This TERMS OF SERVICE (this “Agreement“) is made between FeedOtter LLC (“FeedOtter”) and you, or, if you represent an entity or other organization, that entity or organization (in either case “You”).
FeedOtter provides certain marketing software services, tools, analytics and other functionality (collectively, the “Services”) through the web site located at http://www.feedotter.com (the “Site”). Messages and communications sent through the Site (“Communications”), application programming interfaces made available by FeedOtter (“APIs”), and such other sites or methods as may be designated by FeedOtter (the Site, Communications, APIs, and any other methods designated by FeedOtter, (collectively, the “Platform”).
All access to and use of the Services available through the Platform is subject to the terms of this Agreement. If You have placed or later place an Order Form (whether through the Platform, by email, phone or otherwise) with FeedOtter (Your “Order”) seeking to access and use certain of the Services, and if FeedOtter accepts that Order, then Your access to and use of the Services is also subject to the terms of that Order.
PLEASE CAREFULLY READ THIS AGREEMENT. BY SUBMITTING AN ORDER or by ACCESSING OR USING THE PLATFORM OR SERVICES, YOU agree THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
This Agreement is entered into as of the earlier of the date You first submit an Order relating to the Services or first access or use the Services or Platform (the “Effective Date”). If any terms of the Order conflict with any terms within this Agreement then the terms within the Order shall supersede those within this Agreement.
1. Definitions. Terms used in this Agreement will have the definitions given in this Agreement or, if not defined in this Agreement, will have their plain English meaning as commonly interpreted in the United States.
2. Access to the Services. Upon receipt of your Order by FeedOtter, the rights granted to You under this Agreement entitle You to access and use the Services through an account (Your “Account”). You will be permitted to establish the number of unique user identification and password combinations applicable to Your Account as set forth in each applicable Order (each, an “Account ID”). Each Account ID is personal in nature and may be used only by You or, if You are an organization, by individual employee within Your organization (each individual, as applicable, a “User” of the Account). You are solely responsible for all use of the Services by each User and for compliance by each User with the applicable terms of this Agreement and upon a User’s access to the Platform the agree to be bound by the terms of this Agreement. You will ensure the security and confidentiality of each Account ID and will notify FeedOtter immediately if any Account ID is lost, stolen or otherwise compromised. You acknowledge that You are responsible for all costs, fees, liabilities or damages incurred through use of each Account ID (whether lawful or unlawful) and that any Services ordered or transactions completed through Your Account or under any Account ID (including without limitation the configuration of the Services provided through the Account) will be deemed to have been completed by You. FeedOtter will not be liable for the foregoing obligations or the failure by You to fulfill those obligations.
3. Subscription and License. Subject to this Agreement, during the Term of this Agreement FeedOtter grants You a non-transferable, non-sublicensable, non-exclusive subscription and license to access and use the Services through the Platform. All access to the Services will be solely by You for Your own use in connection with Your own business purposes or, if You are an entity or other organization, solely by Your employees and contractors for use on Your behalf in connection with Your business purposes. In all cases, Your rights to access and use the Services and Platform are non-exclusive, non-transferable, and non-sublicensable. You understand that FeedOtter may from time to time, in its sole discretion, update, change, revise, suspend or discontinue the Services (or any portion thereof) with or without notice.
4. Term. This Agreement will be effective upon the Effective Date within the Order. This Agreement will continue for the initial period stated in the Order or if no initial period is stated in the Order this Agreement will continue for an initial period of 12 months and will thereafter automatically renew for successive additional 12-month renewal periods (collectively the “Initial Term”). This Agreement shall automatically renew successive terms equal to the Initial Term unless you notify FeedOtter that You do not wish to renew the Agreement at least 30 days prior to the end of the then-current period (each a “Renewal Term”). In all other cases, the term of this Agreement will continue unless terminated as set forth in this Agreement.
5. Software. Any software, code, or APIs available on or accessible through the Platform or Services (collectively, “Software”) is protected by IPR (as defined in Sections 7 and 11 of this Agreement). You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Software or any IPR therein or related thereto, and You may not modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit any portion of the Software without the prior written permission of FeedOtter. The parties hereto are independent parties, not agents, employees, or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.
6. Third-Party Services. The Services may include services (“Third Party Services”) developed, provided or maintained by third-party service providers (each a “Third Party Provider”). FeedOtter has no control over, is not responsible for, and does not provide support or maintenance for, any Third Party Services. In addition to the terms of this Agreement, Your access to and use of any Third Party Services is also subject to any other agreement separate from this Agreement that You may enter into (or may have entered into) relating to those Third Party Services, if applicable (each, a “Third Party Service Agreement”). Any Third Party Service Agreements you enter into as they relate to your use of the Platform will need to comply with the terms of this Agreement. Third Party Services provided through the use of the Platform may be subject to additional Fees as set forth on the Platform. Notwithstanding the terms of any Third Party Services Agreement, FeedOtter or the Third Party Provider may change, modify or discontinue any Third Party Service at any time and without notice to You. Except as expressly set forth in this Agreement or any Third Party Service Agreement, You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Third Party Services.
