides a credit card, debit card, or bank account for payment, Customer authorizes FeedOtter and its payment processor to charge it for all Fees when due, including Fees for Renewal Terms, and Customer will keep its payment information current. All Fees are stated and payable in U.S. dollars.
4.3 Late Payment and Disputes. Undisputed amounts that are not paid when due may accrue a late charge of the lesser of 1.5% per month or the maximum rate permitted by law, from the due date until paid. If Customer disputes any charge in good faith, Customer will notify FeedOtter in writing with reasonable detail before the due date and pay any undisputed portion. The parties will work together in good faith to resolve the dispute, and FeedOtter will not charge late fees on, or suspend the Services because of, a disputed amount while the dispute is being resolved in good faith. Customer will reimburse FeedOtter for its reasonable costs of collecting undisputed amounts that are more than thirty (30) days past due, including reasonable attorneys’ fees and collection-agency fees.
4.4 Taxes. Fees do not include taxes. Customer is responsible for all sales, use, value-added, withholding, and similar taxes associated with its purchases under this Agreement, other than taxes based on FeedOtter’s net income, property, or employees. If FeedOtter is required to collect or pay taxes for which Customer is responsible, FeedOtter will invoice Customer for them unless Customer provides a valid tax-exemption certificate.
4.5 Fee Changes. Fees for a Subscription Term will not increase during that Subscription Term. FeedOtter may change its Fees for any Renewal Term by notifying Customer at least sixty (60) days before the end of the then-current Subscription Term. Changed Fees take effect at the start of the next Renewal Term.
4.6 Refunds. All Fees are non-refundable, except for the refunds described in Section 5.5. FeedOtter may, in its sole discretion, issue a refund or account credit as a customer-service courtesy, and doing so does not obligate FeedOtter to issue any other refund or credit.
5. Term and Termination
5.1 Term of Agreement. This Agreement begins on the Effective Date and continues until all Subscription Terms have ended, unless terminated earlier as provided in this Agreement. If no Subscription Term is in effect, either party may terminate this Agreement on written notice to the other party.
5.2 Subscription Term and Automatic Renewal. Each subscription begins on the start date stated in the applicable Order (or, for purchases through the Platform, when FeedOtter makes the Services available) and continues for the initial period that Customer selects in the Order or through the Platform (the “Initial Term”). Unless the Order states otherwise, each subscription automatically renews for successive periods equal in length to the Initial Term (each, a “Renewal Term,” and together with the Initial Term, the “Subscription Term”), unless either party gives the other party notice of non-renewal at least thirty (30) days before the end of the then-current term. Customer may give notice of non-renewal by written notice to FeedOtter or through its Account settings, where available. For Subscription Terms of one year or longer, FeedOtter will send Customer a renewal reminder at least forty-five (45) days before the renewal date.
5.3 Termination for Cause. Either party may terminate this Agreement or the affected Order on written notice if the other party (a) materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice describing it, or (b) becomes insolvent, makes a general assignment for the benefit of creditors, or becomes the subject of any bankruptcy, receivership, or similar proceeding that is not dismissed within sixty (60) days. Neither party may terminate this Agreement or any subscription for convenience during a Subscription Term.
5.4 Effect of Termination. Upon expiration or termination of this Agreement or any subscription: (a) Customer’s right to access and use the affected Services ends, subject to Section 5.6; (b) Customer will pay all undisputed Fees accrued through the effective date of termination and, if FeedOtter terminates under Section 5.3 because of Customer’s breach or insolvency, any unpaid Fees for the remainder of the then-current Subscription Term; and (c) each party will, upon the other party’s request, return or destroy the other party’s Confidential Information in its possession or control, as described in Section 8.5.
5.5 Refunds on Termination. Expiration or termination of this Agreement or any subscription does not entitle Customer to a refund of any Fees, except that FeedOtter will refund to Customer the pro-rata portion of any prepaid Fees that cover the remainder of the Subscription Term after the effective date of termination if (a) Customer terminates under Section 5.3 because of FeedOtter’s uncured material breach, under Section 9.3, or under Section 12.5; or (b) FeedOtter terminates a subscription under Section 10.3. FeedOtter will pay any refund due under this Section within thirty (30) days after the effective date of termination.
5.6 Data Export and Deletion. For thirty (30) days after the expiration or termination of this Agreement or any subscription, FeedOtter will, upon Customer’s request, make Customer Data available to Customer for export in the formats the Services then support, at no additional charge. After that period, FeedOtter will delete Customer Data from its active systems within a commercially reasonable time and from its backups in accordance with its standard backup-rotation schedule, except to the extent retention is required by law. Any Customer Data that FeedOtter retains remains subject to Sections 6 and 8.
