TAGGLO VENDOR TERMS OF SERVICE
Revised and Effective: 03/31/2017
You should read this Agreement carefully and retain a copy for your records. This Agreement is a legally-binding agreement that contains your binding agreement to arbitrate disputes, your consent to personal jurisdiction in the State of Georgia, U.S.A. and your waiver of your right to bring or participate in a class action against Stibo. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU ARE PROHIBITED FROM REGISTERING FOR, LOGGING INTO OR USING THE TAGGLO SERVICE.
These terms of service (this “Agreement”) constitute a legal agreement between Stibo Systems, Inc. (“Stibo”), a Delaware, U.S.A., corporation and the entity registering to use the Tagglo Service (“you” or “your”), regardless of your corporate form or if you are an individual, and it governs your use of, and dealings with, Stibo, the Tagglo Service and any services Stibo provides to you in connection with any of the foregoing. You and Stibo are each referred to as a “Party” and collectively as the “Parties”.
This Agreement becomes effective when you register to use the Tagglo Service or click an “ACCEPT” or similar button or checkbox designated by Stibo to show your acceptance of this Agreement. By taking any such action(s) (and each time you accept or are deemed to have accepted changes to this Agreement), (a) you are acknowledging that you have read and understand this Agreement and you are agreeing to be legally bound by this Agreement, (b) you are agreeing that this Agreement will be deemed to satisfy any requirement under applicable law that an agreement between you and Stibo be in writing and (c) you are agreeing that your actions in accepting this Agreement will be deemed to be your valid authenticated signature for purposes of any applicable law requiring that this Agreement be signed by you in writing.
If you are registering to use the Tagglo Service or are entering into this Agreement on behalf of your employer or another legal non-person entity, you represent that you have the authority to bind that employer or entity to this Agreement, and references to “you” or “your” in this Agreement will also be read to refer to that person or entity.
As used in this Agreement, the following defined terms have the following meanings:
1.1. “Documentation” means the user documentation and any other operating, training, and reference manuals relating to the use of the Tagglo Service that are made available to you or Your Users by Stibo (including via the Tagglo Service).
1.2. “Product Data” means any and all data pertaining to goods offered by you, including without limitation contact information, depictions or descriptions of the goods, their features, use or quality, pricing, terms of sale, and Stock Keeping Unit (SKU).
1.3. “Retailer” means an entity that (i) sells or distributes goods to third parties (on a wholesale basis or directly to the customer for the customer’s use or consumption) and (ii) is a then-current subscriber to the Tagglo Service in good standing.
1.4. “Subscription Period” is defined at Section 5.
1.5. “Tagglo Service” means Stibo’s internet-accessible software-as-a-service (SaaS) service offering (accessible at www.tagglo.io) that enables the capture, validation, maintenance and transfer of Product Data, along with other functionality, all as more specifically described in this Agreement and/or in the applicable then-current Documentation.
1.6. “Third Party Data Source” means a third-party product, service or system that collects, processes, stores, maintains, transmits and/or receives Product Data of, on behalf of, or at the direction of, others such as you (e.g., a data aggregator, data pool provider, or provider of a data feed).
1.7. “Third Party Data Source Provider” means an owner, proprietor, provider or operator of a Third Party Data Source.
1.8. “Your User(s)” means any person or entity who accesses or uses the Tagglo Service by or through you, your account or user IDs and passwords, or any of your facilities (whether or not such access or use is authorized by you).
2. VENDOR STATUS. You represent and warrant to Stibo that you are, and will be at all times during the Term, an entity engaged in, as a primary line of business, the manufacture, sale or distribution of goods to third parties (such as Retailers) for purposes of further resale or distribution. All licenses granted to you hereunder will terminate immediately and without notice upon any breach of the foregoing representation and warranty.
3. CHANGES TO THIS AGREEMENT. You acknowledge and agree that Stibo may modify any portion of this Agreement in its reasonable discretion; in such case, Stibo will provide notice of such modification (either on the Tagglo Service or to the contact information in your account) and such modifications will become effective on the first day of the next succeeding Subscription Period after notice is given (or a later date if specified by Stibo). You will have the right to terminate use of the Tagglo Service and this Agreement (and receive a refund of any unused, pre-paid fees) if you do not agree to such modifications after such notice – but you will be deemed to have accepted such modifications if you affirmatively accept them or if you do not terminate use of the Tagglo Service and this Agreement before the first day of the Subscription Period in which such modification becomes effective. Unless specifically agreed by you and Stibo, such modifications do not have retroactive effect, and only apply to your use of the Tagglo Service after you accept such modified terms and they become effective. Without limiting the foregoing, any changes to the Section regarding dispute resolution and arbitration will not apply to any claims or disputes of which you or Stibo have actually notified the other on or prior to the date the change becomes effective.