7. Restrictions. You acknowledge that the Services, Platform, Software, and the databases, software, hardware and other technology used by or on behalf of FeedOtter to provide the Services and operate the Platform and their structure, organization, coordination, and underlying data, information, and source code (collectively, the “Technology”) constitute valuable IPR of FeedOtter. You will not, and will not permit any third party to: (1) access or use the Technology, in whole or in part, except as expressly provided in this Agreement; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (3) use automated scripts or other automated means to collect information from or otherwise access or interact with the Technology; (4) alter, modify, reproduce, create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Your rights to access or use the Technology; (6) provide the Services, or use the Platform to provide services, to third parties or otherwise make the Technology or access thereto available to any third party, except as expressly permitted under this Agreement; (6) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Technology; (7) access or attempt to access the Platform other than through the APIs or other published interfaces for the Platform; (8) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (9) use the Technology for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes; (10) obscure or alter the identification of the origin of any data transmitted through the Services; or (11) interfere in any manner with the operation or hosting of the Technology, or attempt to gain unauthorized access to the Technology. You will not allow any access to or use of the Technology by anyone other than Your Authorized Users and all such use will be consistent with the terms, conditions and restrictions set forth in this Agreement.
8. Fees and Payment. You agree to pay FeedOtter all fees set forth in each Order and any fees otherwise specified on the Platform or through the Services (“Fees”). All Fees will be billed as indicated in each Order or on the Platform. If the applicable Order does not specify any applicable billing terms, the initial payment of Fees specified under that Order for each period in Your subscription will be due and payable by You in advance on or before the Effective Date and again on or before the completion of each subsequent period under this Agreement in advance of any renewal periods. If You have specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, You grant FeedOtter the right to charge the credit card or debit the bank account provided to FeedOtter for all Fees incurred under this Agreement. All Fees will be non-refundable once paid to FeedOtter (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law. FeedOtter may change any portion of the Fees by posting the changes to the Platform or otherwise notifying You through the Services of the change, such changes to take effect at the beginning of the next period of this Agreement. If FeedOtter requires use of collection agencies, attorneys, or courts of law for collection on Your account, You will be responsible for those expenses. You will be responsible for all use, sales, and other taxes imposed on the Services provided under this Agreement.
9. Termination. This Agreement may be terminated by either party upon thirty (30) days written notice. Additionally, FeedOtter, at any time mey terminate this Agreement upon any breach by You of this Agreement that remains uncured 10 days after FeedOtter delivers written notice to You of such breach. FeedOtter may also terminate this Agreement upon notice to You if FeedOtter, in its sole discretion, ceases to make any portion of the Services generally commercially available. Upon termination or expiration of this Agreement for any reason: (a) all rights and subscriptions granted to You under this Agreement will terminate; (b) You will immediately cease all use of and access to the Platform, Services, and any Software; (c) all Fees then owed by You will become immediately due and payable; and (d) You will immediately either return to FeedOtter or, at FeedOtter’s discretion, destroy the Account IDs, FeedOtter Confidential Information (as defined below), and other information related to this Agreement in Your possession or control. The following Sections will survive any expiration or termination of this Agreement for any reason: 7 (Restrictions), 8 (Fees and Payment), 9 (Termination), 11 (Ownership), 13.3 (Warranties and Disclaimer: Disclaimer), 14 (Indemnity), 15 (Limitation on Liability), 16 (Data Privacy), 17 (Confidentiality), 20 (Notices), 21 (Governing Law) and 22 (General).
10. Suspension. Without limiting FeedOtter’s right to terminate this Agreement, FeedOtter may also immediately and indefinitely suspend Your access to the Platform or Services, with or without notice to You, upon any actual, threatened, or suspected breach of this Agreement or applicable law or upon any other conduct deemed by FeedOtter to be inappropriate or detrimental or harmful to the Platform, Services, FeedOtter, any other FeedOtter customer or user, or any other third party.
11. Ownership. FeedOtter retains all right, title and interest, including, without limitation, all IPR (as defined below), in and to the Platform, Services, Technology, any Software, and any additions, improvements, updates, and modifications thereto. You acknowledge that You are not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to You to use them apart from Your right to access the Services under this Agreement. The FeedOtter name, logo and the product and service names associated with the Services are trademarks of FeedOtter (or its third party providers), and no right or license is granted to You to use them. For purposes of this Agreement, “IPR” means any and all intellectual property rights, proprietary rights, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, rights in data and databases, and contract rights.