5.7 Survival. Sections 1, 3.1, 4 (as to amounts accrued before termination), 5.4 through 5.7, 6 (for as long as FeedOtter retains Customer Data), 7, 8, 9.5, 10, 11, and 12 survive any expiration or termination of this Agreement.
6. Customer Data, Privacy, and Security
6.1 Ownership of Customer Data. As between the parties, Customer owns all right, title, and interest in and to Customer Data. FeedOtter acquires no rights in Customer Data other than the limited rights expressly granted in this Agreement.
6.2 License to FeedOtter. Customer grants FeedOtter a non-exclusive, worldwide, royalty-free license during the term of this Agreement (and during the export period described in Section 5.6) to host, copy, process, transmit, and display Customer Data solely as necessary to provide, secure, support, and maintain the Services for Customer, to prevent or address technical problems, and as required by law.
6.3 FeedOtter’s Data Commitments. FeedOtter will process Customer Data only to provide the Services under this Agreement and in accordance with Customer’s instructions, including instructions given through Customer’s configuration of the Services. Without limiting the foregoing:
(a) FeedOtter will collect personal information about Users only as needed to administer Customer’s Account (such as email addresses and login credentials);
(b) payment card and bank details are collected and stored by FeedOtter’s third-party payment processor (currently Stripe) and are not stored on FeedOtter’s own systems; and
(c) data transmitted between the Services and Third-Party Services is encrypted in transit using industry-standard Transport Layer Security (TLS) or a successor technology.
6.4 Security. FeedOtter will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Customer Data, appropriate to the nature of the data and consistent with industry standards, including access controls that limit access to Customer Data to personnel who need it to perform their duties.
6.5 Security Incidents. If FeedOtter becomes aware of any unauthorized access to, or acquisition, disclosure, alteration, or loss of, Customer Data in FeedOtter’s possession or control (a “Security Incident”), FeedOtter will notify Customer without undue delay, and in any event within seventy-two (72) hours after confirming the Security Incident; take reasonable steps to contain, investigate, and remediate it; and provide information that Customer reasonably requests to meet its own legal notification obligations.
6.6 Data Processing Addendum. To the extent FeedOtter processes personal data on Customer’s behalf that is subject to data-protection laws (such as the EU or UK General Data Protection Regulation or the California Consumer Privacy Act), FeedOtter will enter into its standard Data Processing Addendum with Customer upon request, and that addendum, once executed, will be incorporated into this Agreement.
6.7 Usage Data. FeedOtter may collect and use data about the operation and use of the Services, such as feature usage, performance metrics, and diagnostic logs (“Usage Data”), to operate, secure, support, and improve the Services. FeedOtter may also compile aggregated statistics derived from Usage Data and Customer Data, provided those statistics do not identify Customer, any User, or any other individual, and do not include Customer Data in an identifiable form.
6.8 No AI Model Training. FeedOtter will not use Customer Data to train or fine-tune any artificial-intelligence or machine-learning model that is made available to anyone other than Customer without Customer’s prior written consent.
6.9 Privacy Policy. FeedOtter’s Privacy Policy, available at https://www.feedotter.com/legal/privacy-policy/, describes how FeedOtter handles personal information that it collects for its own purposes, such as information about Site visitors and account contacts. If the Privacy Policy conflicts with this Agreement with respect to Customer Data, this Agreement controls.
7. Intellectual Property
7.1 FeedOtter Technology. As between the parties, FeedOtter and its licensors own all right, title, and interest, including all Intellectual Property Rights, in and to the Technology and Usage Data. Except for the rights expressly granted in this Agreement, no right or license is granted to Customer, whether by implication, estoppel, or otherwise.
7.2 Feedback. If Customer or any User provides suggestions, ideas, or other feedback about the Services (“Feedback”), FeedOtter may use and incorporate that Feedback without restriction or obligation to Customer, provided that FeedOtter does not publicly identify Customer as the source of the Feedback without Customer’s consent. Feedback is provided “AS IS.”
8. Confidentiality
8.1 Definition. “Confidential Information” means any non-public information disclosed by or on behalf of one party (the “Discloser”) to the other party (the “Recipient”) in connection with this Agreement that is designated as confidential or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure. FeedOtter’s Confidential Information includes the non-public aspects of the Technology and any non-public pricing. Customer’s Confidential Information includes Customer Data.
