Subscription Agreement

Last modified: January 2020

The Collective[i] Subscription Agreement (this “Agreement”), governs any ordering document executed by Cross Commerce Media, Inc. d/b/a Collective[i] (“C[i]”, or, as context dictates, “Us” or “Our”) and the customer or client identified in that ordering document (“Client”, or, as context dictates, “You” or “Your”) (each a “Party” and collectively “Parties”) (the “Order Form”).

  1. Term. The “Term” is the Initial Term, as indicated on the Order Form, plus any Renewal Terms.
  2. The C[i] Solution. C[i] has developed, owns and hosts a proprietary data network that utilizes technology, services and collaborative tools, systems, APIs and applications, as they exist now or may be modified or updated in the future, to analyze sales, marketing and other data entered into its systems by its clients and others (collectively, the “C[i] Solution”).
  3. Authorized Users of C[i] Solution. The number and identity of Your designated users (including any employees, third-party agents, contractors and consultants) who are granted a license to access and use the C[i] Solution (each such user, an “Authorized User”) is set forth in Your Order Form. To increase the number of Authorized Users, or to change the identities of Your Authorized Users, You can elect to do so either through the C[i] interface, an executed addendum or written email, any of which shall constitute a pricing addendum to the Order Form. Any other changes to the Authorized Users, including a reduction of the number of Authorized Users, may be done only by a written addendum to the Order Form signed by both Parties. Each Authorized User must register for a non-transferable log-in ID and password (“Log-In Info”) and shall have access only to his or her own Log-In Info, which may not be shared. You may designate one or more of Your Authorized Users to have special administrator access and privileges within the C[i] Solution (each such Authorized User with such privileges may also be referred to as an “Administrative User”). You shall be responsible for determining which individuals shall have access to the C[i] Solution and for all activity that occurs under any Log-In Info, and for the acts and omissions of each Authorized or Administrative User and any other individual to whom you give access, to use commercially reasonable efforts to prevent unauthorized access to or use of the C[i] Solution, and to notify C[i] promptly of any such unauthorized access or use. C[i] may collect, use and store information regarding Authorized Users’ use of the C[i] Solution to support and improve the services C[i] offers. All user identification and passwords used by C[i] to access any of Your and/or Your Third Party Service(s) data will be deemed Your Confidential Information (as defined below). C[i] will limit such access to those systems expressly approved to be accessed and by those of its personnel who have a need to access such systems. You acknowledge that in connection with any C[i] Solution, Your Authorized Users will receive (and may not opt-out of) reasonably necessary or appropriate communications from C[i] about C[i] and its products and services through any contact information provided by an Administrative User and/or Authorized User. You shall ensure that Your Authorized Users will not (i) use the C[i] Solution to defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of others; (ii) engage in any conduct that is characterized by, or encourages, bigotry or discrimination of any form; or (iii) engage in scraping, data mining, harvesting, screen scraping, data aggregating or indexing, or allow or facilitate any other party in doing so, and You agree to be responsible for any third-party claims, damages, liabilities and/or losses arising out of any of the actions set forth in clauses (i)-(iii). C[i] reserves the right to, and may at any time with or without notice, disable any Authorized User’s access to the C[i] Solution, if C[i] determines in its sole discretion that such Authorized User is engaged in, or has engaged in, or imminently may engage in, any improper conduct in connection with the C[i] Solution, including but not limited to any breach of any term or condition of this Agreement.
  4. Third Party Services and Your Data. Use of the C[i] Solution requires ongoing and continuous access to the data to which You grant us access (“Your Data”), and to application programming interfaces (“APIs”) or other service offerings by third parties (each, a “Third Party Service”). You may disable Our access to Your Data at any time and from that time forward access will cease and no new data will be integrated. Any cost or other obligation to any Third Party Service for access to or use of Your Data shall be Your sole responsibility. C[i] can be under no obligation, and will have no obligation, to agree to any terms or conditions, or to assume any liabilities, in relation to any Third Party Service. Third Party Services will be integrated with the C[i] Solution and may be embedded or accessed by Your Authorized Users from within it. You understand and acknowledge that any data uploaded as a result of such integration will become a part of the C[i] Solution. You also understand and acknowledge that the integrity of Our network’s database is critical to C[i]’s ability provide unbiased analyses, and that You are and at all times shall remain solely responsible for the accuracy, quality and legality of Your Data. You will promptly notify C[i] if you become aware of anything in or relating to Your Data that could adversely affect C[i]’s integration or access. C[i] may suspend or terminate any data access or importation upon any failure(s) and assess technical support fees if remedial or corrective steps or re-importation of data is or becomes necessary. You grant C[i] the right to access, collect, reproduce and analyze Your Data, and You and Your Authorized Users may use the C[i] Solution to process and analyze Your Data and the information (including information of or about the Authorized Users) provided thereby. Your Authorized Users will control the ways in which You will use and benefit from the C[i] Solution, including any outcomes and results of such use.