Changes to Tagglo Service features are discussed at Section 4.7. Changes to fees are discussed at Section 5.
4.1. Subscription. Subject to all terms and conditions of this Agreement, including without limitation the payment of charges and fees as set forth herein, Stibo grants to you a limited non-exclusive, personal, nontransferable, nonassignable, non-sublicenseable, revocable license to do the following, only during the Term: (i) to access and use the Tagglo Service to (a) deliver Product Data to the Tagglo Service for processing, (b) access and modify Product Data, (c) make Product Data available via the Tagglo Service to Retailers, and (d) make Product Data available to and from Third Party Data Sources, all in accordance with the Documentation; and (ii) to use the Documentation, solely as reasonably necessary for its exercise of the license granted under subsection (i) above.
4.2. Registration; Provision of Product Data.
4.2.1 Account Information. To use the Tagglo Service, you must provide all information necessary to establish and register your account with the Tagglo Service (e.g., identification and contact information, billing and payment information) and to establish access credentials (e.g., user IDs and passwords). You will ensure that all such information is current, complete and accurate throughout the Term. You will keep all account information, including user IDs and passwords and other means to access non-public portions of the Tagglo Service, confidential and disclose them only on a “need-to-know” basis.
4.2.2 Provision of Product Data to the Tagglo Service: Format and Data Transport. To use the Tagglo Service, you must ensure that Product Data is delivered to the Tagglo Service in a format (e.g., file format, data format), and via a data transport mechanism (e.g., http, FTP), supported by Stibo. Delivery of Product Data in a format, and via a data transport mechanism, supported by Stibo is an express condition to the license at Section 4.1 and Stibo’s obligations under this Agreement at all times, and Stibo will have no liability to you for any inability to use the Tagglo Service, or for any issues with the Tagglo Service, caused by a failure to do so. Options for delivery of Product Data to the Tagglo Service are as follows:
188.8.131.52 Via the Tagglo Service’s User Interface. You may deliver Product Data to the Tagglo Service, and thereafter access and interact with the Product Data, directly via the Tagglo Service user interface in various formats supported by Stibo (as described in the Documentation).
184.108.40.206 Via Data Feed using Stibo-Supported Format and Transport Mechanism – Interface. You may use a data feed to deliver Product Data to the Tagglo Service in a Stibo-supported format via a Stibo-supported data transport mechanism (each as specified by Stibo in Documentation). In such case, Stibo will provide you with applicable interface specifications (which will be deemed to be Documentation and Stibo’s Confidential Information) and you will be responsible for development, testing, implementation and maintenance of an interface between the data feed and the Tagglo Services at your expense. You will not use any such interface to access or interact with the Tagglo Service (including accessing or transmitting data to the Tagglo Service) in any way not expressly permitted in Stibo’s applicable interface specifications or in writing by Stibo. In the event of any new release, version, or modification to the Tagglo Service that adversely impacts the operability of such interface, Stibo will use reasonable efforts to provide you with notice of such change and information reasonably necessary for you to modify the interface so that it maintains operability with the new or modified Tagglo Service. Stibo will have no liability for any defects or errors in, or caused by, the interface developed by you. You agree that, during any period in which the interface described in this Section is not implemented or fully operational with the Tagglo Service, you must deliver Product Data to the Tagglo Service via another method stated in this Section 4.2.2 (for example, via the Tagglo Service user interface).
220.127.116.11 Via Data Feed using Unsupported Format and/or Transport Mechanism. To the extent that you wish to use a data feed to deliver Product Data to the Tagglo Service in a format, or via a data transport mechanism, that is not then currently supported by Stibo, then the Parties will cooperate in good faith to agree upon and successfully implement a mutually-acceptable data format and transport mechanism. You agree that, unless and until such times as the Parties have developed and successfully implemented a mutually-acceptable data format and transport mechanism, you must deliver Product Data to the Tagglo Service via another method stated in this Section 4.2.2 (for example, via the Tagglo Service user interface).
