PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING ANY OF THE SERVICES AVAILABLE AT WWW.FEEDGAP.COM and APP.FEEDGAP.COM (collectively the “Site”). IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICES.
This Agreement takes effect on the earliest of You: 1) clicking a check box presented with a link to this Agreement; 2) executing or electronically accepting an Ordering Document referencing this Agreement; or 3) using the Services (the earliest of the foregoing being the “Effective Date”). If You enter into this Agreement or acquire the Services on behalf of an entity, You represent and warrant that You have the authority to accept this Agreement on the entity's behalf.
In order to use the Services, You must:
1. be at least eighteen (18) years old;
2. complete the registration process;
4. provide true, complete, and up to date contact information.
By using the Services, You represent and warrant that You meet all the requirements listed above. We may refuse to provide You with the Services, suspend or close Your account, and change eligibility requirements at any time in accordance with the terms of this Agreement. If You have any questions, feel free to send Us an email at firstname.lastname@example.org, and We will contact You shortly.
1. Definitions. In addition to terms defined elsewhere in this Agreement, the following definitions will apply to capitalized words in this Agreement:
a. “Add-On Features” means Services that may be accessed or purchased by You or a User that may not otherwise be included in a FeedGap Edition or other package purchased by You.
b. “Affiliate” of a party means any entity that directly or indirectly controls, is controlled by, or is under common control of a party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of a party or the right to receive more than fifty percent (50%) of the profits or earning of the entity.
c. “Beta Features” mean services and/or features available to Users for use which are still in their beta stage and have not been fully tested.
d. “Connection,” as used herein, is a connection from FeedGap to a Salesforce environment designated by You or a User. A FeedGap "Production Connection" is a connection to a production environment in Salesforce that stores live data that is actively used to run Your business. A FeedGap "Sandbox Connection" is a connection to a sandbox environment in Salesforce that is a copy of Your production environment and is used for testing purposes only.
e. “FeedGap Edition” means the subscription type chosen by You on an Ordering Document which sets out the base set of Services ordered by You. Different FeedGap Editions shall have different Services associated with them as further described here in the pricing section of FeedGap’s public website.
f. “Intellectual Property Rights” means any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction whether existing now or acquired hereafter including any application or right to apply for registration of any of these rights.
g. “Laws” means any and all applicable laws, regulations, statutes, rules, orders and other requirements of any international, federal, state or local governmental authority, including where applicable, the Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) ("GDPR"). Where relevant to Your and Users’ obligations, when assessing “applicability”, You and Users’ must take into account the Governing Law in Section 15 and the Laws relating to both the jurisdiction where User is using the Services and the jurisdiction where the Respondent resides.
h. “Malicious Code” means harmful or malicious code, files, scripts, agents, programs, or the like designed or intended to have, or capable of performing or facilitating, any of the following functions: disrupting, disabling, harming, corrupting, or otherwise impeding in any manner the operation of, or providing unauthorized access to, a computer system, database, or network (or other device on which such code is stored or installed), including but not limited to viruses, worms, time bombs, and Trojan horses.
i. “Order Term” means the period specified in an Ordering Document (including any renewals of the same) during which Users will have access to the Services.
j. "Ordering Document" means any form (including an electronic form), including the Initial Ordering Document, either executed by You or accepted by You online, that sets out the commercial terms of Your purchase. All Ordering Documents shall be deemed to incorporate, and shall be subject to and governed by, this Agreement.
k. "Privacy Notice" means the FeedGap Privacy Notice available at www.FeedGap.com, as updated from time to time.
l. “Respondent” means the survey taker.
m. “Response Data” means any information, data, text, creative, video, audio, photographs, images, illustrations, animations, logos, software, scripts, executable ﬁles, graphics, and interactive features, any of which may be submitted to, generated, provided, or otherwise made accessible on or through the Services by a Respondent.
n. “Services” means the Site, Software, products, features, services, applications, tools and other resources, the FeedGap Edition (including associated features), and/or any applicable support services purchased by You via an Ordering Document that may be accessed via the Site and other designated applications and all related product and service names, logos, design marks, slogans, and all other material comprising the Site, Services, and Software.
o. “Software” means any software, documentation, or data related to the Services.
p. "Subcontractor" means a service provider engaged by FeedGap that provides a part of the Services.
q. “Third Party Services” means any software, products, tools, applications, or services that are used in connection with the Services that are not owned by FeedGap or its Affiliates.
r. "User" means any person accessing and/or using the Services through Your Account.
s. "Your Account" means the Web-based account for use of the Services provided by FeedGap to You which is accessible to Users via usernames and passwords created and/or assigned by You.
t. “Your Data” means any information, data, text, creative, video, audio, photographs, images, illustrations, animations, logos, software, scripts, executable ﬁles, graphics, and interactive features, any of which may be submitted to, generated, provided, or otherwise made accessible on or through the Services by Users.