  5. Network of Insights Based on Aggregated Data. In addition to specific information and data analytics provided to clients in connection with the C[i] Solution, C[i]’s clients may also benefit from access to a larger business network of insights developed by C[i], based on analysis of aggregated data obtained by C[i] from various sources (including You). Accordingly, You grant C[i] a nonexclusive worldwide royalty-free and fully paid license and right to use and maintain data stores of any and all of Your Data, and any and all other data that is, was or may be imported, provided and/or generated by You or any of Your Authorized Users. C[i] may use and continue to use, any and all such data, may reproduce, modify and create derivative works from such data, and may distribute and display such data in the aggregate, or as aggregated with other data collected or provided by C[i] and others, in connection with the products and services C[i] provides. You can be assured that C[i] will not use Your Data in a manner that identifies You, Your Authorized Users, or Your existing or potential customers to any third parties, or in any manner that involves any breach of C[i]’s confidentiality obligations to You with respect to Your Data.
  6. Tech Integration; Your Support. You will, at Your cost, obtain the right to integrate with, and access and use, each Third Party Service that is to be integrated with the C[i] Solution in connection with Your use thereof. C[i] will provide a reasonable number of man-hours of technical assistance in connection with such integration without charge, and additional technical assistance will be at the price, all as set forth on the Order Form. C[i] will provide all of Your Authorized Users with a certain number of hours of support and training at no charge, and thereafter additional support will be at the agreed price, all as set forth on the Order Form.
  7. Permitted Uses of C[i] Solution. You and Your Authorized Users may use the C[i] Solution for Your own internal and commercial business purposes. You may not reproduce, create derivative works of or modify the C[i] Solution, or use the C[i] Solution for any illegal purpose or in any unlawful manner, or to interfere with any third party’s use of the C[i] Solution. Further, You may not access the C[i] Solution for the purpose of competing with C[i], or for purposes of monitoring its availability, performance or functionality, for any benchmarking purposes, or for any reason other than the purposes for which the C[i] Solution is intended to be used. You hereby represent and warrant to C[i] that You are not subject to any agreement, contract, covenant, provision, policy, terms and conditions, order, decree or other restriction that would prevent You from using the C[i] Solution, or from inputting Your Data, as described herein, and that all data included in Your Data is accurate to the best of Your knowledge, is in fact Your data, and is not owned by or exclusively licensed to any other party.
  8. Confidentiality. The term “Confidential Information” means the information described below, as well as either Party’s information that has been labeled or indicated in writing as being confidential. Your Confidential Information includes Your Data in a manner that identifies You as the source, as well as Your sales, marketing or business plans, sales forecasts, and lists of actual and prospective customers communicated to C[i] in the course of providing services to You. C[i]’s Confidential Information includes the Log-In Info, the terms of this Agreement (including any and all pricing terms) as well as the C[i] Solution and any analytic frameworks, algorithms, analyses, network data, report templates, or derivative works (including those that may integrate Your Data) provided or manifested through use of the C[i] Solution (whether or not patentable and whether or not copyrightable, and including inventions, formulae, vendor information, customer information, apparatuses, equipment, trade secrets, processes, research, technical data, know-how, software, software documentation, database architecture, hardware design, and other technology owned, possessed or used by C[i] (other than Your Data)). Neither Party shall disclose Confidential Information of the other Party to any third party, provided, however, that each Party may disclose Confidential Information of the other Party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing Party shall give reasonable notice to the other Party in order to allow it to contest such order or requirement to the extent permitted by law; (ii) on a confidential basis to legal advisors; or (iii) as may be reasonably necessary to employees, consultants, or other direct or indirect technology service providers (such as hosting or cloud providers or providers of Third Party Services) to perform or exercise its rights and obligations hereunder, and then only if the same is subject to confidentiality restrictions at least as protective as those set forth herein. C[i] shall not be liable to its confidentiality obligation in respect of Your Data or Your Confidential Information if You or Your Authorized User or any other party within Your control or authority shares, intentionally or otherwise, any such Confidential Information with any third party without comparable confidentiality restrictions, including through use of any feature or functionality of the C[i] Solution. Confidential Information does not include information that: (1) is or becomes generally known to the public through no fault of the receiving Party; (2) is known to the receiving Party at the time of disclosure without an obligation of confidentiality; (3) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information; (4) is received without restriction on use or disclosure by the receiving Party from a third party who is rightfully empowered to disclose such information; (5) is or has been disclosed without confidentiality obligations to a third party by the disclosing Party; or (6) is disclosed with the prior written approval of the disclosing Party.