18.104.22.168 Third Party Data Sources. Anything in this Agreement to the contrary, the following additional terms apply when you wish to utilize the Tagglo Service in connection with a Third Party Data Source (for example, to receive Product Data from, or transmit Product Data to, a Third Party Data Source via the Tagglo Service). Your use of the Tagglo Service in connection with a Third Party Data Source (and Stibo’s obligations under this Agreement with respect thereto) will be expressly conditioned at all times upon the existence of, and subject to all applicable terms and conditions of, (i) a then-current agreement in good standing between you and the Third Party Data Source Provider that permits such use and (ii) a then-current agreement in good standing between Stibo and the Third Party Data Source Provider that permits such use. In no event will Stibo have any obligation or liability with respect to any interruptions, delays, delivery failures, or errors in, or inability to fully access and use, the Tagglo Service due in whole or in part to the following: (a) the Third Party Data Source or any act or omission of you or any Third Party Data Source Provider with respect thereto; or (b) any obligation, representation, warranty, term or condition of any agreement between you and any Third Party Data Source Provider (including any breach, termination or expiration of any such agreement).
“Third Party Feed Termination” means (1) any termination or expiration of a then-current agreement between you or Stibo and the Third Party Data Source Provider with respect to the Tagglo Service, and/or (2) any material breach of any agreement described at subsection (1) of this paragraph by you or the Third Party Data Source Provider. This Agreement will not be affected by any Third Party Feed Termination; provided, however, that Stibo will not be liable to you in connection with any Third Party Feed Termination. In the event of a Third Party Feed Termination, you must deliver Product Data to the Tagglo Service via another method stated in this Section 4.2.2 (which may include integration between the Tagglo Service and another Third Party Data Source acceptable to both Parties, if each Party enters into any necessary agreements for such use with the applicable Third Party Data Source Provider).
4.2.3 Stibo Assistance. In the event that work on Stibo’s part is necessary to support your use of Product Data with the Tagglo Service or integration with the Tagglo Service with your systems or with a Third Party Data Source, Stibo may perform such work, subject to your payment of any applicable fees and expenses therefor agreed to by the Parties and, if deemed necessary by Stibo, execution by the Parties of a separate written professional services agreement that sets forth the terms and conditions of such work. Stibo will own all right, title and interest in and to any work product of such work.
4.3. Use of Tagglo Service to Deliver Product Data – Retailers and Third Party Data Sources.
4.3.1 Designation of Retailers and Third Party Data Sources; Conditions. Within the Tagglo Service, you must designate Retailers to whom the Tagglo Service will deliver Product Data, as well as Third Party Data Sources with which the Tagglo Service will exchange Product Data. However, Stibo’s obligation to deliver Product Data to a given Retailer designated by you, or to exchange Product Data with a given Third Party Data Source designated by you, is at all times subject to (i) the consent of the Retailer or the Third Party Data Source Provider (as applicable), (ii) the existence of, and all applicable terms and conditions of, a then-current agreement in good standing between Stibo and the Retailer or Third Party Data Source Provider regarding use of the Tagglo Service, and (iii) all terms and conditions of this Agreement.
In addition, any given Retailer or Third Party Data Source Provider may impose additional procedural, substantive or technical conditions or specifications on your delivery or receipt of Product Data or access to information (such as Retailer Data Criteria (defined at Section 6.2)) relating to such Retailer or Third Party Data Source. Such conditions may include, for example, the existence of a current verified contractual relationship with you, use of specific access credentials or procedures, or compliance with other policies or requirements. You are solely responsible for compliance with and satisfaction of all applicable conditions and specifications imposed by a given Retailer or Third Party Data Source Provider. In no event is Stibo obligated to engage in any independent verification of your compliance with, or satisfaction of, any such conditions or specifications, it being understood that Stibo is entitled to rely, and will rely, solely on information provided by the applicable Retailer or Third Party Data Source Provider with respect thereto. Stibo will have no liability for your inability to fully use the Tagglo Service in connection with a given Retailer or Third Party Data Source to the extent caused by (a) your failure to comply with and satisfy all such conditions and specifications (or a determination of same by the Tagglo Service based on information provided by the applicable Retailer or Third Party Data Source Provider), (b) any Retailer or Third Party Data Source Provider withholding or withdrawing their consent to receive Product Data from (or deliver Product Data to) you via the Tagglo Service, (c) any Retailer or Third Party Data Source Provider’s election to suspend or discontinue interaction with or use of the Tagglo Service, or (d) suspension under, or termination or expiration of, any agreement between Stibo and any Retailer or Third Party Data Source Provider with respect to the Tagglo Service.
You also agree and acknowledge that the Tagglo Service may contain features or functionalities that allow third parties (such as Retailers) to access, review and retrieve Product Data, even where they have not been specifically designated by you to receive Product Data, or that allow third parties (again, such as, Retailers) who have been designated by you to receive Product Data to access, review and retrieve additional Product Data beyond the specific Product Data that you originally designated to be made available to that third party.