2. Agreement Structure
a. Other Incorporated Documents. This Agreement, together with any Ordering Documents referencing this Agreement and any applicable Additional Terms (as defined below) constitutes the entire agreement between You and FeedGap, LLC regarding the Services and supersedes all prior and contemporaneous agreements, representations, and understandings, whether written or oral, concerning its subject matter. Notwithstanding the foregoing, if You and FeedGap, LLC execute a written agreement for use of the Services, the terms and conditions of the executed agreement shall prevail to the extent of any conflict with the terms of this Agreement. In the event of any conflict between the terms of this Agreement and the other incorporated documents, the conflict shall be resolved in the following order of precedence:
i. Additional Terms,
ii. Agreement, and
iii. Ordering Document.
The above order of precedence will apply unless: 1) the conflicting term is expressly stated to vary the conflicting provision of the controlling document; 2) the controlling document specifically provides that a lower order document may vary the applicable term of the controlling document; or 3) the Parties expressly agree otherwise. All rights not expressly granted herein are reserved by Us.
b. Agreement Modifications. This Agreement was last modified on the date listed at the end of this Agreement. We may make changes to this Agreement by posting a revised Agreement on Our Site and/or by sending an email to the last email address You gave Us. You agree that Users’ use of the Services after the effective date of any modifications to this Agreement constitutes Your acceptance of the modified terms. It is Your responsibility to check this website regularly for modifications to this Agreement. No modification, addition, deletion or waiver of any rights under this Agreement will be binding on FeedGap unless signed by a duly authorized representative of FeedGap.
c. Additional Terms. Additional terms may apply to Add-On Features. These additional terms, available at FeedGap.com/legal, will be considered incorporated into this Agreement when a User activates the Add-On Feature or You purchase an Add-On Feature on an Ordering Document (the “Additional Terms”). Where there is a conflict between this Agreement and the Additional Terms, the Additional Terms will prevail to the extent of the conflict.
d. d. EU Personal Data Transfer. In the event that Users intend to transfer the Personal Data of an EU Data Subject (as defined by the GDPR), You agree to notify Us and execute a Data Protection Addendum (the “Data Processing Addendum”). Once executed, the Data Processing Addendum will be deemed wholly incorporated into this Agreement and will prevail over any conflicting terms in this Agreement. The Data Processing Addendum sets out Your and FeedGap's obligations with respect to data protection and security when processing any of Your Data or Response Data that includes personal data (as defined by the GDPR).
3. Services and Acceptable Use
a. Free Trials. We may make some or all of Our Services available to You on a limited, non-exclusive, non-transferable, revocable, free trial basis for Your evaluation purposes only. WE MAY TERMINATE YOUR FREE TRIAL ACCOUNT OR ANY FEATURES OF THE SERVICES AT ANY TIME IN OUR SOLE DISCRETION WITH NO OBLIGATIONS TO YOU. WE ARE UNDER NO OBLIGATION TO PROVIDE YOU WITH RESPONSE DATA SUBMITTED BY RESPONDENTS THAT EXCEED THE LIMITS OF YOUR FREE TRIAL ACCOUNT.
b. Prerequisite to use Services. You are responsible for obtaining all hardware, software and services, which are necessary to access the Services.
c. Modification of the Services. We reserve the right to change the Site, the Services, or any features of the Services at any time and in Our sole discretion for any purpose, including but not limited to, improving performance or quality, correcting errors, or maintaining competitiveness.
d. Beta Features. From time to time, We may make certain services and/or features available to You for use which are still in their beta stage (“Beta Features”). You acknowledge and agree that Beta Features have not been fully tested and are provided on an ‘as is’ basis. You further acknowledge and agree that, to the fullest extent permitted by Law, We make no representations, warranties or guarantees in relation to such Beta Features.
e. Your Obligations. You will:
i. keep contact information for Your Account updated and promptly respond to queries from Us;
ii. be responsible for Your Users’ compliance with this Agreement;
iii. be solely responsible for the accuracy, quality, integrity and legality of the Response Data and Your Data and of the means by which You acquire Response Data and Your Data;
iv. be responsible for the content of any surveys created and/or sent using the Services;
v. use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use;
vi. be responsible for ensuring that Users’ computer systems, technology or other similar items used in connection with the Services do not interfere with or disrupt the integrity or performance of the Services;
viii. use commercially reasonable efforts to ensure that a Respondent is provided with clear and comprehensive information about, and consents to, the storing and accessing of cookies or other information on the Respondents device where such activity occurs in connection with the Service and where providing such information and obtaining such consent is required by Law;
ix. procure that each User complies with the terms of this Agreement as if they were a party to it; and
x. use the Services only in accordance with this Agreement and Laws.
