Terms & Conditions
These FeelCommerce Terms of Service ("Agreement") apply to the solution and services provided by FeelCommerce Inc. (“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 1.1 Right to Use. Subject to the terms and conditions of this Agreement and the terms of the Order, Feel hereby grants Customer and Customer accepts, a non-exclusive, non-sublicensable and non-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 live sessions on the Solution; and (iii) use the Solution in connection with the Websites, during the applicable subscription term specified in the Order, solely for its intended purposes. "Solution" means Feel’s proprietary solution for live video demo sessions with online consumers identified in the applicable Order. “Implementation Code” means the code provided by Feel, to be embedded on the Websites for implementation of the Solution therein. “Website” means the websites owned or controlled by Customer that are listed on the Order, as may be amended from time to time by mutual approval of the parties in writing (the “Websites”).
1.2 1.2 Hosting. Feel will (itself or through use of a third party service provider operating on its behalf) arrange for the hosting, operation, and maintenance of the Solution. The cost of hosting the Solution is included in the consideration as set forth on the Order
1.3 1.3 Restrictions. Except as expressly permitted herein, Customer shall not, directly or indirectly: (i) sell, license (or sub-license), lease, assign, transfer, pledge, or share the Implementation Code or Customer’s account on the Solution with or to any third party; (ii) embed the Implementation Code on any website other than the Websites; (iii) disclose, publish or otherwise make publicly available the results of any benchmarking of the Solution; (iv) use the Solution for purposes of competitive analysis or the development of a competing software product or service; (v) use the Solution or Implementation Code in any manner that is prohibited by law, including without limitation, to sell, distribute, download or export the Solution: (a) into (or to a resident of or corporation incorporated in) Cuba, Iran, Libya, North Korea, Sudan or Syria, (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (d) otherwise in violation of any export or import restrictions, laws or regulations of the U.S. or any foreign agency or authority. Customer agrees to the foregoing and warrant that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list; (vi) exceed any use limitations or other restrictions that are specified in the Order; (vii) contest Feel’s Intellectual Property Rights (as defined below) to the Feel IPR (as defined below); (viii) use the Solution or Implementation Code for any purpose other than as permitted by this Agreement or attempt to access any part of the Solution or its servers without authorization or by unauthorized means; (ix) initiate an unreasonable number of session in a manner that encumbers the Solution or its servers; (x) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Solution, such as features that restrict or monitor use of the Solution; or (xi) cause or permit any third party to do any of the foregoing. Customer is solely responsible for acquiring and maintaining all of the hardware and software necessary to access and make use of the Solution.
2. 2. Consideration. In consideration for the right to use the Solution, Customer shall pay Feel the fees set forth in the Order. Unless otherwise specified in the Order, all amounts shall be invoiced in advance and shall be due and payable within thirty (30) days of the date of Feel’s invoice. If Customer exceeds the number of seats set forth in the Order, it will pay increased fees for the excessive seats. All amounts payable under this Agreement are exclusive of all taxes and duties of any kind, all of which shall be borne by Customer. If Customer is required to withhold or deduct any amount from any payment under this Agreement, Customer shall gross-up the payment such that after the withholding or deduction Feel shall receive full payment in the amount equal to the fees set forth in the Order. All payments not made when due shall bear interest at the rate of 1.5% per month, or at the highest interest rate allowed by law, whichever is lower.
3. 3. Confidentiality. Customer may have access to certain non-public or proprietary information or materials of Feel whether in tangible or intangible form ("Confidential Information"). Without derogating from the foregoing, the Solution and terms of the Agreement and the Order shall be deemed as Confidential Information. Customer may use the Confidential Information solely for the purpose of exercising its rights under this Agreement. Customer shall not disclose or make available the Confidential Information to any third party, except to its employees and consultants that have a need-to-know such information and that are bound by obligations at least as protective as provided herein. Customer shall protect the Confidential Information using measures at least as protective as those taken to protect its own confidential information of like nature (but in no event less than a reasonable level of care). Customer will promptly notify Feel in writing in the event of any actual or suspected unauthorized use or disclosure of any Confidential Information.
4. 4. Ownership. Feel or its licensors retain all right, title, interest in and to the Solution and Implementation Code and all related documentation and Confidential Information and any modifications, improvements and derivatives thereof and all intellectual property rights thereto ("Feel IPR"). This Agreement does not convey to Customer an interest in or to any Feel IPR but only the limited right to use the Solution pursuant to Section 1 above.
