Datasembly Subscription Agreement
THIS SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF THE DATASEMBLY, INC. (“DATASEMBLY”) SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND WILL BE REFERRED TO AS “YOU” OR “CUSTOMER” IN THIS AGREEMENT. DATASEMBLY AND CUSTOMER ARE HEREINAFTER REFERRED TO INDIVIDUALLY AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES”.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” AND "CUSTOMER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE DATASEMBLY SERVICES.
This agreement was last updated on October 1, 2024. It is effective between You and Datasembly as of the date You accepted this Agreement (the "Effective Date"). All section headings used herein are for convenience only and shall not be used to interpret any section of this Agreement.
- Definitions.
- “Affiliate” means, as to any individual, corporation, partnership, limited liability company, association, trust, unincorporated entity, or other legal entity (each a “Person”), any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or under common control with such Person. As used in this definition, “control” (including, with correlative meanings, “controlled by” and “under common control with”) means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise). For purposes of the Agreement, the term “Customer” shall include Customer and its Affiliates. Unless an Affiliate signs a separate Order Form, Customer shall be responsible for the actions of its Affiliates as though such Affiliate were “Customer” hereunder.
- “Agreement” includes this Subscription Agreement and any related Order Form(s), exhibits, schedules, attachments, and appendices.
- “Authorized Users” means an employee or contractor of Customer or its Affiliate who has been issued a user account to access the Software by Datasembly, in accordance with the terms of the applicable Order Form.
- “Confidential Information” means any and all technical, financial, customer, proprietary, or business data or information designated by a disclosing Party as “confidential” and all information or data concerning or related to the disclosing Party’s products, services, processes, or general business operations, and that, if not otherwise described above, is of such a nature that a reasonable person would understand or believe it to be confidential or proprietary. Customer’s Confidential Information includes, but is not limited to, any data and Customer Work Product provided by Customer to Datasembly to enable the provision and use of the Services. Datasembly’s Confidential Information includes, but is not limited to, the Data and the algorithms, processes, graphs, layout, and user interfaces within or underlying the Software.
- “Custom Work” means any modification or addition to the Software or Data created by Datasembly at Customer’s request, as set forth in an Order Form, including, but not limited to, data sets, databases, graphs, and dashboards or views within the Software not provided to all of Datasembly’s clients.
- “Customer Work Product” means any reports, analysis, graphs, or other work product created by Customer using the Services, excluding the Software, Data and/or Custom Work incorporated therein.
- “Data” means, as compiled by Datasembly or as re-compiled by Customer: (a) all of the product and pricing data provided by Datasembly, whether through the Software, file transfer, or other means, including but not limited to product identifiers, prices, price trends, promotional pricing, discontinuation data, and all other product information, and (b) all non-public information and data that is proprietary to Datasembly, including, without limitation, competitive product recognition and comparison data.
- “Fees” means the fees for the Services, as set forth in an Order Form.
- “Intellectual Property Rights” means all patents and all patent applications (including, without limitation, originals, divisions, continuations, continuations-in-part, provisional, extensions or reissues), design rights (whether registered or not and all applications for the foregoing), copyrights, database rights, applications to register any of the aforementioned rights, trade secrets, rights in unpatented know-how, rights of confidence and any other intellectual property rights of any nature whatsoever in any part of the world.
- “Order Form” means an order form signed by both Parties referencing this Subscription Agreement and describing the Services to be performed by Datasembly for Customer and any related terms. Each Order Form incorporates the Agreement by reference.
- “Services” means the Software, Data, and Custom Work provided by Datasembly to Customer pursuant to the Agreement.
- “Software” means Datasembly’s software-as-a-service solution located at app.datasembly.com, and any other Datasembly software made available in connection with the Services.
- “Term” is defined in Section 4.
- Services.