f. Restrictions on Use. The Services may be accessed by no more than the specified number of Users allotted to You on Your Ordering Document. User licenses are for designated Users and cannot be shared or used by more than one User; provided, however, User licenses may be reassigned to replace former Users who no longer require ongoing use of the Services. In addition, You may not:
i. upload or provide any "special categories of personal data" (as that term is defined under the GDPR), personal health information (“PHI”), as that term is defined under the Health Insurance Portability and Accountability Act (“HIPAA”), social security numbers, driver’s license or state identification number or other government related identifier, financial account numbers (i.e., credit card, checking account, savings account, etc.), medical, employment, criminal records, or insurance numbers, passport numbers, or other highly sensitive personally identifiable information (collectively, “Sensitive PII”) to the Services or use the Services to collect, transfer, or store any Sensitive PII;
ii. copy, modify, distribute, sell, resell, rent, lease, translate, or create derivative works of the Services or any part of Our Services;
iii. reverse engineer, reverse assemble, decompile, or attempt to discover or extract the source code of Our any part of Our software;
iv. access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services;
v. use the Services to store or transmit material in violation of third-party privacy rights;
vi. use the Services to store or transmit Malicious Code;
vii. interfere with or disrupt the integrity or performance of the Services or third-party data contained therein;
viii. hack, violate, attempt to violate, attempt to gain unauthorized access to the Services or their related systems or networks;
ix. attempt to gain unauthorized access to the Services or their related systems or networks;
x. remove or alter any trademark, logo, copyright or other proprietary notices associated with the Services; or
xi. use the Services to store or transmit material in violation of any third-party rights, including a third party’s Intellectual Property Rights and/or privacy rights.
g. SPAM-Specific Obligations. FeedGap strictly prohibits the sending of any unsolicited commercial email, commonly known as SPAM in conjunction with FeedGap’s functionality. Spam, as used herein, is any email sent by You or a User to someone for whom You do not have the recent (obtained within the last 18 months) and necessary permissions or consents required by applicable Law to contact via email. To the extent that a User uses FeedGap within emails, You agree, and shall ensure that Users agree:
i. to import, access or otherwise use only email lists for which You have obtained all necessary permissions and consents required by applicable Law;
ii. all such emails must contain an unsubscribe link that allows subscribers to instantly remove themselves from future emails;
iii. Users shall not remove, disable or attempt to remove or disable the unsubscribe link;
iv. not to: a) engage in any spamming activity via the Services, b) mail to distribution lists, newsgroups, or spam email addresses, c) access or otherwise use third-party mailing lists in connection with preparing or distributing unsolicited email to any third party, d) send email surveys that link to or display nudity, obscene content, gambling related content, payday lender related content, pharmaceutical related content, illegal software, viruses, or to distribute any other content that We, in Our sole discretion, deem inappropriate, e) transmit or solicit any material that violates or causes FeedGap to violate any applicable local, state, federal, and international Laws and regulations (which may include material that is obscene, threatening, harassing, libelous), f) violate any U.S or other applicable marketing, spamming, junk mail or other related Laws or regulations prohibiting or discouraging unsolicited e-mail, g) use the Services for any unlawful purposes or in any way that violates the intellectual property rights or any other rights of a third party; and
v. You will ensure that emails sent do not generate abuse complaints in excess of industry norms. We may, in Our sole discretion, determine whether any abuse complaints resulting from Users’ use of the Services are within industry norms, and Our determination shall be final, binding and conclusive for all purposes under this Agreement. We may immediately suspend access to the Services without refund if We believe in Our sole discretion that a User has violated any of the email and permission practices listed above.
h. If FeedGap determines, in its sole discretion, that a User has violated the provisions of this Section 3.g (SPAM-Specific Obligations), FeedGap reserves the right to suspend Your access to the Services.
i. No Obligation to Monitor. You acknowledge and agree that FeedGap has no obligation to monitor use of the Services or the content provided by You, Users, or Respondents. Notwithstanding the foregoing, FeedGap may monitor Your, Users’, and Respondents’ use of the Services and may remove any content or prohibit any use of the Services that We believe violates this Agreement.
4. Third Party Services.
If You or a User enables, installs, or connects any Third-Party Services for use with the Services, You thereby:
a. acknowledge and agree that access and use of such Third Party Services are governed solely by the terms and conditions made available by such Third Party Service providers, and FeedGap does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third Party Services, including, without limitation, their content or the manner in which they handle, protect, manage or process data (including Your Data and Response Data) or any interaction between You or a User and the provider of such Third Party Services.
b. acknowledge and agree that FeedGap does not guarantee the continued availability of such Third Party Service features and makes no representation or warranty regarding such Third Party Services or integrations to such Third Party Services.
c. acknowledge and agree that FeedGap may cease enabling access to them without entitling You to any refund, credit, or other compensation, if, for example and without limitation, the provider of a Third Party Service ceases to make the Third Party Service available for interoperation with the corresponding Services in a manner acceptable to FeedGap.
d. hereby permit the transmission of and access to Your Data and Response Data to such Third Party Services.
e. grant to FeedGap and its Subcontractors a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable right and license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, and prepare derivative works of any data transmitted to or obtained by FeedGap from any Third Party Service enabled, installed, or connected to the Services by You and represent and warrant that doing do so will not violate Laws or any third party's privacy, Intellectual Property Rights, or other rights.