  9. Ownership Rights. C[i] or one or more of its affiliates (and its and their respective licensors and suppliers) retains all right, title, and interest in and to: (i) the C[i] Solution, together with any software and hardware technology and infrastructure, as well as the business model, and any reports, analyses and frameworks relating thereto; and (ii) all graphics, logos, service marks, and trade names, including third-party names, product names, and brand names used by C[i] in connection with providing the products and services under this Agreement. You and Your respective licensors shall, subject to the terms and conditions hereof, retain all right, title, and interest in and to: (x) any and all of Your Data; and (y) any graphics, logos, service marks, and trade names lawfully used by You. C[i] welcomes requests, instructions or other suggestions related to the C[i] Solution, but in making the same, Your suggestions will become the property of C[i], and C[i] has no obligation to compensate You for such suggestions, whether or not used by C[i]. Your right to use the C[i] Solution does not include a license or other rights to any of the underlying technology infrastructure or code used to provide the C[i] Solution.
  11. Indemnification. You shall defend and indemnify and hold harmless C[i] from and against any third party claims, proceedings, causes of action, liabilities, damages, fines, losses, costs and expenses (including reasonable attorneys’ fees and disbursements arising out of or relating to this Agreement (collectively “Claims”), including but not limited to the following: (i) any Claim based on or arising out of any actual or attempted access to or use of the C[i] Solution by You or Your Authorized Users (or any third party as occasioned by You or Your Authorized Users), (ii) any failure of any representation or warranty made by You as set forth herein, (iii) any violation by You or Your Authorized Users of any applicable laws, regulations or judicial or administrative rules, (iv) any infringement of any intellectual property rights or other rights of any third party caused by You or any of Your Data, (v) any breach or failure of any covenant set forth herein, or (vi) any conduct in violation of C[i]’s Privacy Policy. If C[i] shall become subject to or aware of a Claim or potential Claim as to which it believes it has a right to indemnification hereunder, C[i] shall give You reasonably prompt notice of such Claim or potential Claim, and shall provide any relevant documentation or information, whereupon You shall engage, at Your expense, counsel reasonably satisfactory to C[i] to defend against the Claim. C[i] shall have the right, at its own expense, to participate in the defense of any such Claim through counsel of its own choosing, and shall in any event cooperate with You in the defense of such Claim. No settlement of any Claim may be made, if it involves or requires any admission of wrongdoing by C[i], without C[i]’s written approval.
  12. Limitations of Liability. While it is anticipated that You will benefit from Your use of the C[i] Solution, any business decisions You (and/or Your Authorized Users, employees, agents and/or consultants) make based on or in any way related to such use, or to any information, analysis, data, advice or recommendations derived from such use, or provided by C[i], shall at all times be and remain solely Your responsibility. C[i] is not, and shall not be, liable for: any consequences of Your conduct or decisions (and/or those of Your Authorized Users, employees, agents and/or consultants), even if based on any information or advice provided by C[i] or the C[i] Solution; Your business or operations, including the way in which You (and/or Your Authorized Users, employees, agents and/or consultants) use the C[i] Solution in connection with Your business or operation; any unauthorized modification of the C[i] Solution; or the use of the C[i] Solution by You (and/or any of Your Authorized Users, employees, agents and/or consultants) for a purpose for which it was not intended or in violation of this Agreement. Under no circumstance shall C[i] be liable to You for any indirect, incidental, special, consequential or punitive damages, or any loss of data, opportunities, reputation, profits or revenues, and in no event shall C[i] be liable for any amount(s) greater than the total amount(s) paid by You to C[i] during the twelve (12) month period immediately preceding any event or occurrence deemed to give rise to any such liability.