13. Warranties and Disclaimer
13.1 By FeedOtter. FeedOtter represents and warrants to You that FeedOtter will use commercially reasonable efforts to maintain and verify that the Services operate in accordance with this Agreement. FeedOtter’s sole obligation and Your sole and exclusive remedy in the event of any failure by FeedOtter to comply with the foregoing sentence will be for FeedOtter to, at FeedOtter’s option, to extend to You the the time, if any, You have actually paid for the affected Services during the month in which the failure occurred extending the Term of the agreement that amount of time for which your access to the Services was affected.
13.2 By You. You hereby represent, warrant, and covenant for the benefit of FeedOtter that: (a) You have the legal right and authority to enter into this Agreement, and, if You are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (b) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement You enter into in connection with any of the Services; (c) Your Leads, and any other data, information or content You provide to FeedOtter in connection with this Agreement and Your access to the Platform and use of the Services, is correct and current; and (d) You will comply with all laws, rules, and regulations applicable to Your use of and access to the Platform and Services or regarding your business, products or services.
13.3 No Warranty of Any Kind. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 13, THE PLATFORM, SERVICES, SOFTWARE, AND TECHNOLOGY ARE PROVIDED TO YOU STRICTLY “AS IS” AND “AS AVAILABLE” and FeedOtter AND ITS THIRD PARTY providers EXPRESSLY DISCLAIM, and you disclaim any reliance on, ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ANY SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, title or non-infringement. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FeedOtter, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES expressly SET FORTH IN THIS SECTION 13.
14.1 By FeedOtter. FeedOtter will, at its expense, defend You against any claims brought against You by a third party that Your use of the Services in accordance with this Agreement infringes any copyright, trade secret or trademark right. The foregoing obligations of FeedOtter under this Section 14 are conditioned upon You providing FeedOtter with: (a) notice of any such claim within 10 days after You receive written notice thereof; (b) sole control over the defense and settlement of such claim; and (c) reasonable assistance (at FeedOtter’s expense) in the defense and settlement of such claim. If You are, or FeedOtter reasonably believes You may be, enjoined from using the Services, FeedOtter, at FeedOtter’s option and expense, may procure the right for You to continue using the Services, replace or modify the Services so that they become non-infringing, or provide You a refund of all pre-paid amounts applicable to such Services (if any) and terminate this Agreement with respect to such Services. This Section 14.1 constitutes FeedOtter’s sole and exclusive liability, and Your sole and exclusive remedy, for any infringement or misappropriation of any third party IPR by or through the Platform, Services, Technology, or any Software.
14.2 By You. You hereby indemnify, defend, and hold harmless FeedOtter and its affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising from (a) any breach by You (including by any User or through any Account) or (b) Your access to or use of the Platform, Services, Software, Your Leads, in each case, except to the extent arising from a claim subject to indemnification pursuant to Section 15.1. FeedOtter will provide You with notice of any such claim or allegation, and FeedOtter will have the right to participate in the defense of any such claim at its expense.
15. Limitation on Liability. IN NO EVENT WILL FeedOtter BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THE USE OF THE PLATFORM, SERVICES or technology, EVEN IF FeedOtter HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. FeedOtter’s TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND all SERVICES provided under this agreement AND THROUGH THE PLATFORM, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO FeedOtter HEREUNDER IN THE 1 MONTH PRECEDING ANY SUCH initial occurrence of LIABILITY (OR, IF NO SUCH FEES HAVE BEEN PAID, $10). IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, FeedOtter’s LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
18. Linked Sites. The Platform and Services may contain links to third-party sites or content that are not under the control of FeedOtter. If you access a third-party site or content from the Platform or Services, then you do so at your own risk and FeedOtter is not responsible for any content on any linked site or content. You may establish a link to the Site, provided that the link does not state or imply any sponsorship or endorsement of Your site by FeedOtter or any group or individual affiliated with FeedOtter. You may not use on your site any FeedOtter marks appearing on the Site or Platform in establishing the link. You may not frame or otherwise incorporate into another site the content or other materials on the Platform without prior written consent.
19. Modifications to the Platform and Services. FeedOtter reserves the right, at any time, to modify the Platform or Services, by making such modification available through the Platform or by providing other notice to You. Any modification will be effective immediately upon posting on the Platform or such other notice. As applicable, You will be deemed to have agreed to such modification through Your continued use of the Platform or Services.
20. Notices. All notices, consents, and other communications provided to FeedOtter will be provided by You in writing and shall be delivered by hand, certified U.S. mail (return receipt requested), or overnight delivery service (with confirmation of receipt) to FeedOtter LLC, 3311 Abbey Ct, Manhattan, KS 66503 or the address for FeedOtter set forth on the Site. All notices, consents, and other communications provided to You may be provided by FeedOtter by email to the email address FeedOtter maintains on file for You or by any means by which You are permitted to provide notice to FeedOtter. All notices, consents and communications will be deemed to have been received by the addressee upon confirmed receipt or, as applicable, within 24 hours after FeedOtter sends notice by email to You.