FeelCommerce Terms of Service
TheseFeelCommerce Terms of Service ("Agreement")apply to the solution and services provided by FeelCommerce Ltd. (“Feel”)to customers who signed a written purchase order with Feel (“Customer”and “Order”, respectively):
1. Grant of Right to Use and Restrictions.
1.1 Right to Use. Subject to the termsand conditions of this Agreement and the terms of the Order, Feel hereby grantsCustomer and Customer accepts, a non-exclusive, non-sublicensable andnon-transferable right to: (i) embed the Implementation Code on the Websites,(ii) send session code URLs to its customers or embed them in advertisements,emails or other content or Customer, in order to invite customers to livesessions on the Solution; and (iii) use the Solution in connection with theWebsites, during the applicable subscription term specified in the Order,solely for its intended purposes. "Solution" means the Feel’s proprietary solutionfor live video demo sessions with online consumers identified in the applicableOrder. “Implementation Code” means the code provided by Feel, tobe embedded on the Websites for implementation of the Solution therein. “Website”means the websites owned or controlled by Customer that are listed on theOrder, as may be amended from time to time by mutual approval of the parties inwriting (the “Websites”).
1.2 Hosting. The Feel will (itself or through use of athird party service provider operating on its behalf) arrange for the hosting,operation, and maintenance of the Solution. The cost of hosting the Solution isincluded in the consideration as set forth on the Order
1.3 Restrictions. Except asexpressly permitted herein, Customer shall not, directly or indirectly: (i)sell, license (or sub-license), lease, assign, transfer, pledge, or share theImplementation Code or Customer’s account on the Solution with or to any thirdparty; (ii) embed the Implementation Code on any website other than theWebsites; (iii) disclose, publish or otherwise make publicly available theresults of any benchmarking of the Solution; (iv) use the Solution for purposesof competitive analysis or the development of a competing software product orservice; (v) use the Solution or Implementation Code in any manner that isprohibited by law, including without limitation, to sell, distribute, downloador export the Solution: (a) into (or to a resident of or corporationincorporated in) Cuba, Iran, Libya, North Korea, Sudan or Syria, (b) to anyoneon the U.S. Commerce Department’s Table of Denial Orders or U.S. TreasuryDepartment’s list of Specially Designated Nationals, (c) to any country towhich such export or re-export is restricted or prohibited, or as to which theU.S. government or any agency thereof requires an export license or othergovernmental approval at the time of export or re-export without firstobtaining such license or approval, or (d) otherwise in violation of any exportor import restrictions, laws or regulations of the U.S. or any foreign agencyor authority. Customer agrees to the foregoing and warrant that it is notlocated in, under the control of, or a national or resident of any suchprohibited country or on any such prohibited party list;(vi) exceed any use limitations or other restrictions that are specified in theOrder; (vii) contest Feel’s Intellectual Property Rights (as defined below) tothe Feel IPR (as defined below); (viii) use the Solution or Implementation Code for any purpose other than as permitted bythis Agreement or attempt to access any part of the Solution or its serverswithout authorization or by unauthorized means; (ix) initiate an unreasonablenumber of session in a manner that encumbers the Solution or its servers; (x)circumvent, disable or otherwise interfere with security-related or technicalfeatures or protocols of the Solution, such as features that restrict ormonitor use of the Solution; or (xi) cause or permit any third party to do anyof the foregoing. Customer issolely responsible for acquiring and maintaining all of the hardware andsoftware necessary to access and make use of the Solution.
2. SalesAgents. Ifmutually agreed in writing by the parties (approval by email to suffice), Feelmay recruit sales agents on behalf of Customer (“SalesAgents”). Customer shall pay for the Sales Agent’s fees as set forth in theOrder. Customer may, subject to Feel’s written approval, elect to hire suchSales Agents directly, in which case Customer shall pay them directly. Feelshall not have any liability or responsibility for: (i) the formation of anyemployer-employee relationship between Customer and Sales Agents; or (ii) anybenefits, insurance or consideration due to Sales Agents that Customer electsto engage directly, and Customer shall indemnify and defend Feel in the eventof any claim that deviates from the foregoing. Without Feel’s written approval,Customer shall not solicit, enter into an engagement or hire any of the SalesAgents during the Term or for twelve (12) months thereafter. Sales Agents maybe used by Customer, at Customer’s election, to assist consumers to submitpayment card information on Customer’s Websites. Feel shall provide SalesAgents with training for handling payment card information as aforementionedand will comply with Customer’s reasonable guidelines in respect thereof. Ifdespite Feel’s training and compliance with Customer’s guidelines, Sales Agentmisuses or mishandles payment card information, Feel shall not have anyliability or responsibility in respect thereof.