- Order Forms; Provision of Services. Customer and its Affiliates may place orders under this Agreement by signing an Order Form. Subject to the terms and conditions of this Agreement, including without limitation the payment of all applicable Fees, Datasembly shall provide the Services described in each Order Form. When an Affiliate of Customer signs an Order Form under the Agreement, the Affiliate shall be considered Customer for purposes of such Order Form and shall be bound by the terms and conditions of the Agreement.
- License Grant. Subject to the terms and conditions of the Agreement, including without limitation payment of all applicable Fees, Datasembly hereby grants to Customer a limited, non-exclusive, non-sublicensable, non-transferrable (except in connection with Section 10(h)) license during the Term to access and use the Services for Customer’s internal business purposes and the permitted use(s) set forth on the Order Form, if applicable, all in accordance with the Agreement and any related Order Form (including any additional requirements and/or restrictions as set forth in such Order Form) (the “Permitted Use”).
- Ownership.
- Services. Subject to the limited rights expressly granted hereunder, Datasembly reserves all rights, title and interest in and to the Services (and any enhancements, modifications, or derivative works thereof), including all related Intellectual Property Rights. Customer acknowledges that: (1) the Data is an original compilation protected by United States copyright laws; (2) Datasembly has dedicated substantial resources to collect, manage, and compile the Data; and (3) the Data constitutes trade secrets of Datasembly. Except for the limited rights and licenses expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to the Services.
- Customer Work Product. Customer shall own and have the right to use any Customer Work Product, subject to the restrictions set forth in this Section 2 and Customer’s confidentiality obligations set forth in Section 5 with respect to any Software, Data and/or Custom Work necessary for the use of such Customer Work Product.
- Feedback. Customer or its Affiliates may, but are not obligated to, provide suggestions, enhancement requests, recommendations, or other feedback to Datasembly (“Feedback”). Customer hereby grants, and shall cause its Affiliates to grant, to Datasembly a royalty-free, perpetual, irrevocable, sublicensable, transferable, and worldwide license to use, disclose, reproduce, license, distribute, and exploit such Feedback, and incorporate Feedback into the Services, products, technologies, documentation or any other development with no obligation to pay, attribute, license or to make available to, Customer, its Affiliate, or any third party.
- Restrictions. Customer shall only use the Services for the Permitted Use and shall not, and shall not permit its Affiliates, any Authorized User, or other third party to, make any use, distribution or disclosure of the Services that is not expressly permitted under the Agreement. Without limiting the foregoing, unless expressly permitted on an Order Form, Customer shall not, and shall not permit its Affiliates, any Authorized User, or other third party to, directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to the source code or interface protocols of the Software; (ii) copy, modify, adapt, translate, or create derivative works of the Services; (iii) reproduce, resell, distribute, rent, lease, lend, assign, distribute, publish, transfer, or sublicense the Services, or make the Services available on a “service bureau” basis, or otherwise allow any third party to use or access the Services; (iv) publish, enhance, or display any compilation or directory based upon information derived from the Services; (v) remove any proprietary notices included within the Services; (vi) use the Services for purposes of: (A) benchmarking or competitive analysis of the Services, or (B) developing, using or providing a competing software or data product or service; or (vii) introduce into the Software any software, virus, worm, “back door,” Trojan Horse, or similar harmful code. Customer, its Affiliates, and its Authorized Users shall comply with all applicable laws, rules, and regulations governing the use of the Services and shall not use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person. Customer shall restrict its access to and use of the Software to Authorized Users only and be solely responsible for its and its Affiliates and Authorized User’s use of the Services. If Customer or its Affiliate becomes aware of any unauthorized use or access to the Services or any other security incident, Customer or the applicable Affiliate shall immediately take steps to terminate the unauthorized use or access (if applicable) and promptly notify Datasembly of the same.
- Product-Specific Terms. Additional terms for Data Exports, Product Mapping, and Product Matching are included in Exhibit A.
