Retailer Terms – CI Where-to-Buy
| 2011/10/14 |
Channel Intelligence, Inc. ("CI") provides services that enhance the online and offline sales process among manufacturers, retailers and consumers, including CI's Where-to-Buy ("WTB") service. This agreement, including the terms and conditions set forth in Exhibit "A" attached hereto and made a part hereof, shall govern the undersigned retailer's participation in CI's WTB service.
Channel Intelligence's WTB Service
CI's WTB service consists of display pages ("WTB Pages") that are accessible through the web sites of participating product manufacturers ("Participating Manufacturers"). Retailers participating in CI's WTB service ("Participating Retailers") are given the opportunity to advertise their product offers on CI's WTB Pages. A visitor to a WTB Page may click on a product offer to view the product offer on the web site of the advertising Participating Retailer. Information respecting product offers for sale, including price and availability, is submitted by each Participating Retailer to CI electronically and optimized for display on applicable WTB Pages. CI uses this information to display multiple retail offers for the same product on relevant WTB Pages.
Participation Options
Each Participating Retailer can select the WTB Pages on which, and product categories in which, its product offers will be displayed.
Each Participating Manufacturer may determine which retailer offers will appear on its WTB Page, the order in which retailer offers will be presented on its WTB page and which details respecting retailer offers will appear on its WTB page. Participating Manufacturers may elect, but are not required, to subsidize retailer participation in CI's WTB service. If a Participating Manufacturer terminates a subsidy, subsidized retailers will be given notice and the opportunity elect to continue participating in CI's WTB service without the subsidy or to terminate participation.
Fees
Each Participating Retailer will pay a fee for participation in CI's WTB service equal to the applicable percentage of Gross Revenues set forth the rate card attached hereto as Exhibit "B" (the "Rate Card"). As used herein, "Gross Revenues" includes a Participating Retailer's total online cart sales, excluding shipping and taxes, that result from, and within thirty (30) days after, a click initiated at a WTB Page (a "WTB Click"). As the exclusive method of accounting for returns, Gross Revenues shall be reduced by one percent (1%). Additional bidding or advertising fees may apply, as specified, depending upon options selected by the Participating Retailer. In some instances, CI may offer Participating Retailers the opportunity to obtain preferred placement upon a WTB Page by agreeing to pay CI fees at a rate in a higher than that specified on the Rate Card.
CI's proprietary sales tracking technology is utilized to determine each Participating Retailer's gross revenues from WTB Clicks. CI's tracking technology is required to operate on the Participating Retailer's website at all times during the Participating Retailer's participation in CI's WTB service. A charge a $.50 for each WTB Click will be assessed if the Participating Retailer disables or prevents CI's tracking technology from operating on the Participating Retailer's website. Sales data for each WTB Page is shared with the Participating Manufacturer associated with that WTB Page.
Fees will be billed on a monthly basis for sales occurring and additional services provided at the Participating Retailer's request during the preceding calendar month. Payments will be due ten (10) days from the date of the invoice. CI may assess a finance charge of up to one and one-half percent (1 ½ %) per month on the unpaid balance of any past due invoice. Failure to make timely payment of an invoice may result in suspension or termination of the Participating Retailer's participation in CI's WTB service.
Support
CI support can be reached at Support@channelintelligence.com. Support requests are routinely handled within two (2) business days.
Service Availability
CI uses redundant, geographically diverse datacenters, backed by a worldwide content distribution network in order to maintain optimal uptime. Routine service is scheduled to minimize impact, usually at 3:00 a.m. Orlando, Florida time mid-week.
General Terms & Conditions
1. PARTICIPATING RETAILER DATA.
1.1 Each Participating Retailer shall provide to Channel Intelligence, Inc. ("CI"), through the Participating Retailer's website or as CI otherwise specifies, data (the "Participating Retailer Data") respecting (a) the products and services offered for sale by the Participating Retailer to third parties and (b) sales of such products and services attributable to referrals to the Participating Retailer's website from WTB. CI will collect, compile, assemble and optimize the Participating Retailer Data and provide the commercial data management products and services described herein (the "CI Products and Services"), subject to the terms and conditions of this Agreement (the "Agreement"). In providing the CI Products and Services, CI will rely on the accuracy, completeness and currency of the Participating Retailer Data and on any other notice, instruction, list or other information furnished to CI by the Participating Retailer or its authorized agents or posted on the Participating Retailer's Website.