  13. Suspension. C[i] may immediately restrict or suspend Your or any of Your Authorized Users’ right to use or access the C[i] Solution if C[i] determines, in its sole discretion: (a) that such access or use may pose a security risk to the C[i] Solution or any users; (b) that such access or use may adversely impact the C[i] Solution or the systems or data of any user; (c) that such access or use may subject C[i] or any of its affiliates or any third party to liability; (d) that You are in breach of this Agreement; (e) that such access or use has been enjoined or is being investigated by a governmental authority; or (f) that You have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
  14. Publicity. Neither Party will use the other Party’s name, logo, trademarks or service marks in any press release or any other public announcement without the prior written approval of such other Party, except that C[i] may in its discretion indicate in its marketing materials (including in listing clients on its website) that You are a client of C[i], and may display Your name, logo, trademarks or service marks solely for such purpose. Nothing in this Agreement shall prevent either Party from making any statement about its business relationship with the other or otherwise making public or private statements in the normal course of its business that do not disclose the specific terms of this Agreement. Neither Party will publicly or privately disparage the other Party or its services or business, including through the use of any C[i]-provided tools, services and/or other resources.
  15. Non-Solicitation. For the Initial Term, any applicable Renewal Term and for a period of twelve (12) months following any termination or expiration hereof for any reason whatsoever, each Party shall not, either directly or indirectly, solicit, induce, recruit or encourage any of the current employees, officers, or directors of the other Party or its affiliates to terminate or leave their employment, engagement or position; provided, however, that the foregoing shall not prevent either Party from (a) engaging in any general solicitations for employment (not specifically targeting the other Party’s current employees, officers, or directors or its affiliates) directly or through any agent (including placement and recruiting agencies) and hiring any person as a result thereof; (ii) hiring any person who contacts a Party on his or her own initiative without any direct or indirect solicitation from such Party; or (iii) soliciting and/or hiring any person who is no longer employed by the other Party at such time.
  16. Neutral Host. You acknowledge that the C[i] Solution is highly automated, and that C[i] does not monitor user activity and assumes no responsibility to review, endorse, police or enforce any activities that may be undertaken by You or any other users of the C[i] Solution. You shall ensure that Your and Your Authorized Users’ use of the C[i] Solution will be in accordance with the applicable laws and government regulations where You and such Authorized Users work, reside or access or use the C[i] Solution.
  17. Representations and Warranties.. Each Party represents and warrants that the individual binding a party under this Agreement is authorized to do so. Each of C[i] and Client further represents, warrants and covenants that by agreeing to and performing its obligations under this Order Form and the governing Subscription Agreement it will not violate, conflict with or cause a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien or encumbrance to which it is a party or by which it or any of its rights or property is or may become subject or bound.
  18. Termination; Survival. This Agreement and the Order Form may be terminated (a) by C[i], if You breach any payment obligation and do not cure such payment breach within ten (10) business days of receiving written notice thereof; or (b) in the case of any other breach of this Agreement and/or the Order Form, by the non-breaching Party on reasonable notice; provided, however, that, if such breach is reasonably capable of cure, and if such notice and cure period may be reasonably given without material harm to the non-breaching Party, the Party in breach shall have forty-five (45) days following written notice to cure such breach, whereupon, absent such cure (and, if applicable, remediation of any costs incurred by the non-breaching Party as a result of the breach), the non-breaching Party may terminate this Agreement and/or the Order Form, as applicable. Any rights or remedies of either Party arising out of a breach or violation by the other Party of the Agreement and/or the Order Form will survive any expiration or termination hereof and/or thereof, as applicable. Any and all provisions hereof which by their terms may be reasonably expected to survive any expiration or termination of this Agreement, including but not limited to those relating to confidentiality, ownership, indemnification, limitations of liability and publicity, shall survive any expiration or termination hereof. Upon termination of this Agreement, You shall be responsible for disabling C[i]’s access to Your data sources, and C[i] shall in no event be liable to You for any consequences related to Your failure to disable such access.