8.2 Exclusions. Confidential Information does not include information that the Recipient can demonstrate (a) is or becomes publicly available through no fault of the Recipient; (b) was known to the Recipient without restriction before it was received from the Discloser; (c) is received from a third party without breach of any obligation owed to the Discloser; or (d) is independently developed by the Recipient without use of the Discloser’s Confidential Information.
8.3 Obligations. The Recipient will (a) use the Discloser’s Confidential Information only to exercise its rights and perform its obligations under this Agreement; (b) not disclose it to anyone other than its and its affiliates’ employees, contractors, professional advisors, and service providers who need to know it for those purposes and who are bound by confidentiality obligations at least as protective as those in this Section 8; and (c) protect it using at least the same degree of care it uses to protect its own information of a similar nature, and in no event less than reasonable care. The Recipient is responsible for any breach of this Section 8 by any person to whom it discloses the Discloser’s Confidential Information.
8.4 Compelled Disclosure. The Recipient may disclose the Discloser’s Confidential Information to the extent required by law, regulation, subpoena, or court order, provided that the Recipient (where legally permitted) gives the Discloser prompt prior written notice and reasonable cooperation, at the Discloser’s expense, so that the Discloser may seek a protective order or other remedy, and discloses only the portion of the Confidential Information that it is legally required to disclose.
8.5 Duration and Return. The Recipient’s obligations under this Section 8 continue during the term of this Agreement and for three (3) years afterward, except that obligations for trade secrets continue for as long as the information remains a trade secret under applicable law, and obligations for Customer Data continue for as long as FeedOtter retains it. Upon the Discloser’s request after termination, the Recipient will return or destroy the Discloser’s Confidential Information, except that (a) Customer Data will be handled as described in Section 5.6, and (b) the Recipient may retain copies as required by law or in routine backups, which remain subject to this Section 8.
8.6 Equitable Relief. Unauthorized use or disclosure of Confidential Information may cause irreparable harm for which monetary damages would be inadequate. The Discloser may therefore seek injunctive or other equitable relief to prevent or stop any such use or disclosure, in addition to any other remedies available to it.
9. Warranties and Disclaimers
9.1 Mutual Warranties. Each party represents and warrants that (a) it has the legal power and authority to enter into and perform this Agreement, and (b) it will comply with all laws applicable to its performance under this Agreement (in FeedOtter’s case, in providing the Services, and in Customer’s case, in using the Services and operating its business).
9.2 FeedOtter Warranties. FeedOtter warrants that during each Subscription Term (a) the Services will perform materially in accordance with the Documentation; (b) FeedOtter will use industry-standard measures designed to prevent the Services from introducing viruses, malware, or other malicious code into Customer’s systems; and (c) the Services and Technology, as provided by FeedOtter and used by Customer in accordance with this Agreement, will not infringe or misappropriate any third party’s Intellectual Property Rights. The warranty in Section 9.2(a) does not apply to any nonconformity to the extent caused by a Third-Party Service, including any change to, restriction of, or unavailability of a Third-Party Service or its APIs, which is governed exclusively by Section 2.4.
9.3 Warranty Remedies. If the Services fail to conform to the warranty in Section 9.2(a), Customer will notify FeedOtter with reasonable detail, and FeedOtter will use commercially reasonable efforts to correct the nonconformity. If FeedOtter does not correct the nonconformity within thirty (30) days after receiving Customer’s notice, Customer may terminate the affected subscription on written notice and receive a refund under Section 5.5. In addition, if a nonconformity makes the Services unavailable, FeedOtter will, at Customer’s request, extend the Subscription Term at no charge by the duration of the unavailability. These remedies are Customer’s exclusive remedies for breach of the warranty in Section 9.2(a). Customer’s remedies for breach of the warranty in Section 9.2(c) are set out in Section 10.
9.4 Customer Warranties. Customer represents and warrants that (a) it has obtained all rights, licenses, and consents necessary to provide Customer Data to FeedOtter and to authorize FeedOtter’s processing of Customer Data as described in this Agreement, and (b) Customer Data, and Customer’s use of the Services, will not violate applicable law or infringe or misappropriate any third party’s rights.
9.5 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES AND TECHNOLOGY ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND EACH PARTY AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. FEEDOTTER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY COMMUNICATION WILL BE DELIVERED TO OR OPENED BY ANY RECIPIENT, OR THAT THE SERVICES WILL ACHIEVE ANY PARTICULAR MARKETING RESULT. FEEDOTTER IS NOT RESPONSIBLE FOR THIRD-PARTY SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM EITHER PARTY OR ITS EMPLOYEES OR AGENTS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
10. Indemnification
10.1 By FeedOtter. FeedOtter will defend Customer and its affiliates, officers, directors, and employees against any claim, demand, suit, or proceeding brought by a third party (a “Claim”) alleging that the Services or Technology, as provided by FeedOtter and used by Customer in accordance with this Agreement, infringe or misappropriate that third party’s patent, copyright, trademark, or trade secret, and will indemnify Customer for all damages, fines, penalties, and costs (including reasonable attorneys’ fees) finally awarded against Customer, or agreed in a settlement approved by FeedOtter, in connection with the Claim.