5. 5. Feedback. Customer may provide Feel with feedback regarding the Solution and its use, including without limitation suggestions, ideas, bug notes and user experience reviews (collectively, “Feedback”). Feel may, at no cost, freely use such Feedback, for any purpose whatsoever and Customer hereby assigns all right, title and interest in and to all Feedback to Feel upon creation thereof.
7. Disclaimer of Warranty.
7.1. 7.1. EXCEPT AS EXPLICITLY SET FORTH HEREIN, THE SOLUTION AND IMPLEMENTATION CODE ARE PROVIDED “AS IS”, WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FEEL DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.2. COMPANY DOES NOT WARRANT THAT THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE; OR THAT ERRORS/BUGS ARE REPRODUCIBLE.
8. 8. Limitation of Liability. EXCEPT FOR FRAUD, WILLFUL MISCONDUCT, BREACH OF CONFIDENTIALITY OR INDEMNIFICATION FOR THIRD PARTY INFRINGEMENT CLAIMS PURSUANT TO SECTION 9 BELOW, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FEEL AND ITS AFFILIATES, SHAREHOLDERS, SUPPLIERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES AND/OR LICENSORS (COLLECTIVELY, “AFFILIATES”) SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, WHETHER UNDER CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OR DAMAGE, INCLUDING, WITHOUT LIMITATION ANY LOSS OF BUSINESS, LOST PROFITS OR LOST OR DAMAGED DATA, SUFFERED BY ANY PERSON OR ENTITY, EVEN IF FEEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL FEEL'S AND ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT OF PAYMENTS ACTUALLY MADE TO FEEL FOR THE SOLUTION DURING THE TWELVE (12) MONTHS PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
9.1. 9.1. Feel agrees to defend Customer from and against any and all claims alleging that the Solution infringe any intellectual property rights of a third party. Feel shall indemnify Customer against any damages and losses finally awarded in judgment or settlement as a result of such claim, including reasonable attorney's fees.
9.2. 9.2. Customer agrees to defend Customer from and against any and all claims: (i) alleging that the Websites, any content therein or any products or services provided, offered or advertised therein: (a) infringe any intellectual property rights of a third party, or (b) are illegal, defamatory, obscene, racist, violent or offensive; (ii) in connection with Feel’s products or services or any complaints of its customers regarding the quality of the Customer’s services or online sessions. Customer shall indemnify Feel against any damages and losses finally awarded in judgment or settlement as a result of such claims, including reasonable attorney's fees.
9.3. 9.3. Indemnifying party’s indemnification obligation shall be subject to the following: (i) indemnified party provides written notice of the claim to indemnifying party promptly after becoming aware thereof; (ii) indemnifying party has sole control of the defense and settlement of the claim; and (iii) indemnified party shall provide reasonable assistance in the defense at indemnifying party’s expense.
10. Term and Termination.
10.1. 10.1. The term of this Agreement shall be as set forth in the Order and may be terminated earlier in accordance with this Section (“Term”).
10.2. 10.2. Either party may terminate this Agreement upon thirty (30) days’ written notice if the other party: (i) is in breach of the Agreement and does not cure such breach within the notice period; (ii) becomes insolvent or under any bankruptcy or liquidation proceedings. Upon termination or expiration of this Agreement: (i) the rights granted to Customer under this Agreement shall expire and Customer shall discontinue all further use of the Solution and Implementation Code; (ii) Customer shall pay in full all amounts due and owed to Feel; and (iii) Customer shall, at Feel's election, erase or return to Feel all Confidential Information in its possession or under its control. Sections 1.2, 2-5, 7-9, 10.2 and 11 shall survive any termination of this Agreement.
11. 11. Miscellaneous. This Agreement shall be construed and governed by the laws of New York, without regards to the conflict of law provisions therein. Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be subject to the exclusive jurisdiction of the Federal and state courts of New York, U.S.A. and each party hereby submits itself to the exclusive jurisdiction of these courts. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This Agreement represents the entire agreement between Customer and Feel regarding the subject matter herein and may be amended only by a written agreement of both parties. To the extent any conflict arises between the terms and conditions of this Agreement and those contained in the Order, the terms and conditions contained in this Agreement shall prevail. FeelCommerce may use aggregate data in connection with the use of the Solution for any purpose, without any restrictions. The failure of either party to enforce any rights granted herein or to take action against the other party in 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 provision shall be reformed only to the extent necessary to make it enforceable. Customer may not assign its rights or obligations under this Agreement without the prior written consent of Feel. Feel may assign its rights and obligations under this Agreement to an affiliate or in connection with a merger, consolidation, reorganization or sale of all or substantially all of its assets.