- Additional Services. If specified on an Order Form, Datasembly will provide installation, implementation, training, support, and/or additional ancillary services.
- Payment.
- Fees. In consideration for the Services, Customer will pay to Datasembly the Fees set forth in the applicable Order Form. All Fees will be invoiced in advance and otherwise in accordance with the applicable Order Form. Unless otherwise set forth in the applicable Order Form, all Fee payments shall be made in U.S. Dollars within 30 days of the date of Datasembly’s invoice. Customer is responsible for maintaining complete and accurate billing and contact information.
- Disputes and Late Payment. If Customer disputes in good faith all or any portion of an invoice, then Customer shall timely pay to Datasembly all undisputed amounts and provide written notice to Datasembly of the amount of and basis for the dispute on or before the invoice due date, and the Parties will negotiate in good faith to resolve the dispute. If Customer fails to make any undisputed payment when due, in addition to all other remedies that may be available: (i) Datasembly may charge interest on the past due amount at the rate of one percent per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (ii) Customer shall reimburse Datasembly for all costs incurred by Datasembly in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees.
- Taxes. All Fees and other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Datasembly’s income.
- Term and Termination.
- Term. This Subscription Agreement shall become effective as of the Effective Date and shall remain in effect for a period of one year (the “Initial Term”). Thereafter, this Subscription Agreement shall automatically renew for successive one-year terms (each, a “Renewal Term” and together with the Initial Term, the “Term”). This Subscription Agreement may be terminated by either Party by providing written notice to the other Party at least 60 days prior to the end of the Initial Term or the then-current Renewal Term.
- Termination. In addition to any other express termination right set forth elsewhere in the Agreement:
- Datasembly may terminate the Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than 90 days after Datasembly's delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(d) or Section 5;
- Either Party may terminate the Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach;
- Either Party may terminate the Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or
- In the event that any law or regulation enacted, promulgated or amended after the date of the Agreement or any interpretation of law or regulation by a court or regulatory authority of competent jurisdiction after the date of the Agreement (collectively “Change in Law”) renders any provision of the Agreement illegal or unenforceable or materially affects the ability of Datasembly to perform its obligations under the Agreement, then Datasembly may request renegotiation of the applicable terms of the Agreement by written notice to Customer. Both Parties agree to negotiate in good faith an amendment that preserves the original reasonable expectation of the Parties to the extent possible in a manner consistent with the Change in Law. If no such amendment can be agreed upon in the reasonable opinion of either Party within 60 days of receipt of such notice, then Datasembly may terminate the Agreement upon an additional 30 days written notice.
- Effect of Termination. Upon expiration or earlier termination of the Agreement: (i) any outstanding Order Forms will terminate as of the effective date of the termination of this Subscription Agreement; (ii) the licenses granted hereunder will terminate and all rights to use the Services under the Agreement will immediately cease to exist; (iii) Customer must promptly discontinue all use of the Services and Datasembly’s Confidential Information, erase all copies of the Software, Data, and Custom Work and Datasembly’s Confidential Information from Customer’s computers whether or not modified or merged into other materials, and return to Datasembly, or at Datasembly’s request, destroy, all copies of the Software, Data, and Custom Work and Datasembly’s Confidential Information in Customer’s possession or control and certify in writing to Datasembly that Customer has fully complied with these requirements; and (iv) Datasembly must promptly discontinue all use of Customer’s Confidential Information, erase all copies of Customer’s Confidential Information from Datasembly’s computers whether or not modified or merged into other materials, and return to Customer, or at Customer’s request, destroy, all copies of Customer’s Confidential Information in Datasembly’s possession or control and certify in writing to Customer that Datasembly has fully complied with these requirements. Notwithstanding the foregoing, each Party shall be entitled to retain Confidential Information of the other Party solely for archival, audit, disaster recovery, legal and/or regulatory purposes, provided that any Confidential Information so retained will: (A) remain subject to the obligations and restrictions contained in Section 5; and (B) the receiving Party will not use the retained Confidential Information for any other purpose. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
- Surviving Provisions. The following provisions shall survive any termination or expiration of the Agreement: Sections 1, 2(c)-(d), 3, 4(c)-(d), 5, 6(c), 7, 8, and 9.