3. Consideration. Inconsideration for the right to use the Solution, Customer shall pay Feel the feesset forth in the Order. Unlessotherwise specified in the Order, all amounts shall be invoiced in advance andshall be due and payable within thirty (30) days of the date of Feel’s invoice. IfCustomer exceeds the number of seats set forth in the Order, it will payincreased fees for the excessive seats. All amounts payable under this Agreement are exclusive of all taxesand duties of any kind, all of which shall be borne by Customer. If Customer isrequired to withhold or deduct any amount from any payment under thisAgreement, Customer shall gross-up the payment such that after the withholdingor deduction Feel shall receive full payment in the amount equal to the feesset forth in the Order. All payments not made when due shall bear interest at the rate of1.5% per month, or at the highest interest rate allowed by law, whichever islower.
4. Confidentiality. Customer may have access to certain non-public or proprietaryinformation or materials of Feel whether in tangible or intangible form ("ConfidentialInformation"). Without derogating from the foregoing, the Solution andterms of the Agreement and the Order shall be deemed as ConfidentialInformation. Customer may use the Confidential Information solely for thepurpose of exercising its rights under this Agreement. Customer shall notdisclose or make available the Confidential Information to any third party,except to its employees and consultants that have a need-to-know suchinformation and that are bound by obligations at least as protective asprovided herein. Customer shall protect the Confidential Information usingmeasures at least as protective as those taken to protect its own confidentialinformation of like nature (but in no event less than a reasonable level ofcare). Customer will promptly notify Feel in writing in the event of any actualor suspected unauthorized use or disclosure of any Confidential Information.
5. Ownership. Feel or its licensors retain all right, title, interest in and tothe Solution and Implementation Code and all related documentation andConfidential Information and anymodifications, improvements and derivatives thereof and all intellectual property rights thereto ("Feel IPR"). ThisAgreement does not convey to Customer an interest in or to any Feel IPR butonly the limited right to use the Solution pursuant to Section 1 above.
6. Feedback. Customer acknowledges that as a design partner it is expected toprovide and therefore undertakes to provide Feel with feedback regarding theSolution and its use, including without limitation suggestions, ideas, bugnotes and user experience reviews (collectively, “Feedback”). Feelmay, at no cost, freely usesuch Feedback, for any purpose whatsoever and Customerhereby assigns all right, title and interest in andto all Feedback to Feel upon creation thereof.
8. Disclaimer of Warranty.
8.1. THE SOLUTION IS IN BETA AND THEREFORE YOU MAYEXPERIENCE MORE BUGS AND AVAILABILITY ISSUES THAN IN A USUAL USER EXPERIENCE.
8.2. EXCEPT AS EXPLICITLY SET FORTHHEREIN, THE SOLUTION AND IMPLEMENTATION CODE ARE PROVIDED “AS IS”,WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS ORIMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FEEL DISCLAIMS ALL WARRANTIES,EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OFMERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8.3. FEEL DOES NOT WARRANT THAT THE SOLUTION WILL BEUNINTERRUPTED OR ERROR-FREE; OR THAT ERRORS/BUGS ARE REPRODUCIBLE.