4.4. Responsibility for Product Data; Mapping and Validation; Backups. You are solely responsible for any and all Product Data, including without limitation for (i) all data entry and loading of data and the selection, content, currentness, quality and accuracy of Product Data, (ii) choice and designation of Retailers and Third Party Data Sources who you wish to receive or provide given Product Data, as well as which Product Data is provided to or received by each, (iii) proper mapping of Product Data, and implementation of applicable data transformation and other business rules, to meet specific requirements of applicable Retailers and Third Party Data Sources (such as data structure and validation requirements), and (iv) ensuring that all such data and information (and the provision or use thereof in connection with the Tagglo Service) complies with this Agreement and all applicable laws, rules and regulations. You are solely responsible for creating and maintaining complete, up-to-date backups of your data (including Product Data). Stibo will not be responsible for any loss or corruption of your data, “downtime” or inability to access your data, loss or corruption of other software program files associated with the provision of the Tagglo Service or its other performance hereunder, whether arising in contract, tort, negligence, strict liability or otherwise, except for the willful destruction of your data or program files by Stibo in violation of this Agreement.
4.5. Electronic Communications; Connectivity. You consent to use and receipt of electronic communications and records related to the Tagglo Service or your account throughout the Term (which communications and records may include, without limitation, notices of failures in Product Data transmission, receipt or validation or other issues with the Tagglo Service requiring your attention, agreements and policies required to use the Tagglo Service, and payment authorizations and transaction receipts or confirmations). You give Stibo permission to provide these communications and records to you electronically instead of in paper form. You also consent to the use of electronic signatures by you and Stibo, and such electronic signatures will be deemed to satisfy any requirement under applicable law that an agreement, or that a Party’s signature to the agreement, be in writing signed by the Party. Minimum hardware, software and connectivity requirements for you and Your Users to access, interact with, and exchange data with the Tagglo Service and make and receive such communications, records and signatures are set forth in the Documentation, and You are solely responsible for procuring and maintaining all such necessary hardware, software and connectivity throughout the Term. Stibo has no liability for any inability to fully use the Tagglo Service or to receive, make or act upon such electronic communications, records or signatures if caused by (i) your failure to procure and maintain all necessary hardware, software and connectivity, (ii) any act or omission of any provider of such hardware, software and connectivity, or (iii) your failure to keep all contact information, billing and payment information and other account-related information current, complete and accurate at all times. You may withdraw the consents given in this Section on written notice to Stibo but such withdrawal will be deemed to terminate your right to access or use the Tagglo Service as of the date such notice is given.
4.6. Cooperation. In addition to all of your other obligations hereunder, you agree that you will cooperate with and assist Stibo to the extent necessary for the implementation and provision of the Tagglo Service and will provide any performances and resources reasonably necessary in connection therewith. You expressly acknowledge and agree that proper provision of the Tagglo Service is dependent upon your provision of timely and accurate information regarding (i) your needs and expectations regarding the Tagglo Service, and (ii) all operational, business or other information which is relevant to the provision of the Tagglo Service, and you agree to provide Stibo with all such information on a timely and accurate basis. The Parties expressly agree that Stibo’s obligations and warranties hereunder are expressly conditioned on your performance under this Section.
4.7. Changes to Tagglo Service. From time to time, Stibo may add, delete and/or modify features and functionalities of the Tagglo Service as it deems necessary or desirable in its sole business discretion and the applicable Documentation will be deemed automatically amended to reflect same. However, if such addition, deletion and/or modification removes or degrades a material feature or functionality of the Tagglo Service, you may terminate use of the Tagglo Service and this Agreement and receive a refund of an equitable portion of any unused prepaid Subscription Fees by giving written notice to Stibo before the last day of the Subscription Period in which such addition, deletion and/or modification is implemented, which right of termination and refund (if any) will be your sole and exclusive remedy for such removal or degradation. With respect to new or additional Tagglo Service features, additional terms and/or fees may apply to these features, and subscribing to or using such new or additional features after notice of such additional terms and/or fees constitutes your acceptance of such additional terms and fees, which will become part of this Agreement (and if such additional terms conflict with other terms of this Agreement, such additional terms will control but only with respect to such new or additional features).