1.2 The Participating Retailer authorizes CI, if and to the extent necessary and appropriate to provide the CI Products and Services to Participating Retailer, (a) to collect information and copy content from the Participating Retailer's website, except for content or web pages excluded by the Participating Retailer from time to time by notice to CI, and (b) to use the information and content so collected, together with the Participating Retailer Data, to provide the CI Products and Services to the Participating Retailer. CI shall have no obligation either to validate or to update the Participating Retailer Data. CI's collection of data from the website of the Participating Retailer shall not relieve the Participating Retailer of its obligation under this Agreement to provide CI current, complete, and accurate Participating Retailer Data.
2. FEES. The Participating Retailer agrees to pay CI as described above. CI shall maintain complete and accurate records to support CI's invoices to the Participating Retailer for a period of two (2) years for each invoice. With reasonable advance notice, the Participating Retailer shall have access, during regular business hours, to such records.
3. TERM. Unless earlier terminated under Section 4, this Agreement has a term of twelve (12) months beginning on the date on which the Participating Retailer executes this Agreement (the "Subscription Date"). Each year, on the anniversary of the Subscription Date, this Agreement shall automatically renew for another twelve (12) month period unless the Participating Retailer or CI shall have given written notice of termination at least thirty (30) days prior to the end of such twelve (12) month term.
4. TERMINATION.
4.1 Either party may terminate this Agreement before the end of its term (a) upon providing the other party with thirty (30) days prior written notice, with or without cause, or (b) if the other party breaches any material obligation under this Agreement and does not cure such failure within ten (10) days of its receipt of written notice of breach.
4.2 Termination of this Agreement by either party shall not act as a waiver of any rights, remedies or obligations accruing under the Agreement prior to termination.
5. USE OF MARKS CI and the Participating Retailer hereby each grant to the other party to this Agreement a limited, non-exclusive, revocable license to use the other party's trade names, trademarks or service marks (collectively, "Marks") if and to the extent necessary and appropriate for such party to perform its obligations under this Agreement, including the use of the Participating Retailer's Marks on WTB Pages (such use referred to herein as the "Licensed Use"). Neither party will have the right to sublicense any of the other party's Marks. Each party shall have the right to review samples and to approve as to quality the Licensed Use of its Marks by the other party at no cost to the owner of the Marks. Failure of the party who owns the Marks to approve such samples within any given time shall not be deemed approval. Each party agrees that it shall promptly cease all use of any Mark owned by the other party immediately upon the request of the other party. Subject to the foregoing, each party hereto reserves all of its right, title and interest in its intellectual property rights, including trademarks, patents, copyrights, software, trade secrets and other intellectual property rights.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS.
6.1 The Participating Retailer represents and warrants to CI that: (a) Participating Retailer Data and all other information it provides or makes accessible to CI, including information on the Participating Retailer's Website, do not infringe upon the intellectual property rights (including but not limited to patent, copyright, trademark, trade secret or other proprietary rights) of any other party and are not defamatory, libelous, fraudulent, misleading, or otherwise illegal; and (b) all links from Participating Retailer's Website, and all links to Participating Retailer's Website that are provided to CI by Participating Retailer, are authorized.
6.2 CI represents and warrants to the Participating Retailer that the CI Products and Services (excluding data provided by Participating Retailers and WTB Manufacturers) do not infringe upon the intellectual property rights (including but not limited to patent, copyright, trademark, trade secret or other proprietary rights) of any other party and are not defamatory, libelous, fraudulent, misleading, or otherwise illegal.
6.3 The CI Products and Services shall (a) be provided in a good and workmanlike manner, in accordance with industry standards, and (b) accurately reflect and not misrepresent any of the information in the Participating Retailer Data provided to CI.
6.4 Participating Retailer shall utilize the CI Products and Services for its own legitimate business purposes. The Participating Retailer (a) shall not transfer, assign, distribute, license or rent the CI Products and Services to any third party, or modify, merge or otherwise combine the CI Products and Services, in whole or in part, for use by a third party, nor otherwise make the benefits of the CI Products and Services available to any third party, and (b) shall not remove or permit to be removed from CI Products and Services any notice indicating the copyright or confidential nature of ownership thereof.
6.5 Each party shall comply with all applicable governmental laws and regulations.
6.6 Each party represents and warrants that it has and shall have full right and authority to enter into this Agreement.
6.7 Nothing in this Agreement shall be deemed to restrict CI's right to provide similar or different products and services to other manufacturers, distributors and retailers.