9. Limitation of Liability. EXCEPT FOR FRAUD, WILLFUL MISCONDUCT, BREACH OF CONFIDENTIALITY ORINDEMNIFICATION FOR THIRD PARTY INFRINGEMENT CLAIMS PURSUANT TO SECTION 10 BELOW,TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FEEL AND ITS AFFILIATES,SHAREHOLDERS, SUPPLIERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES AND/ORLICENSORS (COLLECTIVELY, “AFFILIATES”) SHALL NOT BE LIABLE FOR ANYINDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, UNDER ANYLEGAL THEORY, WHETHER UNDER CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS ORDAMAGE, INCLUDING, WITHOUT LIMITATION ANY LOSS OF BUSINESS, LOST PROFITS ORLOST OR DAMAGED DATA, SUFFERED BY ANY PERSON OR ENTITY, EVEN IF FEEL HAS BEENADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THECONTRARY, IN NO EVENT SHALL FEEL'S AND ITS AFFILIATES’ AGGREGATE LIABILITYARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT OFPAYMENTS ACTUALLY MADE TO FEEL FOR THE SOLUTION DURING THE TWELVE (12) MONTHSPERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
10.1. Feel agrees to defend Customer from and against any and all claimsalleging that the Solution infringe any intellectual property rights of a thirdparty. Feel shall indemnify Customer against any damages and losses finallyawarded in judgment or settlement as a result of such claim, includingreasonable attorney's fees.
10.2. Customer agrees to defend Customer from and against any and allclaims: (i) alleging that the Websites, any content therein or any products orservices provided, offered or advertised therein: (a) infringe any intellectualproperty rights of a third party, or (b) are illegal, defamatory, obscene,racist, violent or offensive; (ii) in connection with Feel’s products orservices or any complaints of its customers regarding the quality of theCustomer’s services or online sessions. Customer shall indemnify Feel againstany damages and losses finally awarded in judgment or settlement as a result ofsuch claims, including reasonable attorney's fees.
10.3. Indemnifyingparty’s indemnification obligation shall be subject to the following: (i)indemnified party provides written notice of the claim to indemnifying partypromptly after becoming aware thereof; (ii) indemnifying party has sole controlof the defense and settlement of the claim; and (iii) indemnified party shallprovide reasonable assistance in the defense at indemnifying party’s expense.
11. Term and Termination.
11.1. Theterm of this Agreement shall be as set forth in the Order and may be terminated earlier in accordancewith this Section (“Term”).
11.2. Eitherparty may terminate this Agreement upon thirty (30) days’ written notice if theother party: (i) is in breach of the Agreement and does not cure such breachwithin the notice period; (ii) becomes insolvent or under any bankruptcy orliquidation proceedings. Upon termination or expirationof this Agreement: (i) the rights granted to Customer under this Agreementshall expire and Customer shall discontinue all further use of the Solution andImplementation Code; (ii) Customer shall pay in full all amounts due and owedto Feel; and (iii) Customer shall, at Feel's election, erase or return to Feelall Confidential Information in its possession or under its control. Sections1.2, 3-6, 8-10, 11.2 and 12 shall survive any termination of thisAgreement.
12. Miscellaneous. This Agreement shall be construed and governedby the laws of New York, without regards to theconflict of law provisions therein. Any dispute arising out of or in connectionwith this contract, including any question regarding its existence, validity ortermination, shall be subject to the exclusive jurisdiction of the Federal andstate courts of New York, U.S.A. and each party hereby submits itself to theexclusive jurisdiction of these courts. The application of the United NationsConvention of Contracts for the International Sale of Goods isexpressly excluded. This Agreement represents theentire agreement between Customer and Feel regarding the subject matter hereinand may be amended only by a written agreement of both parties. To the extentany conflict arises between the terms and conditions of this Agreement andthose contained in the Order, the terms and conditions contained in this Agreement shallprevail. FeelCommerce may use aggregate data in connection with the use of theSolution for any purpose, without any restrictions. The failure of either partyto enforce any rights granted herein or to take action against the other partyin the event of any breach herein shall not be deemed a waiver by that party.If any provision of this Agreement is held to be unenforceable, such provisionshall be reformed only to the extent necessary to make it enforceable. Customermay not assign its rights or obligations under this Agreement without the priorwritten consent of Feel. Feel may assign its rights and obligations under thisAgreement to an affiliate or in connection with a merger, consolidation,reorganization or sale of all or substantially all of its assets.