f. agree that FeedGap is not liable for: a) damage or loss caused or alleged to be caused by or in connection with Your or Users enablement, access, or use of any Third Party Services, or b) Your reliance on the privacy, data security, or other practices of such Third Party Services.
g. irrevocably waive any claim against FeedGap with respect to such Third Party Services.
h. agrees to comply with any requests by FeedGap to remove any connections to or from other websites and/or applications to the Services which You or Users install.
a. Payment of Fees. Unless otherwise listed on Your Ordering Document, You agree to pay FeedGap, LLC up front via credit card all applicable fees in U.S. Dollars for Services You purchase or use in accordance with the terms listed on Your Ordering Document and this Agreement. You agree to provide accurate payment information, and hereby authorize Us to charge such credit card for all fees set forth in the Ordering Document for the duration specified therein (and any renewal thereof). Payments are due for any billing period on the same date, or the closest date in that billing period, to the day You signed up for the Services and made Your first payment. If any part of a billing period is included in the term, then payment is due for the full billing period.
b. Usage-based Features. You acknowledge that fees for certain features of the Services may be assessed based on Users actual usage of those features. You agree that You will be responsible for payment for Users’ usage of any such features.
c. Upgrades and Add-Ons. You and/or Users may upgrade the Services or order Add-On Features at any time by using the Add-On Feature or executing an Ordering Document for the upgrade or Add-On Feature. You agree to pay fees for the upgrade and/or Add-On Feature for the remainder of the Order Term, and any renewals of the Order Term. In addition, You acknowledge and agree that if You exceed the number of Users allotted to You in accordance with Your Ordering Document for Production Connections, then We reserve the right to charge You for each additional User using a Production Connection at the then-current list price.
d. Late Payment. If any amount due is not received by the due date, then without limiting FeedGap's rights or remedies, FeedGap may (a) assess a late fee of 1.5% of the outstanding balance per month, or the maximum rate permitted by Law, whichever is lower, from the date such payment was due until the date paid; (b) accelerate the payment of any Fees payable; (c) immediately suspend Your access to the Services until payment is made; (d) terminate Your Account if You fail to provide payment within ten (10) business days of receiving a notice of non-payment; and/or (e) condition future subscription renewals and Ordering Documents on pre-payment or payment terms shorter than those specified in the Ordering Document.
e. Fees at Renewal. We reserve the right to change fees for any Services at the time of renewal and You are responsible for reviewing the fees prior to renewal, provided no fee change will be effective until renewal of that Service (unless the fees in the prior period were designated in the applicable Ordering Document as promotional or ‘one-time’). Upon renewal, You will automatically be charged in accordance with the payment method specified on Your Ordering Document for Your renewal unless You upgrade, downgrade, or terminate Your account in accordance with this Agreement.
f. Taxes. All fees stated in the Ordering Document are exclusive of any applicable taxes. You shall pay any sales, use, value added, excise, property withholding or similar tax, duties, and any related tariffs, and similar charges applicable to Your purchase of the Services assessable by any local, provincial, federal, or foreign jurisdiction and shall include any related penalties or interest, except taxes based on FeedGap, LLC's net income (“Your Taxes”). You shall pay Your Taxes with no reduction or offset in the amounts payable to FeedGap, LLC hereunder. You will, and hereby agree to, promptly reimburse FeedGap, LLC for any and all Your Taxes (and any applicable penalties) that FeedGap, LLC may be required to pay in connection with this Agreement upon receipt of FeedGap, LLC's invoice therefore.
g. Reactivation Fee. FeedGap may charge a re-activation fee to re-activate an account that has been suspended.
h. No Refunds. Except as otherwise provided in this Agreement or required by Law, We will not provide refunds or credits for partial periods of service, downgrade refunds, or refunds for periods unused.
The Parties acknowledge that in the course of performing their obligations under this Agreement, each party (a “Receiving Party”) may receive information that is either clearly marked as “confidential” or nonpublic information which, under the circumstances surrounding the disclosure, a reasonable person would clearly conclude should be treated as confidential (“Confidential Information”) from the other party (a “Disclosing Party”). Receiving Party covenants and agrees that neither it nor its agents, employees, officers, directors or representatives will disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (a) to those employees, representatives, or contractors of the Receiving Party who require access to the Confidential Information to exercise its rights under this Agreement and who are bound by confidentiality obligations, or (b) as such disclosure may be required by Law or governmental regulation, subject to the Receiving Party providing to the Disclosing Party written notice to allow the Disclosing Party to seek a protective order or otherwise prevent the disclosure. Nothing in this Agreement will prohibit or limit the Receiving Party’s use of information: (i) previously known to it without obligation of confidence, (ii) independently developed by or for it without use of or access to the Disclosing Party’s Confidential Information, (iii) acquired by it from a third party that is not under an obligation of confidence with respect to such information, or (iv) that is or becomes publicly available through no breach of this Agreement.