10.2 Exclusions. FeedOtter has no obligation under Section 10.1 for any Claim to the extent it arises from (a) Customer Data, including third-party feed content that Customer directs the Services to use; (b) any Third-Party Service; (c) any modification of the Services not made by or for FeedOtter; (d) the combination of the Services with any product, service, or data not provided or authorized by FeedOtter (integrations described in the Documentation are authorized), where the Claim would not have arisen without the combination; (e) Customer’s use of the Services in breach of this Agreement; or (f) free trials or Beta Features.
10.3 Mitigation. If the Services become, or FeedOtter reasonably believes they are likely to become, the subject of an infringement Claim, FeedOtter may, at its option and expense, (a) obtain the right for Customer to continue using the Services; (b) modify or replace the Services so that they are non-infringing without materially reducing their functionality; or (c) if neither (a) nor (b) is commercially reasonable, terminate the affected subscription and refund to Customer all prepaid Fees for the unused remainder of the Subscription Term.
10.4 By Customer. Customer will defend FeedOtter and its affiliates, officers, directors, and employees against any Claim arising from (a) Customer Data or the communications Customer sends using the Services, including any allegation that they infringe or misappropriate a third party’s rights or violate applicable law (including anti-spam and privacy laws); or (b) Customer’s or its Users’ use of the Services in breach of Section 3.1 or 3.2, and will indemnify FeedOtter for all damages, fines, penalties, and costs (including reasonable attorneys’ fees) finally awarded against FeedOtter, or agreed in a settlement approved by Customer, in connection with the Claim.
10.5 Procedure. The party seeking defense and indemnification will (a) give the indemnifying party prompt written notice of the Claim, although a delay in notice relieves the indemnifying party of its obligations only to the extent the delay materially prejudices its defense; (b) give the indemnifying party sole control of the defense and settlement of the Claim, except that the indemnifying party may not agree to any settlement that imposes any obligation on, or requires any admission of fault by, the indemnified party without the indemnified party’s prior written consent, which will not be unreasonably withheld; and (c) provide reasonable cooperation at the indemnifying party’s expense. The indemnified party may participate in the defense with counsel of its own choosing at its own expense.
10.6 Exclusive Remedy. This Section 10 states each indemnifying party’s entire liability, and each indemnified party’s exclusive remedy, for third-party Claims of the kind described in this Section 10.
11. Limitation of Liability
11.1 Exclusion of Certain Damages. EXCEPT FOR EXCLUDED CLAIMS (DEFINED IN SECTION 11.3), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, GOODWILL, OR BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, OR COST OF PROCURING SUBSTITUTE SERVICES, ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID AND PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY, OR, IF NO FEES HAVE BEEN PAID OR ARE PAYABLE, ONE HUNDRED U.S. DOLLARS (US $100).
11.3 Excluded Claims. The limitations in Sections 11.1 and 11.2 do not apply to (a) a party’s defense and indemnification obligations under Section 10; (b) Customer’s obligation to pay Fees; (c) a party’s fraud or willful misconduct; (d) Customer’s breach of Section 3.1; or (e) any liability that cannot be limited under applicable law (together, “Excluded Claims”).
11.4 Application. The limitations in this Section 11 apply even if any limited remedy in this Agreement fails of its essential purpose, and apply to the maximum extent permitted by applicable law. The parties agree that these limitations reflect a reasonable allocation of risk and are an essential basis of the bargain between them.
12. General
12.1 Changes to this Agreement. FeedOtter may update this Agreement from time to time by posting a revised version on the Site and updating the “Last Updated” date. FeedOtter will give Customer at least thirty (30) days’ notice (by email or through the Services) of any update that materially and adversely affects Customer’s rights. For Customers with a paid subscription, updates take effect at the start of Customer’s next Renewal Term, unless an update is required by law, in which case it takes effect on the date the law requires. For all other Customers, updates take effect thirty (30) days after posting. If Customer does not agree to an update, Customer may give notice of non-renewal at any time before the update takes effect, notwithstanding the thirty (30)-day notice period in Section 5.2. The terms of an Order signed by both parties may be amended only by a written amendment signed by both parties, and except as provided in this Section 12.1, this Agreement may be amended only by a writing signed by both parties.