- Confidential Information; Data Security.
- Confidential Information. From time to time during the Term, either Party may disclose or make available Confidential Information to the other Party. Each receiving Party agrees to, and Customer shall ensure its Affiliates with access to the Services will: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of the disclosing Party’s Confidential Information as it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care; and (ii) hold the disclosing Party’s Confidential Information in strict confidence and not use, sell, copy, transfer, reproduce, or divulge the disclosing Party’s Confidential Information to any third party, except as set forth herein or to those receiving Party employees, contractors, and agents who: (A) have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder; and (B) are obligated to comply with use and non-disclosure provisions no less restrictive than those set forth in the Agreement.
- Exclusions. Confidential Information does not include any information that: (i) is rightfully known to the receiving Party without obligations of confidentiality prior to disclosure by the disclosing Party; (ii) is rightfully obtained by the receiving Party, without obligations of confidentiality or restrictions on disclosure, from any third party; (iii) is or becomes available to the public, without restrictions, other than as a result of any fault or breach of this Subscription Agreement by the receiving Party; or (iv) is independently developed by receiving Party without use of or reference to the disclosing Party’s Confidential Information; provided, however, that the Parties agree that the Data, as compiled by Datasembly or as recompiled by Customer, in whole or in part, is not publicly available and will be considered Datasembly’s Confidential Information, notwithstanding that the pricing and product information within the Data is publicly available. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (A) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (B) to establish a Party's rights under the Agreement, including to make required court filings.
- Data Security. During the Term, each Party will maintain an information security program that: (i) complies with applicable laws, rules, and regulations; and (ii) includes reasonable legal, administrative, organizational, technical, and physical safeguards and other security measures designed to: (A) protect the security and confidentiality of the Data and Confidential Information in a manner consistent with applicable industry standards; (B) protect against any anticipated threats or hazards to the security or integrity of the Data and Confidential Information; and (C) protect against unauthorized processing, loss, use, disclosure or acquisition of or access to any Data or Confidential Information.
- Personal Information. Datasembly does not collect, store, process, provide, share, or sell Personal Information in the performance of the Services, and Customer will not provide any Personal Information, other than the collection and storage of a name and email address associated with each Authorized User account. To the extent that Datasembly receives any Personal Information from Customer in the performance of the Agreement, Datasembly will: (i) only retain, use, or disclose such Personal Information for purposes of fulfilling its obligations and performing the Services under the Agreement; (ii) not collect, sell or use the Personal Information for the benefit of anyone other than Customer; (iii) implement appropriate technical and organizational security measures and technologies to prevent unauthorized access to, or use, disclosure or loss of such Personal Information; and (iv) delete all Personal Information stored on Datasembly systems once retention of such Personal Information is no longer necessary in order to perform the Services. For purposes of the Agreement, “Personal Information” means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular natural person.
- Warranties.
- General Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized and validly existing under the laws of its jurisdiction of incorporation or formation; (ii) it has full corporate or other power and authority to enter into the Agreement and to carry out the provisions hereof; and (iii) it is duly authorized to execute and deliver the Agreement and to perform its obligations hereunder, and the person or persons executing the Agreement on its behalf has been duly authorized to do so by all requisite corporate or partnership action.
- Datasembly Representations and Warranties. Datasembly further represents and warrants that: (i) the Software and Data will conform to the written description set forth in the applicable Order Form and any written specifications or documentation provided by Datasembly to Customer; and (ii) any Custom Work will be performed in a professional and workmanlike manner in accordance with generally accepted industry practices and standards.