7. Privacy and Security
a. Privacy Notice. Your privacy is important to Us. Please read our Privacy Notice, located at www.FeedGap.com/privacy, as it explains how We handle Your Data and protect Your privacy when You use Our Services.
b. HIPAA and Sensitive PII. You understand and acknowledge that neither the Services provided nor systems are configured to receive and store Sensitive PII and that We are neither a “Covered Entity” nor a “Business Associate,” as those terms are defined in HIPAA. As such, You agree, and shall ensure that Users agree, not to directly or indirectly, use, provide access to, submit, collect, store, or include any Sensitive PII when using the Services or requesting technical and/or support services. You agree that We may terminate this Agreement immediately, if You or any Users are found to be in violation of this Section.
c. Your Password. You are solely responsible for keeping account credentials, including User names, passwords, and any other login credentials confidential and for any and all activities that occur within Your Account, whether authorized by You or not. You must notify Us immediately of any unauthorized access or use of Your Account. We will not be held responsible or liable for any losses due to lost or hacked passwords.
8. Intellectual Property
a. Ownership and License of the Services. As between the parties and subject to the limited license expressly granted under this Agreement, FeedGap and/or its licensors own all right, title and interest in and to the Services, Service-related feedback and suggestions, all related software, technology, documentation, and all of Our content provided in connection with the Services, including all intellectual property rights in the foregoing. Subject to Your compliance with the terms of this Agreement, during the Order Term, We grant You a non-exclusive, non-transferable, revocable, non-sublicensable right to access and use the Services. You shall not (and You shall not permit any third party to): (i) access the Services except as permitted in the Agreement, (ii) create derivative works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than in connection with Your permitted use of the Services for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services. No rights are granted to You other than as expressly set forth in the Agreement.
b. Your Data. As between the parties and subject to the license expressly granted under this Agreement, You and/or Your licensors own all right, title and interest in and to Your Data, including all intellectual property rights in the foregoing. By submitting Your Data to Our Services, You give Us and our Subcontractors a worldwide, royalty-free, fully paid up, non-exclusive, irrevocable, perpetual, transferable, and sublicensable right and license to use, host, store, reproduce, modify, create derivative works (such as changes FeedGap makes to Your Data so it works better with Our Services), communicate, publish, publicly perform, publicly display and distribute Your Data, but only for the limited purposes of providing the Services and as otherwise permitted under the Data Processing Addendum. You represent and warrant that You have all rights to grant the foregoing licenses to FeedGap and its Subcontractors without infringement or violation of moral rights or any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other Intellectual Property Rights. FeedGap will not use any of Your Data for any purposes other than those related to the Services and described in the Data Processing Addendum.
c. Response Data. Response Data is generated by a Respondent’s use of the Services. FeedGap shall retain all ownership right title, and interest in the Response Data (including any Intellectual Property Rights), including Response Data associated with any Free Trials, until it receives payment of fees associated with Response Data. Subject to Your payment of fees, FeedGap hereby transfers all ownership, right, title and interest in and to Response Data, including all intellectual property rights in the foregoing. FeedGap its Subcontractors shall retain a worldwide, royalty-free, fully paid up, non-exclusive, irrevocable, perpetual, transferable, and sublicensable license to use, host, store, reproduce, modify, and create derivative works of (such as changes FeedGap makes to Response Data so it works better with Our Services) Response Data, but only for the limited purposes of providing the Services and as otherwise described in our Privacy Notice. You represent and warrant that You have all rights to grant the foregoing licenses to FeedGap and its Subcontractors without infringement or violation of moral rights or any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other Intellectual Property Rights. FeedGap will not use any Response Data for any purposes other than those related to the Services and described in the Data Processing Addendum.
d. User Data. In addition, while using the Services, You and/or Users may provide information (such as a User’s name, contact information, and/or other registration information) to FeedGap. You agree to, and agree and warrant that You have the necessary consents to, permit FeedGap to use this information and any technical information about User’s use of the Services for the limited purposes of tailoring the user experience of the Services to the User, facilitating Users’ use of the Services, and communicating with You and/or the User.
e. Feedback. You and/or Users may provide feedback, suggestions, and/or comments to Us regarding the Services (“Feedback”). We shall have all ownership right, title, and interest in such Feedback. Notwithstanding the foregoing, to the extent that any Feedback is deemed to be owned by You, You hereby grant to Us irrevocable, fully-paid up, non-exclusive, royalty-free, perpetual, worldwide, sublicensable and transferable license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, create derivative works of, publicly perform, publicly display, and otherwise fully exploit such Feedback in any medium or format, whether now known or later developed; provided that such Feedback is anonymous.
f. Publicity. Unless otherwise agreed by the parties, You hereby agree that FeedGap may reference You in marketing and public relations materials, including a press release announcing You as a customer. You hereby grant FeedGap a nonexclusive, worldwide license to use and display Your trademarks, trade names and logos in connection with the foregoing.