5. FEES AND PAYMENTS.
5.1. Fees. You agree to pay Stibo as follows. All payments will be made in U.S. Dollars.
5.1.1 Subscription Fees; Other Fees; Pilot Period. Generally, and except during any Pilot Period that Stibo agrees to (see below), you will pay a recurring Subscription Fee for access to and use of the Tagglo Service as described in Section 4.1 (“Subscription Fee”) during each one (1) calendar month period (“Subscription Period”) throughout the Term. Current applicable Subscription Fees are described in Stibo’s Pricing Terms, and payment of the Subscription Fee only entitles you to access and use the Tagglo Service during the applicable Subscription Period for which the Subscription Fee is paid in full, and only for the level of usage covered by the applicable Subscription Fee. Subject to any Pilot Period that Stibo agrees to (see below), the Subscription Fee for the initial Subscription Period, along with any set-up fee or other upfront fee described in Stibo’s Pricing Terms or agreed to by the Parties, is due upon your initial registration with the Tagglo Service. (The initial Subscription Period commences upon your initial registration with the Tagglo Service, and, if your initial registration occurs on a date other than the first day of the calendar month, then (and, again subject to any Pilot Period (see below)), the first Subscription Fee due for the initial Subscription Period will be prorated.) Subsequent Subscription Fees are due no later than the first day of the applicable Subscription Period to which the fee pertains. Subscription Fees are in addition to (i) any fees and expenses incurred by Stibo in connection with its performance under Section 4.2.3, all of which will be due upon invoice by Stibo, and (ii) any additional fees associated with specific Tagglo Service features that are not expressly included in the Subscription Fee. If you exceed the level of usage covered by the applicable Subscription Fee you paid, you agree that you will pay Stibo for the excess usage as a condition to continued usage of the Tagglo Service.
Stibo may agree to waive Subscription Fees and/or other fees for the initial Subscription Period and/or a limited number of Subscription Periods as determined by Stibo (“Pilot Period”), and, if Stibo has notified you that a Pilot Period applies to you, you will be entitled to use the Tagglo Service during the Pilot Period without paying Subscription Fees for any Subscription Periods that fall within the Pilot Period. (If Stibo has not notified you that a Pilot Period applies to you, then no Pilot Period applies.) Stibo will notify you in advance of the end of the Pilot Period in accordance with the Section below called “Fee Changes – Thirty (30) Day Notice” (unless Stibo has already notified you of a definite end date for the Pilot Period). If you wish to continue using the Tagglo Service after the Pilot Period, you will need to review Stibo’s then-current Pricing Terms and notify us (through the applicable functionality of the Tagglo Service) that you agree to pay the applicable Subscription Fees and other fees for Subscription Periods after the Pilot Period. Otherwise, your right to use the Tagglo Service will be suspended as of the last day of the Pilot Period, and Stibo may consider this Agreement terminated as of such date.
Stibo has no obligation to perform hereunder during any period in which all applicable fees have not been paid in full and, in addition to any other right hereunder, may immediately, and without any liability to you, suspend or terminate performance hereunder, including your access to or use of the Tagglo Service, upon non-payment or upon expiration of any Subscription Period. Where you have committed to one or more Subscription Periods in advance, any applicable Subscription Fees will continue to accrue during any period of suspension (or during any period in which you have elected to suspend use of the Tagglo Service) until this Agreement is terminated.
5.1.2 Reinstatement. If you fail to pay the applicable Subscription Fee or other amounts when due (or you elect to suspend use of the Tagglo Service) and thereafter you wish to reinstate use of the Tagglo Service during the Term, then such reinstatement will be conditioned upon payment of the Subscription Fee for the current Subscription Period and other unpaid amounts, along with any fees and expenses, if any, incurred by Stibo in connection with such reinstatement (e.g., restoration of data, other activities necessary for reinstatement).
5.1.3 Fee Changes – Thirty (30) Day Notice. Stibo reserves the right to change fees (including changing Subscription Fees or implementing new or different fees) applicable to future Subscription Periods. Stibo will provide you with notice of these changes (either on the Tagglo Service or to the contact information for your account) at least thirty (30) days before the first day of the Subscription Period in which such changed or new fee(s) becomes effective. You will be deemed to have consented to such changed or new fees if You do not terminate use of the Tagglo Service and this Agreement before the first day of the Subscription Period in which such changed or new fee(s) becomes effective, and this Agreement will be deemed automatically amended to reflect such fees as of the first day of the Subscription Period in which such changed fee(s) becomes effective. (Where you and Stibo have committed to more than one Subscription Period in advance at a specific rate and that rate is changed, the changed rate will not start to apply to you until the first Subscription Period following the Subscription Period(s) you and Stibo committed to.)