- Warranty Disclaimer. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND, EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 6, DATASEMBLY HEREBY DISCLAIMS ALL WARRANTIES (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE), INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AVAILABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. DATASEMBLY DOES NOT WARRANT THAT THE SERVICES WILL (I) MEET THE REQUIREMENTS OF CUSTOMER OR ACHIEVE CUSTOMER’S INTENDED RESULT, (II) BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, (III) BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE, OR (IV) OPERATE WITHOUT INTERRUPTION.
- Indemnification.
- Datasembly Indemnification. Subject to the terms of the Agreement, Datasembly shall indemnify, defend, and hold harmless Customer, its directors, officers, employees, successors, and assigns, from and against any and all losses, liabilities, damages, claims, demands, litigation, expenses and liabilities (including related costs and reasonable attorneys’ fees) arising or resulting from a claim brought by a third party that the Software, as delivered by Datasembly, infringes the Intellectual Property Rights of any third party under the laws of the United States. If the Software becomes, or, in Datasembly's opinion, is likely to become, the subject of an infringement claim, Datasembly may, at its option: (i) procure for Customer the right to continue using the Software; (ii) replace or modify the Software to make it non-infringing; or (iii) if neither (i) nor (ii) are commercially reasonable, terminate the Agreement (including all Order Form(s)) and refund any applicable prepaid but unused Fees to Customer.
- Indemnification Procedure. Customer shall give Datasembly prompt written notice of any claim that it is indemnified against hereunder; provided that any failure to give such notice shall not affect Datasembly’s indemnification obligations unless its ability to provide such indemnification is prejudiced in any material respect thereby. Datasembly shall have the right at any time during which such claim is pending to select counsel to defend and control the defense thereof and settle any claims for which it is responsible for indemnification hereunder and Customer is required to cooperate and, at Datasembly’s request and expense, assist in such defense. Customer shall also have the right to participate, at its own expense, with counsel of its own choosing in the defense and/or settlement of the claim. Notwithstanding the foregoing, Datasembly shall not effect settlement of or compromise any such claim or proceedings without having obtained Customer’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed; provided that Datasembly may settle or compromise any such claim without Customer’s consent if the settlement or compromise: (i) requires solely the payment of money damages, and (ii) includes the release by the claimant or the plaintiff of Customer from all liability in respect of such claim.
- Indemnification Limitations. Notwithstanding the foregoing, Datasembly will have no obligation under this Section 7 or otherwise with respect to any infringement claim based upon: (i) any use of the Software not in accordance with the Agreement; (ii) any use of the Software in combination with products, equipment, software, or data not supplied or approved in writing by Datasembly if such infringement would have been avoided but for the combination with other products, equipment, software or data; (iii) any use of a prior release of the Software after a more current release has been made available to Customer; or (iv) any modification of the Software by any person other than Datasembly or its authorized agents or subcontractors or as approved in writing by Datasembly.
- THIS SECTION 7 STATES DATASEMBLY’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY CLAIMS THAT THE SOFTWARE INFRINGES INTELLECTUAL PROPERTY RIGHTS.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR (i) LOSS OF USE OR INTERRUPTION OF BUSINESS, (ii) INACCURACY OR CORRUPTION OF DATA (iii) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, DATA, RIGHTS, OR TECHNOLOGY, OR (iv) ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DATASEMBLY’S AGGREGATE LIABILITY UNDER THE AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID TO DATASEMBLY, PLUS THOSE THEN DUE AND OWING TO DATASEMBLY (BUT UNPAID), UNDER THE ORDER FORM OR SOW UNDER WHICH THE LIABILITY AROSE DURING THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
- General Provisions.
- Governing Law and Venue. The Agreement will be deemed to have been made in and shall be construed pursuant to the laws of the State of Delaware, without regard to conflicts of laws provisions. Any legal action or proceeding arising under the Agreement will be brought exclusively in the federal or state courts located in the State of Delaware, and the parties hereby consent to the personal jurisdiction and venue therein.