9. Representations and Warranties
a. General Representations and Warranties. You represent and warrant that: (a) You have the legal power and authority to enter into this Agreement, and doing so will not violate any other agreement to which You are a party; (b) You will not transmit any Malicious Code in connection with the Services; (c) You have the right and authority and have provided notice and obtained (or shall obtain) all necessary rights and consents required by all applicable Laws to lawfully use and share Your Data in connection with the Services; (d) Your Data and other data and content used by You in connection with the Services shall not infringe the Intellectual Property Rights or any other third-party rights; and (e) You will comply with all Laws in Your performance of this Agreement, including, without limitation, Laws relating to obscenity, defamation, individual privacy, spamming, and the distribution of email.
b. Personal Information. You further represent and warrant that: (i) You have provided all required notices to and obtained all required permissions and consent from any individual whose personal information is collected via FeedGap (including, without limitation, that of Respondents) and/or provided to FeedGap by You or Users; (ii) You have informed all persons whose information is collected: 1) of the purpose for which that information was collected, 2) that You may provide this information to Your service providers for the purposes of use in relation to the Services, and 3) that such information may be processed and/or stored by Your service providers on servers located in the United States of America; and (iii) You have obtained any required consent of such persons for processing of their personal information by Your service providers in the foregoing manner.
a. From time to time, You and/or Users may obtain advice or information from FeedGap help or support pages, white papers, and/or FeedGap’s employees (collectively, “Advice”). You acknowledge and agree that: 1) such Advice will not be deemed to constitute financial, legal, or tax advice; 2) any Advice is provided strictly “as is” and that FeedGap makes no warranty or representation of any kind regarding the accuracy or quality of such Advice; and 3) use of and reliance on any such Advice is at Your own risk and You release FeedGap entirely of all responsibility for any consequences of its use of and reliance on any such Advice. You should seek the advice of Your own advisers prior to acting upon any such Advice.
b. You acknowledge that temporary interruptions in the availability of the Services may occur from time to time as normal events. You also acknowledge the Services may include technical inaccuracies or typographical errors. Under no circumstances will We be held liable for any damages due to such interruptions, inaccuracies, or typographical errors.
c. PLEASE NOTE THAT DOWNGRADING YOUR ACCOUNT MAY RESULT IN THE LOSS OF CONTENT, FEATURES, OR CAPACITY OF YOUR ACCOUNT. WE DO NOT ACCEPT ANY LIABILITY FOR ANY SUCH LOSSES.
d. USE OF THE SERVICES AND ANY RELIANCE BY YOU ON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. ALL SERVICES ARE PROVIDED TO YOU ON AN AS-IS BASIS. FEEDGAP DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, INCLUDING FOR NONINFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY, AND FITNESS FOR PURPOSE OR A PARTICULAR PURPOSE. FEEDGAP MAKES NO PROMISES, GUARANTEES, REPRESENTATIONS, OR WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, THAT (1) THE SERVICES ARE RELIABLE, ACCURATE, OR COMPLETE; (2) THE SERVICES WILL BE FREE OF ERRORS OR OMISSIONS; (3) THE SERVICES WILL BE UNINTERRUPTED OR THAT ANY DEFECTS WILL BE CORRECTED; (4) THE SERVICES WILL BE FREE OF VIRUSES, CONTAMINATION, OR DESTRUCTIVE FEATURES, OR (5) THE SERVICES WILL MEET YOUR BUSINESS NEEDS, REQUIREMENTS OR EXPECTATIONS.
a. Your Indemnity. You agree to defend, indemnify and hold FeedGap, its officers, directors, shareholders, successors in interest, employees, agents, subsidiaries and affiliates harmless from any third-party claims losses damages, liabilities, settlements, and expenses, (including, but not limited to attorney fees) (collectively, "Claims") related to, arising from, or connected with: 1) Your and/or Users’ breach of this Agreement or any representation or warranty made by You herein; 2) Your Data or Response Data (including, without limitation, Claims alleging that the Your Data or Response Data violates or misappropriates the privacy rights, Intellectual Property Rights, or other Intellectual Property Rights, or other rights of any third party), 3) Users’ use of the Services, or use of the Services by a third party that gained access to the Services due to Your and/or Users’ negligence. Notwithstanding the foregoing, neither You nor Users shall make any admissions on behalf of FeedGap or settle any claim without FeedGap’s consent.
b. FeedGap’s Right to Defend. Promptly upon learning of any Claim arising from or related to allegations that the Services violate or infringe a third-party’s Intellectual Property Rights (“IP Claim”), You must give notice to FeedGap of any such IP Claim. FeedGap shall have the exclusive right, but no obligation, to assume defense of such IP Claim at any time and at any stage. If FeedGap assumes defense of any such IP Claim, You must: 1) cooperate in the defense thereof as reasonably requested by FeedGap; and 2) immediately deliver to FeedGap all original notices and documents (including court papers) received in connection with and/or related to the IP Claim. Upon assuming the defense of an IP Claim, FeedGap may appoint any legal counsel selected by FeedGap and settle any IP Claims on such terms and conditions that We deem advisable. You agree that if We assume the defense of the IP Claim, We will not be liable to You for any legal costs or expenses subsequently incurred by You in connection with the analysis, defense or settlement of such IP Claim. You acknowledge and agree that the assumption of the defense of an IP Claim by FeedGap is not an acknowledgment, and will not be construed as an acknowledgment, that We are liable to indemnify You in respect of the IP Claim, nor will it constitute a waiver by FeedGap of any defenses it may assert against You if You claim You are owed indemnification for such IP Claim.