5.2. Automatic Payment; Credit Card. Where you elect, and Stibo accepts, payment of Subscription Fees or other amounts payable hereunder by an automated method (e.g., ACH, credit card), you must provide Stibo or its designee with accurate applicable information to bill and collect such amounts (e.g., valid credit card information, applicable banking/ACH information) and keep such information current, accurate and complete throughout the Term. You authorize Stibo or its designee to charge/debit your account for amounts payable hereunder. Without limiting the foregoing, you authorize Stibo to charge/debit your account for the Subscription Fee for the next Subscription Period within five (5) business days before the end of the then-current Subscription Period, unless you have notified Stibo or its designee in writing, no later than ten (10) business days before the end of the then-current Subscription Period, of your election either to not renew the Tagglo Service or to make payment of such Subscription Fee by another payment method. You also authorize Stibo to credit your account in the event that a charge/debit is made in error or refunds or other amounts are due to you from Stibo. You represent that you are not a “consumer” within the meaning of the Electronic Funds Transfer Act (15 U.S.C. §1693 et seq.) or California Business and Professions Code §17600, et seq.. With respect to ACH, your authorizations will remain in full force and effect until you notify Stibo that you revoke such authorizations, and you acknowledge that Stibo requires at least five (5) business days’ prior notice in order to cancel your authorization for ACH debits. Revocation of authorization for ACH does not relieve you of your payment obligations hereunder, and does not affect Stibo’s right to initiate ACH credits to your account to correct or adjust any debits that were processed before the revocation became effective. You acknowledge that ACH debits are electronic transactions and the funds may be withdrawn from your account immediately on the periodic transaction dates described above. You are solely responsible for any additional fees or charges imposed on you in connection with such payments by any financial institution, processor or intermediary, including interest charges and processing fees. You certify that you are the owner or an authorized user of the applicable credit card/bank account. You acknowledge that amounts charged to/debited from your account in accordance with this Agreement are non-refundable except, and only to the extent of, an overcharge or excess charge/debit due to Stibo’s error, and you agree that you will not dispute the scheduled transactions, provided the transactions correspond to the terms indicated in this Agreement. In the event any charge/debit is not fully honored, you will make immediate payment to Stibo via another method in readily-available funds.
Stibo will have no liability for any losses of any kind that you may incur as a result of an erroneous debit or credit (unless due to Stibo’s gross negligence or willful misconduct), any delay in the actual date on which your account is debited or credited, or your failure to provide accurate and/or valid payment information or to have necessary funds available, including but not limited to any additional fees, charges, or other inconveniences imposed by any financial institution, processor or intermediary (such as overdraft fees).
5.3. Expenses. In addition to payment of the fees, you agree to reimburse Stibo for all reasonable out-of-pocket expenses incurred in its performance hereunder specifically for you (for example, in connection with Stibo’s performance under Section 4.2.3) and for any expenses incurred at your written request. Expenses may include, without limitation, travel, shipping, meals, and lodging.
5.4. Payment Terms. Amounts due hereunder which remain unpaid thirty (30) days after the date due will accrue interest at a rate which is the lesser of one and a half percent (1.5%) per month or the maximum interest rate otherwise allowed by law until paid in full. Expenses will be included on an invoice only to the extent that the actual amount of expenses is known to Stibo at the time the invoice is issued, and expenses for which an actual amount is not known to Stibo at the time an invoice is issued may be included on subsequent invoices. Unless otherwise agreed in writing by the Parties, the failure of Stibo to include earned or incurred fees or expenses on a given invoice will not relieve you of your obligation to pay such fees or expenses. Unless expressly set forth in this Agreement, all fees are non-cancelable and non-refundable.
5.5. Taxes. The fees and all other amounts due to Stibo as set forth in this Agreement are net amounts to be received by Stibo, and are exclusive of, and you will be responsible for, and promptly pay, all sales, use, excise, value-added or similar taxes, assessments, or duties (or other similar charges) imposed by any government agency with respect to this Agreement (excluding taxes imposed on Stibo’s net income). The fees and all other amounts due to Stibo as set forth in this Agreement are not subject to offset or reduction because of any taxes, assessments, or duties (or other similar charges) incurred by you or otherwise due as a result of this Agreement.