- Export. Customer shall comply with all export laws, rules, and regulations of the United States and any other applicable jurisdiction pertaining to the Services. Customer agrees that it will not directly or indirectly, export, re-export, import, or otherwise transfer the Services or related information, media, or products in violation of any applicable laws, rules, and regulations, including but not limited to those of the United States (collectively, “Export Laws”). Customer accepts sole responsibility to ensure that Customer, its Affiliates, and its Authorized Users comply with the Export Laws applicable to Customer, its Affiliates, and its Authorized Users.
- Independent Contractor. Datasembly shall perform its obligations hereunder as an independent contractor. Nothing contained herein shall be construed to constitute the Parties as principal and agent, employer and employee, partners or joint venturers, nor shall any similar relationship be deemed to exist between the Parties. Neither Party shall make any warranties or representations on behalf of the other Party. Each Party shall be solely responsible for payment of all compensation owed to its employees, as well as employment-related taxes.
- Force Majeure. If either Party fails to fulfill its obligations hereunder (other than an obligation for the payment of money), when such failure is due to an act of God, or other circumstances beyond such Party’s reasonable control, including but not limited to fire, flood, hurricane, earthquake, plague, epidemic, pandemic, civil commotion, riot, war (declared and undeclared), terrorism, revolution, or embargoes (each, a “Force Majeure Event”), then said failure shall be excused for the duration of such event and for such a time thereafter as is reasonable to enable the Parties to resume performance under the Agreement, provided however, that if any such Force Majeure Event lasts for more than 60 consecutive days, either Party may terminate the Agreement, including all Order Form(s).
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 2(d) would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Promotional Materials. Neither Party shall, during the Term or thereafter, issue any press release regarding the Agreement or use the other Party’s name in any advertising or promotional materials without the prior written consent of the other Party.
- Notices. Datasembly may give notice to Customer via electronic mail to Customer’s e-mail address on record in Datasembly’s account information, or by written communication sent by first class mail or pre-paid post to Customer’s address on the Order Form. Customer may give notice to Datasembly at any time by letter delivered first class mail to Datasembly at 1775 Tysons Blvd, 5th Floor, Tysons, VA 22102. All notices shall be deemed to have been given five days after mailing (if sent by first class mail) or twenty-four (24) hours after sending by e-mail.
- Assignment. Customer may not assign or transfer the Agreement or any of its rights hereunder (whether by operation of law or otherwise), or delegate any obligations hereunder, without the express written consent of Datasembly. Notwithstanding anything to the contrary in the Agreement, Datasembly may assign the Agreement to an Affiliate, to a successor-in-interest, or to a party acquiring Datasembly’s business through a merger, acquisition, reorganization or other transaction. Any assignment or transfer in violation of the foregoing will be null and void from the beginning. The Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
- Modifications. Datasembly reserves the right to alter the terms of this Agreement at any time. Customer agrees to review the latest version of the Agreement on Datasembly’s website periodically to remain aware of any modifications to the Agreement about which Customer is not alerted by Datasembly. The Agreement available on the website will be dated so as to make clear what version is currently in force. Any use of the Datasembly Services after alteration of the Agreement will constitute acceptance by Customer of such changes. Customer’s sole remedy should Customer not agree with the altered Agreement shall be to cease Customer’s use of the Datasembly Services and to comply with Customer’s termination obligations outlined in Section 4 of this Agreement. If any provision of the Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect.
- Entire Agreement. Both Parties agree that the Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes all previous written and oral agreements and communications relating to the subject matter of the Agreement, including but not limited to any non-disclosure agreement. In entering the Agreement, neither Party has relied upon any statement, representation, warranty or agreement of the other Party except for those expressly contained in the Agreement. To the extent of any conflict or inconsistency between the provisions in this Subscription Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of the Agreement, and all such terms or conditions shall be null and void.