12. Limitation of Liability
a. IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF OPPORTUNITY, LOSS OF ANTICIPATED SAVINGS, LOSS OF GOODWILL, LOSS OF YOUR DATA, LOSS OF RESPONSE DATA, OR LOSS OF ANY DATA RELATED THERETO, OR ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OR ARE OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU AGREE THAT THE CONSIDERATION WHICH WE CHARGE HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY US OF THE RISK OF YOUR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
b. IN NO EVENT WILL OUR TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED A SUM EQUAL TO THE LESSER OF: THE COST OF HAVING THE SERVICES SUPPLIED AGAIN, OR REFUND OF FEES ACTUALLY PAID FOR THE SERVICES IN THE TWELVE MONTHS PRECEDING THE APPLICABLE CLAIM GIVING RISE TO LIABILITY. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU AGREE THAT OUR LIABILITY TO YOU WILL BE REDUCED BY THE EXTENT, IF ANY, TO WHICH YOU CONTRIBUTED TO THE LOSS. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE SERVICES AVAILABLE TO YOU, AND THAT, WERE WE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.
c. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES.
13. Term, Termination, and Survival
a. Term. The term of this Agreement will commence on the Effective Date and, unless earlier terminated in accordance with this Agreement, will continue to apply to any use of the Services by Users. Except as specified in the applicable Ordering Document or as may be prohibited by Law, the Ordering Document and all non-expiring items added during the course of the Order Term, shall automatically renew for additional periods equal in duration to the Order Term or one year (whichever is greater), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the Order Term (or, if applicable, any renewal of the Order Term. For clarity, any additional items added mid-term shall renew upon the renewal of the Initial Ordering Document unless such items are specifically stated as non-auto-renewing items.
b. Termination. Either party may terminate this Agreement or any individual Ordering Document as follows: (a) for cause if the other party materially breaches this Agreement or an Ordering Document and does not remedy such breach within thirty (30) days after its receipt of written notice of such breach; (b) immediately if the other party: (i) terminates its business activities or becomes insolvent, (ii) admits in writing to the inability to pay its debts as they mature, (iii) makes an assignment for the benefit of creditors, or (iv) becomes subject to direct control of a trustee, receiver or similar authority (“Termination for Cause”). You agree that We will not be liable to You or to any third party for termination of Users’ access to the Services resulting from any violation of this Agreement by Users. In addition, We may terminate this Agreement or any individual Ordering Document for our convenience at any time at Our discretion by providing You with written notice and a refund for any future billing cycles that You have prepaid Us for; provided, for clarity, the foregoing will not apply to any Termination for Cause by FeedGap.
c. Right to Suspend. We may suspend Your Account at any time without notice for: 1) conduct that violates this Agreement or other agreements or guidelines which may be associated with Users’ use of the Services; 2) Your non-payment or untimely authorization of payment; or 3) Your and/or Users’ violation or alleged violation of any Laws.
d. Effect of Termination. Upon any expiration or termination of this Agreement: (a) Users’ right to use the Services shall cease, and We will have no further obligation to make the Services available to Users; (b) except as otherwise expressly stated herein, all rights and licenses granted to You and/or Users under this Agreement will immediately cease; (c) You will pay fees for the entire Order Term under all Ordering Documents in effect prior to the termination date, less any fees already paid pursuant to such Ordering Documents; and (d) FeedGap may delete any of Your Data and/or Response Data within 30 days after the date of expiration or any termination of this Agreement. Any statutory retention requirements with respect to such data remain Your responsibility.
e. Survival. All sections of this Agreement which by their nature should survive termination or expiration of this Agreement will survive termination or expiration of this Agreement, including, without limitation: Sections 1 (Definitions), 2 (Agreement Structure), 3.d (Beta Features), 3.h (No Obligation to Monitor), 4 (Third Party Services), 5 (Fees), 6 (Confidentiality), 7 (Privacy and Security), 8 (Intellectual Property), 9 (Representations and Warranties), 10 (Disclaimers), 11 (Indemnification), 12 (Limitation of Liability), 13.d (Effect of Termination), 13.e (Survival), 14 (Federal Government End User Provisions), and 15 (General Provisions). In addition to the foregoing, this Agreement will continue to apply to any use of the Services by Users.
14. Federal government End User Provisions
If the end user of the Services is the federal government (including any federal agency), then the following shall apply: (a) Government technical data and software rights related to the Services include only those rights described herein; and (b) if a government agency has a need for rights not conveyed under this Agreement, it must negotiate with FeedGap to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement. The Services and Site, including all documentation, are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, and consist of "Commercial Computer Software" and "Commercial Computer Software Documentation."
The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users:
1. only as Commercial Items,
2. with the same rights as all other end users, and
3. according to this Agreement.