6. USE OF TAGGLO SERVICE.
6.1. Use of Tagglo Service; Reservation of Rights. Stibo and its licensors hereby reserve all rights, title and interest in and to the Tagglo Service and Documentation, along with all of Stibo’s or its licensors’ (other than you) proprietary technology owned or used by Stibo, or made available to you by Stibo, in providing the Tagglo Service, except for the rights expressly granted herein, and you agree that you will not, and you will cause Your Users to not, make any use of any of the foregoing in any manner or for any purpose whatsoever except as expressly permitted by this Agreement. Without limiting the foregoing, in no event will you or Your Users do any of the following:
- use the Tagglo Service or Documentation in violation of this Agreement or in violation of any applicable laws, rules or regulations;
- license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available the Tagglo Service or Documentation to any third party in any way;
- copy, modify, adapt, publicly display or publicly perform or create Derivative Works of the Tagglo Service or Documentation or any portion thereof, or decompile, reverse assemble, or otherwise reverse engineer the Tagglo Service, or any portion thereof, except to the extent otherwise expressly permitted by law;
- attempt to gain unauthorized access to, or otherwise impair the security or integrity of, (i) the Tagglo Service or any portion thereof or information accessible thereby (including information of third parties) or (ii) any systems or data of Stibo or a third party (including any other user of the Tagglo Service); or
- use the Tagglo Service to process, store, transmit or receive any data or information that:
- is not Product Data or other data or information expressly permitted by Stibo in this Agreement or in the Documentation;
- is confidential or proprietary to a third party (unless you have obtained all necessary rights and consents to provide the same to Stibo and for Stibo to fully exercise the licenses granted in this Agreement), or infringes or violates any right of a third party (including intellectual property rights or privacy, publicity or other personal rights);
- is illegal, defamatory, harassing, indecent, obscene, offensive, false or misleading, threatening, abusive, invasive of privacy or hateful (as determined in Stibo’s reasonable discretion);
- is subject to, or would subject Stibo to, data privacy, import/export or other legal obligations or regulations anywhere in the world with respect to such information or material or any goods or services to which such information relates; or
- is not, or the processing, storage, transmission or receipt thereof is not, fully compliant with all applicable laws, rules or regulations.
While Stibo has no responsibility to investigate or verify any such data or information, Stibo may refuse, delete, remove or disable access to any data or information where required by applicable law, rule or regulation or if Stibo reasonably believes that such data or information or use thereof in connection with the Tagglo Service is not compliant with this Agreement or applicable laws, rules and regulations.
6.2. Retailer Data Criteria. You acknowledge that, through use of the Tagglo Service, you may become privy to data structures, validation requirements and methods, and other data requirements or criteria that are confidential or proprietary to, or a trade secret of, a given Retailer (individually and collectively “Retailer Data Criteria”). Without limiting any other provisions of this Agreement, in no event will you or any of Your Users: (i) use any such Retailer Data Criteria for any purpose other than to provide Product Data to the applicable Retailer via the Tagglo Service in conformity with the Retailer Data Criteria; (ii) disclose such Retailer Data Criteria or any portion thereof to any third party; (iii) copy, modify, adapt, publicly display or publicly perform or create Derivative Works of such Retailer Data Criteria or any portion thereof; or (iv) decompile, reverse assemble, or otherwise reverse engineer such Retailer Data Criteria, or any portion thereof, except to the extent otherwise expressly permitted by law. Retailer Data Criteria are trade secrets and, as between the Parties, will be deemed to be Stibo’s Confidential Information.
6.3. Licenses in Your Content and Related Data. You hereby grant to Stibo a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, assignable, transferable and sublicenseable (at multiple levels) right and license to use, reproduce, disclose, adapt, translate or transform, publish, distribute (internally and externally), perform and publicly display copies of, and prepare Derivative Works based upon, the Your Content (defined below) and derivatives thereof, and authorize others to do any of the foregoing, as reasonably necessary to (i) use Your Content in connection with the Tagglo Service and provide the Tagglo Service to you and/or others, regardless of the form, medium, or technology being employed to provide the Tagglo Service, (ii) use and disclose information contained in or derived from Your Content or Related Data, on an anonymous (de-identified) basis only, for statistical, analytical, research, marketing, product/service improvement, and similar purposes, and (iii) exercise its other rights, and perform its other obligations, under this Agreement. “Related Data” means data or information associated with or arising out of your or any of Your User’s use of the Tagglo Service (including without limitation data associated with requests made to, and responses generated in connection with, the Tagglo Service). Neither Stibo nor any of its sublicensees will have any duty to compensate or account to you or Your Users for or in connection with the exercise of any of the foregoing rights. This Section 6.3 will survive the termination or expiration of this Agreement for any reason.