7. INDEMNIFICATION.
7.1 Each party (the "Indemnifying Party") shall indemnify, defend and hold harmless the other party (the "Indemnified Party"), its successors and assigns and each of their respective officers, directors, agents, shareholders, employees and representatives, from and against any third party claim, demand, loss, damage, cost, or liability (including reasonable attorneys' fees) arising out of or relating to (as applicable) the: (a) breach of the Agreement by the Indemnifying Party; or (b) violation of any rights (including intellectual property rights) of any third party.
7.2 The foregoing indemnification obligations shall not apply to claims, actions or suits resulting from the negligent or wrongful acts of the Indemnified Party, its affiliates, partners, employees or agents.
7.3 The Indemnified Party shall promptly notify the Indemnifying Party in writing of any demand, action, arbitration, investigation or other proceeding brought or threatened to be brought against the Indemnified Party.
7.4 The Indemnifying Party shall defend such claim, and pay all costs and expense of such defense, including attorneys' fees (excluding any attorneys fee incurred by Indemnified Party for retaining its own counsel), and any resulting liability.
7.5 The Indemnifying Party shall be entitled to exercise exclusive control over any such defense and all negotiations for its settlement or compromise. No settlement or compromise that adversely affects the rights or obligations of the Indemnified Party, however, shall be binding on the Indemnified Party without its written consent, which consent shall not be unreasonably withheld.
8. DISCLAIMER. TO THE FULLEST EXTENT PERMITTED BY LAW, CI DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, OTHER THAN THOSE PROVIDED IN SECTION 6 OF THIS AGREEMENT.
9. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, DIRECT OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, FOR ANY CAUSE WHATSOEVER, WHETHER FORESEEABLE OR NOT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY'S LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT THAT HAS BEEN OR IS REQUIRED TO BE PAID BY THE PARTICIPATING RETAILER TO CI UNDER THIS AGREEMENT IN THE LAST TWELVE (12) MONTHS PRIOR TO THE EVENT. THE PRECEDING SENTENCE WILL NOT APPLY TO THE PARTIES RESPECTIVE INDEMNITY OBLIGATIONS SET FORTH IN SECTION 7, CONFIDENTIALITY OBLIGATIONS, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
10. NONDISCLOSURE.
10.1 All Confidential Information disclosed by one party ("Disclosing Party") to the other Party ("Receiving Party") in conjunction with this Agreement shall be held in confidence by Receiving Party in accordance with the terms of this Section 10. "Confidential Information" shall mean that information that: (a) is disclosed to Receiving Party by Disclosing Party in connection with, and during the term of, this Agreement; and (b) relates to Disclosing Party's past, present and future research, development and business activities; and (c) has been identified to Receiving Party at the time of disclosure as the Confidential Information of Disclosing Party or that a reasonable person would otherwise understand to be confidential. The term "Confidential Information" shall not mean any information which was previously known to Receiving Party without obligation of confidence or without breach of this Agreement, is publicly disclosed by someone other than Receiving Party either prior or subsequent to Receiving Party's receipt of such information, is rightfully received by Receiving Party from a third party without obligation of confidence or is independently developed by Receiving Party without use of any Confidential Information. For a period of five (5) years from the date of disclosure, Receiving Party agrees to hold all such Confidential Information in confidence and in trust for Disclosing Party and not to use such Confidential Information other than for the benefit of Disclosing Party. Except as may be authorized by Disclosing Party in writing, for such period of time, Receiving Party agrees not to disclose any such Confidential Information, by publication or otherwise, to any person other than those employees and other persons whose services Receiving Party requires to fulfill its obligations under this Agreement, who have a need to know such Confidential Information in order to provide such services, and who are bound by, and comply with, nondisclosure obligations substantially similar to the provisions of this Section. Upon termination or expiration of this Agreement, Receiving Party will deliver to Disclosing Party all written or descriptive matter, including but not limited to drawings, blueprints, descriptions, or other papers, documents, tapes, or any other media which contain any such Confidential Information. Receiving Party agrees not to make copies of any writings, documents or other media containing the Confidential Information provided to Receiving Party by Disclosing Party except when it is necessary to fulfill its obligations under this Agreement and to destroy any such copies upon termination hereof. The Participating Retailer acknowledges that the pricing and fees payable under this Agreement, and any password and login ID assigned to the Participating Retailer, shall be the Confidential Information of CI and the Participating Retailer, which may not be disclosed to any third party without the approval of both CI and the Participating Retailer. Receiving Party may disclose Disclosing Party's Confidential Information if and to the extent required by law or court order so long as, if and to the extent practicable under the circumstances, (i) Disclosing Party is given sufficient notice prior to such disclosure to allow Disclosing Party to seek a protective order or equivalent protection from disclosure; (ii) Receiving Party at all times uses diligent, reasonable efforts to limit such disclosure and obtain confidential treatment for the Confidential Information, and (iii) Receiving Party allows Disclosing Party to participate and, whenever practicable under the circumstances, assume control of any legal proceedings to seek such order or equivalent protection.