15. General Provisions
. Notices. Any notice to You will be effective when We post it to Your Account or send it to the last email or physical address associated with Your Account. Any notice to Us will be effective when delivered to Us: Attn. Legal Notices, FeedGap, LLC, to email@example.com as we may later post on the Site.
a. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. No rights for third-party beneficiaries are created by this Agreement.
b. Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by You, by operation of Law or otherwise, without the prior written consent of FeedGap. This Agreement may be assigned or transferred by FeedGap without consent. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
c. DCMA. We respect the intellectual property rights of others and expect Our Users to do the same. We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the US Digital Millennium Copyright Act ("DMCA"). If copyrighted Content that belongs to you was posted without your permission to Our Site or sent through one of Our Services, let Us know. Please send notice of the alleged infringement to Our designated agent at the following email address:
Attn: Copyright Agent
i. Your notice should provide the following information:
1. an electronic or physical signature of the copyright owner or someone authorized to act on their behalf;
2. the name, address, telephone number, and email address of the copyright owner;
3. identification of the copyrighted work that is allegedly being infringed;
4. identification of where the allegedly infringing material is located on Our Site or Services;
5. a statement that you have a good faith belief that the use is not authorized by the copyright owner, its agent or the law; and
6. a statement that the information in your notice is accurate, and you are authorized to act on behalf of the copyright owner. This statement must be made under penalty of perjury.
ii. By submitting the notice, you acknowledge and agree that We may forward the information to the person who uploaded the allegedly infringing material. If you believe that your removed or disabled Content is not infringing, or that you have the authorization or right to post and use that Content from the copyright owner, the copyright owner's agent, or pursuant to law, you may send a counter-notice containing the information required by Section 512(g)(3) of the DMCA (17 U.S.C. § 512(g)(3)). We will forward your counter-notification to the party who submitted the original copyright infringement claim. If the original claimant does not file an action seeking a court order to restrain you from engaging in infringing activity related to the removed or disabled Content within fifteen (15) calendar days of receiving the counter-notice from Us, then We may, in Our sole discretion, reinstate the removed or disabled Content.
d. Force Majeure. We will not be liable for any delays or failure in performance of any part of the Services, from any cause beyond Our control. This includes, but is not limited to, acts of God, changes to Law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, floods, strikes, power blackouts, and acts of government, hackers or third-party internet services providers.
e. Governing Law. The Laws of Illinois, USA, will apply to any and all disputes arising out or relating to the Services or this Agreement (“Disputes”).
f. Export Regulations. You will comply with all Laws and regulations controlling the export of certain commodities and technical data, including without limitation all Export Control Regulations of the United States Department of Commerce. Among other things, these Laws and regulations may prohibit or require a license for the export of certain types of commodities and technical data to specified countries.
g. Disputes. YOU AND FEEDGAP, LLC AGREE THAT ANY DISPUTE AGAINST THE OTHER MAY ONLY BE BROUGHT ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND YOU ARE FOREGOING A JURY TRIAL AND WAIVING ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST FEEDGAP, LLC If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). All Disputes shall be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) or JAMS (www.jamsadr.org) according to this provision and the applicable arbitration rules for that forum. Consumer claimants (individuals whose use of the Services is intended for personal, family, or household use) may elect to pursue their claims in their local small-claims court rather than through arbitration. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. If You are a consumer bringing a claim relating to personal, household, or family use, any arbitration hearing will occur within the county or parish where You reside. Otherwise, any arbitration hearing will occur in San Francisco, California, or another mutually agreeable location. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. For any Dispute, FeedGap, LLC will pay all the arbitration fees. If You prevail on any claim for which You are legally entitled to attorney’s fees, You may recover those fees from the arbitrator. For any claim where You are seeking relief, FeedGap, LLC will not seek to have You pay its attorney’s fees, even if fees might otherwise be awarded, unless the arbitrator determines that Your claim was frivolous. For purposes of this arbitration provision, references to You and FeedGap, LLC also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized Users or beneficiaries of FeedGap, LLC Services.
h. Severability. If any provision of this Agreement is held invalid, illegal or otherwise unenforceable, it shall be deemed modified to render such provision enforceable while preserving the Parties’ original intent to the fullest extent permissible, and the rights and obligations of the parties shall be construed and enforced accordingly. If any such provision cannot be modified in accordance with the foregoing, then that provision will be deemed severed from this Agreement and all other provisions will be unaffected and will remain in full force and effect.
i. Waiver. Any waiver by Us must be in writing. No waiver by Us of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No failure or delay by Us in enforcing any right or provision under this Agreement shall be construed as a waiver of such right or provision or of any other right or provision.
j. Interpretation and Execution. The headings in the Agreement do not affect its interpretation. References to sections are to sections of this Agreement. This Agreement and any Ordering Document may be executed in one or more counterparts, each of which when so executed and delivered or transmitted by facsimile, e-mail or other electronic means, shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument. A facsimile or electronic signature is deemed an original signature for all purposes under this Agreement and any Ordering Document.
Updated November 29, 2018