  19. Relationship of the Parties. C[i] is an independent contractor and neither it nor its employees will be considered an employee of Yours for any purpose. Nothing herein shall create an express or implied partnership, joint venture, employment or other association between the Parties. Neither Party has any right, power or authority to enter into any agreement or other commitment for, or incur any liability or obligation on behalf of, or otherwise bind the other Party.
  20. Non-Assignability; No Third Party Beneficiaries. This Agreement may not be assigned by either Party without the prior written consent of the other Party, except that either Party may assign this Agreement without such consent as part of corporate reorganization, stock purchase, merger or sale of all or substantially all of the assets and business to which it relates. Any assignment in violation of the above shall be null and void. You may not, make any aspect of the C[i] Solution available to, or use it for the benefit of, anyone other than You or Your Authorized Users. You agree that there are no third party beneficiaries to this Agreement.
  21. Force Majeure. Neither Party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, acts of God, fire, flood, accident, electrical outages, earthquakes, telecommunications line failures, network failures, war or labor disputes.
  22. Construction; Severability. If any provision of this Agreement is held to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the parties, and all other provisions will remain in full force and effect. C[i]’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless such waiver is acknowledged and agreed to by C[i] in writing.
  23. Dispute Resolution. If at any time, either during the Term of this Agreement or thereafter, You believe that C[i] has breached this Agreement, or otherwise violated or infringed any of Your rights, or that there is a valid dispute between You and C[i] (in all cases, a “Dispute”), You will give Notice to C[i] of same, in writing, together with an explanation of the Dispute and any relevant documentation. You and C[i] will then meet, in person, within twenty (20) days of such Notice, in New York City or another mutually agreed location, and attempt to resolve the Dispute through informal discussion. If the Parties are unable to resolve the Dispute at such meeting, then either Party may seek a judicial resolution, subject to the venue and choice of law provisions hereof.
  24. Entire Agreement. This Agreement is subject to the terms and conditions of C[i]’s Privacy Policy and, to the extent the data being transferred between Client and C[i] is subject to the EU General Data Protection Regulation, the Data Protection Addendum.  This Agreement (together with the C[i]’s Privacy Policy, the Data Protection Addendum, as applicable, and the Order Form, the terms of which are incorporated herein) constitute the entire agreement between You and C[i] regarding the subject matter hereof, and supersedes any and all prior oral or written agreements, electronic communications, representations, and understandings between the Parties. If a conflict exists between any of the terms in this Agreement and the terms in the Order Form, the terms in this Agreement shall govern.
  25. California Consumer Privacy Act. This Section 25 reflects the agreement between C[i] and You in respect of the processing of Your Data, with respect to C[i]’s data or predictive analytics service, in connection with the California Consumer Privacy Act, Cal. Civ. Code §1798.100 et seq., and its implementing regulations (“CCPA”). With respect to C[i]’s data or predictive analytics service, in processing any of Your Data that is personal information of California consumers, C[i] will act as your service provider, and will not retain, use or disclose such data other than (a) for a business purpose under the CCPA on Your behalf and the specific purpose of performing data or predictive analytics on Your behalf, or as otherwise permitted under the CCPA, or (b) as may otherwise be permitted for service providers or under a comparable exemption from “sale” in the CCPA, as reasonably determined by C[i]. You agree that you have not received and will not receive any monetary and other valuable consideration for sharing such data with C[i], and You agree to include in Your public-facing privacy policy a notice that you share such data with C[i] for such purposes. The terms “consumers”, “business purpose”, “personal information”, “sale” and “service provider” in this Section 25 shall have the meanings given in the CCPA, and the provisions of this section are effective to the extent the CCPA applies.
  26. Notices. Any notice required or permitted by this Agreement (“Notice”) shall be in writing and either personally delivered or sent via email (subject to actual non-automatic confirmation of receipt), or by certified or registered mail, prepaid and return receipt requested, addressed to the other Party at its email or physical address specified on the Order Form, or at such other address designated in a subsequent Notice. All Notices shall be effective upon receipt.
  27. Governing Law; Venue. This Agreement will be governed by the internal laws of the State of New York, and if applicable the federal law of the United States, without regard to the conflict of law rules of any jurisdiction. Any action based on or alleging a breach of this Agreement and/or the Order Form, or in any way relating to the relationship resulting herefrom and/or therefrom, as applicable, must be brought in a state or federal court in New York County, New York, and the Parties consent to the exclusive jurisdiction of such courts.
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