Exhibit A
Additional Terms for Specific Products and Additional Services
- Product Terms
- Data Exports. If Customer purchases Data Exports as part of the Services, Datasembly will provide a weekly data feed to Customer. Weekly exports (with Data from Sunday through Saturday) will start delivering data to Customer’s cloud bucket by 5PM Central time on the following Monday according to the Datasembly standard export formats that Customer has selected in the applicable Order Form.
- Product Mapping and Matching. If Customer purchases product Mapping or product Matching as part of the Services, Datasembly will provide Customer with the following product Mapping and Matching Services to Customer. As a prerequisite for Datasembly to begin providing Mapping and/or Matching Services to Customer, Customer shall provide a list of reference products containing UPCs (where applicable) within the guidelines of the Datasembly provided template and a list of retailers Customer would like to map and/or match.
- Product Mapping.
- Customer acknowledges and agrees that Datasembly will only map items that are currently collected by Datasembly at the time of providing the Mapping Services to Customer.
- Datasembly will use Customer’s reference products to seek and map between Customer’s reference product and those same products at non-UPC and/or Instacart banners that are part of the applicable scope of the Order Form.
- Datasembly shall provide the results of the Mapping Services to Customer (a) via a data export, and (b) in the “Matched Products” view in the Software.
- For purposes of the Agreement, "Mapping” means matching a national brand product’s UPC to the exact same national brand product’s product ID at Instacart or a banner that does not contain the UPC.
- Maps will be maintained on a bi-annual cadence and are not subject to customer approval.
- Product Matching.
- Datasembly shall: (a) use Customer’s reference products to seek and create Matches at the competitive retail banners in scope as set out in the relevant Order Form; and (b) search across all channel methods (i.e. in-store, pick-up, local delivery, and/or e-commerce) for the best possible Match. Customer acknowledges and agrees that Datasembly will only match items that are currently collected by Datasembly at the time of providing Services to Customer.
- Upon the applicable start date of the applicable Order Form, Datasembly shall apply any Matches provided by Customer on the condition that they align with Datasembly’s input file which consists of the human readable reference product title, the reference product UPC/PLU or SKU, the match banner, the match type - private label or national brand, human readable matched product title, and the match product UPC/PLU or SKU. Customer acknowledges and agrees that Datasembly will: (a) only take SKUs for reference or matched products if Datasembly then has a full collection for those banners; and (b) not be responsible for maintaining these Matches or uploading additional Matches during the term of the applicable Order Form.
- Datasembly shall: (a) present Customer with proposed Matches to review, on a probability scale ranging from High-Medium-Low-No Match, allowing Customer to reject any of the proposed Matches; (b) attempt to rematch any of the rejected proposed Matches, then provide Customer with newly proposed Matches for which Customer may review and ask Datasembly to attempt to rematch any rejected Matches for a second and final time.
- Datasembly shall conduct Match maintenance on a quarterly basis. If any products at a particular retailer, for which Datasembly has matched Customer’s reference product to, are discontinued, then Datasembly shall rematch Customer’s reference product to the next best available Match. For purposes of the foregoing sentence, a discontinued product is one that has not been observed in collections for 90 days. During a scheduled maintenance week occurring every quarter, Datasembly shall provide Customer with the opportunity to swap out reference products, not to exceed 20% of their reference products allotment set forth in the relevant Order Form for the applicable contract year.
- Datasembly shall provide Matches made and ongoing maintenance updates to Customer (a) via a data export, and (b) in the “Matched Products” view in the Software.
- For purposes of the Agreement, a product “Match” means a unidirectional relationship from one reference product sold at a retailer to another product sold at a separate retailer. Datasembly will also identify a Match from a reference product sold at a retailer when there is no comparable product sold at another retailer.
- Data. For the avoidance of doubt, Mapping data and Matches are Datasembly Data and not Customer Confidential Information.