12.2 Notices. Notices under this Agreement must be in writing and delivered by hand, by nationally recognized overnight courier, by certified U.S. mail (return receipt requested), or by email. Notices to FeedOtter must be sent to the notice address designated on the Site or in the applicable Order. Notices to Customer will be sent to the address in the applicable Order or, if none, to the primary email address associated with Customer’s Account. A notice is deemed received when delivered, if delivered by hand or courier; three (3) business days after mailing, if sent by certified mail; and twenty-four (24) hours after sending, if sent by email, unless the sender receives notice that the email was not delivered. Each party may change its notice address by notice to the other party. FeedOtter may provide routine operational notices through the Services.
12.3 Governing Law and Venue. This Agreement is governed by the laws of the State of Delaware, U.S.A., without regard to its conflict-of-laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply. The state and federal courts located in the State of Delaware have exclusive jurisdiction over any dispute arising out of or relating to this Agreement, and each party consents to the personal jurisdiction of those courts. Either party may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its Intellectual Property Rights or Confidential Information.
12.4 Assignment. Neither party may assign or transfer this Agreement without the other party’s prior written consent, which will not be unreasonably withheld, except that either party may assign this Agreement without consent, upon notice to the other party, to a successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or of the business to which this Agreement relates. Any attempted assignment in violation of this Section is void. This Agreement binds and benefits the parties and their permitted successors and assigns.
12.5 Force Majeure. Neither party is liable for any delay or failure to perform its obligations (other than payment obligations) to the extent caused by events beyond its reasonable control, such as natural disasters, fire, flood, war, terrorism, civil unrest, epidemics, government action, labor disputes not involving the affected party’s own workforce, or widespread failures of internet, utility, or hosting infrastructure not caused by the affected party. The affected party will give the other party prompt notice and use reasonable efforts to mitigate the effects of the event. If a force majeure event prevents FeedOtter from providing substantially all of the Services for more than thirty (30) consecutive days, Customer may terminate the affected subscription on written notice and receive a refund under Section 5.5.
12.6 Independent Contractors. The parties are independent contractors. This Agreement does not create any partnership, joint venture, agency, franchise, fiduciary, or employment relationship, and neither party has authority to bind the other or to incur any obligation on the other’s behalf.
12.7 Entire Agreement and Order of Precedence. This Agreement, including each Order and any document expressly incorporated by reference, is the entire agreement between the parties regarding its subject matter and supersedes all prior and contemporaneous proposals, agreements, and communications, whether written or oral, regarding that subject matter. If there is a conflict among these documents, the following order of precedence applies: (a) an Order, but only for the Services covered by that Order; (b) any executed Data Processing Addendum, with respect to the processing of personal data; (c) this Agreement; and (d) the Documentation and any FeedOtter policies. An Order modifies this Agreement only if it is signed by both parties and expressly identifies the Section or subject it modifies, and any such modification applies only to that Order. Any terms in a Customer purchase order, vendor-registration portal, or similar document are of no effect, even if FeedOtter accepts or acknowledges that document.
12.8 Severability and Waiver. If any provision of this Agreement is held unenforceable, it will be modified to the minimum extent necessary to make it enforceable in a way that most closely reflects the parties’ original intent and economic effect, and the remaining provisions will remain in full force and effect. A party’s failure or delay in enforcing any provision is not a waiver of its right to enforce that provision later.
12.9 Attorneys’ Fees. In any lawsuit or proceeding arising out of or relating to this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and costs.
12.10 Export and Sanctions Compliance. Each party will comply with all applicable export-control and economic-sanctions laws in connection with this Agreement. Customer represents that neither it nor any User is located in a country or region subject to comprehensive U.S. sanctions or is identified on any U.S. government restricted-party list, and Customer will not permit the Services to be accessed or used in violation of those laws.
12.11 No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement, except the persons entitled to defense and indemnification under Section 10.
12.12 Linked Sites. The Platform and Services may contain links to websites or content that neither party controls. Neither party is responsible for the content of any linked site.
12.13 Electronic Acceptance and Counterparts. This Agreement and any Order may be accepted electronically and executed in counterparts, each of which is deemed an original and all of which together form one instrument. Electronic signatures and click-through acceptance are as binding as handwritten signatures.
12.14 Interpretation. Section headings are for convenience only and do not affect interpretation. The words “including” and “for example” mean “including without limitation.” This Agreement will not be construed against either party on the basis that the party drafted it.