10.2 The Participating Retailer acknowledges that (i) CI utilizes anonymous data it collects from the Internet and elsewhere, including but not limited to the Participating Retailer's Website, concerning sales, inventory, pricing and transactions by manufacturers, distributors, retailers, Participating Retailers and other third parties, including transactions involving the Participating Retailer or the Participating Retailer's products or services, in connection with other CI services, and (ii) CI may utilize anonymous transactional data involving the Participating Retailer or the Participating Retailer's products as part of aggregate data collections compiled by CI in order to analyze product and service trends, monitor product and service efficiencies, and perform other analyses of products and services so long as the Participating Retailer's Confidential Information is not disclosed and cannot be deduced, inferred, derived or otherwise extracted from such aggregate data. The Participating Retailer further acknowledges that Participating Retailer has no proprietary interest in any transactional data involving third parties that is gathered or compiled by CI, nor any right to confidential treatment thereof. CI represents and warrants that CI will not gather personally identifying information concerning individual customers of the Participating Retailer or disseminate any such information.
11. RELATIONSHIP OF THE PARTIES. The parties are entering into this Agreement as non-exclusive independent contractors, and this Agreement will not be construed to create a partnership, joint venture, franchise or employment relationship between them. Neither party, nor any of their respective officers, employees or agents, will represent itself or themselves to be an employee or agent of the other or enter into any agreement on the other's behalf or in the other's name. Each party agrees to be solely responsible to pay, collect and remit all taxes as may be imposed upon such party on account of this Agreement.
12. NOTICES. Notices under this Agreement shall be given in writing, addressed to the Participating Retailer in accordance with the contact information provided with this Agreement, or to CI as detailed below, and shall be deemed to have been given: (i) one (1) day after deposit with an express overnight carrier; (ii) upon transmission by a transmission confirmed facsimile; (iii) five (5) business days after having been mailed postage prepaid by United States registered or certified mail; or (iv) upon final delivery when sent by e-mail.
Email: CI_contracts@channelintelligence.com
and/or
Address: Channel Intelligence, Inc
1180 Celebration Blvd, Suite 101
Celebration, FL 34747
Attn: Contracts Department
13. MISCELLANEOUS. (a) This Agreement shall be governed by the laws of the State of Delaware, USA without regard for its conflict of laws rules. Both parties irrevocably consent and stipulate to the jurisdiction of the State of Florida, USA over any disputes or controversies arising hereunder and agree that the federal or state courts in Florida are appropriate venues for any legal action to resolve any such disputes or controversies. (b) If any provision of this Agreement is found by a court to be unenforceable or invalid, then such provision shall be severed and the Agreement amended to the extent necessary to render same lawful or reasonable, and this Agreement shall be enforced as amended. (c) No waiver of any breach of, or performance under, this Agreement, shall be effective unless given in writing, and no waiver of any breach or performance shall be deemed a waiver of the same breach or performance in the future or of any other breach or performance. (d) No extension of time for performance of any obligation hereunder shall be deemed an extension of time for performance of any other obligations. (e) This Agreement shall be binding upon the parties hereto, and their approved successors, and assigns, provided; however, that any such successor or assign shall expressly assume in writing the performance of all the terms and conditions of the Agreement required to be performed by the assigning party, and provided further that notwithstanding the foregoing, neither party may assign this Agreement or delegate its obligations hereunder to a third party (except for affiliates) without the other party's prior written consent, which consent shall not be unreasonably withheld or delayed. (f) Neither party shall be liable for failure to perform its obligations hereunder, except the obligation to make payment, if such failure is the result of strikes, riots, fires, explosions, acts of God, war, governmental action, labor conditions, or any other cause beyond the reasonable control of such party. (g) This Agreement and the exhibits hereto, together with the related purchase orders, if any, constitute the entire understanding of the parties with respect to the subject matter hereof. (h) These General Terms and Conditions hereto may be amended by CI in its sole discretion from time to time by posting the amended General Terms and Conditions on this website. (i) The headings of the several sections herein are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement. (j) Sections 5, 6, 7, 8, 9, 10, as well as this subsection 13(j), shall survive any termination of this Agreement.
2011/10/14