6.4. Your Content; Indemnification. “Your Content” means any materials, data or information that you or any of Your Users, from time to time during the Term, delivers or makes available (or causes to be delivered or made available) to Stibo in connection with Stibo’s performance hereunder or are utilized in connection with, or incorporated into, the Tagglo Service, including without limitation, Product Data, Feedback, or confidential information, trade secrets, copyrights, trademarks, patentable subject matter or intellectual property of you or of third parties. You hereby represent, warrant and covenant to Stibo that: (i) prior to delivering or making available such Your Content to Stibo or using it in connection with the Tagglo Service, you have secured or will secure from all owners or proprietors of any and all of Your Content all rights in, and consents of third parties with respect to, such Your Content reasonably necessary for Stibo and its agents, and subcontractors to lawfully perform hereunder and to do all acts related thereto described in this Agreement (including exercising any licenses granted hereunder); and (ii) you will maintain all rights and consents set forth at subsection (i) throughout the Term and for so long thereafter as any license granted to Stibo in such Your Content survives.
You agree to defend, indemnify and hold harmless Stibo and its successors or assigns, affiliates, subsidiaries, officers, directors, employees, agents, and independent contractors (each individually an “Indemnitee” and collectively “Indemnitees”) against any and all claims, liability, loss, damage, or harm (including without limitation reasonable legal and accounting fees) suffered by such Indemnitees arising from or in connection with (a) your breach of any provision of this Agreement, or (b) any of Your Content, including without limitation any claim by any third party (1) under any law, rule or regulation that would treat Stibo as the publisher, promoter, manufacturer, distributor or seller of Product Data or of any goods to which the Product Data relates (including without limitation claims sounding in or based upon, inaccuracies or omissions, misrepresentation, warranty or product liability), or (2) that Your Content or the use thereof by any Indemnitee in accordance with this Agreement infringes any right of such third party. All Indemnitees are expressly made third party beneficiaries of this Section.
6.5. Audit. Stibo will have, at all times, the right (but not the obligation) to monitor your and Your Users’ usage of the Tagglo Service as Stibo deems necessary to perform its obligations, and exercise its rights, hereunder and to determine whether such use of the Tagglo Service is in compliance with all terms and conditions of this Agreement, and you consent to such monitoring on behalf of yourself and all of Your Users. In addition, you grant Stibo the right, which Stibo will exercise at its own expense, to examine your records and other information relating to your use of the Tagglo Service. If this examination reveals that you or any of Your Users’ use of the Tagglo Service was not in compliance with all terms and conditions of this Agreement and applicable laws, rules and regulations or reveals other failures to comply with this Agreement, then, without limiting any other right or remedy available to Stibo, you agree to pay Stibo’s reasonable costs of conducting the examination.
7. OWNERSHIP; FEEDBACK.
7.1. Ownership. You acknowledge that, as between the Parties, Stibo and/or its licensors will own all rights, title, and interest in the Tagglo Service, Documentation, Stibo’s Confidential Information and Stibo Marks, along with all of Stibo’s or its licensors’ (excluding your) proprietary technology owned or used by Stibo, or made available to you by Stibo, in providing the Tagglo Service (and all Derivative Works thereto and copies thereof), including but not limited to all worldwide copyrights, trade secrets, trademark, confidential, and proprietary rights therein. Neither you nor Your Users will acquire any right, title or interest, express or implied, in or to any of the foregoing other than those specified in this Agreement. No portion of any products, services or other subject matter delivered, generated or developed by Stibo or its affiliates, sublicensees or subcontractors in connection with this Agreement (including work product of any Stibo services) will be deemed to be either (i) a work made for hire for you or Your Users, or (ii) a joint development, joint invention or joint work of authorship with you or Your Users. To the extent that any right or title to any part of such products, services or other subject matter does not vest in Stibo in accordance with the foregoing, you hereby assign (and will, upon future creation thereof, be deemed to automatically assign without further action or consideration) to Stibo or its designee, to the fullest extent permitted by law, all right, title and interest in and to (including ownership of) such products, services and other subject matter (including without limitation ownership of all copyrights in all copyrightable subject matter therein), and Stibo or its designee will have the right to obtain and hold in its own name copyrights, registrations and similar protections related thereto to the extent available. “Stibo Mark(s)” means the trademarks, service marks, trade names and logos used by Stibo to identify its products and/or services. “Derivative Work(s)” means, individually and collectively, any updates, enhancements, improvements, additions, modifications, adaptations or derivative works to or of the given subject matter or any portion thereof.
7.2. License in Feedback. “Feedback” means, individually and collectively, any of the following (in any form and of any type) relating to the Tagglo Service, Documentation or Stibo’s business, products or services: ideas; information, comments, critiques, assessments, suggestions and recommendations (including functional/performance or feature requests and comments, suggestions or recommendations for the modification, correction, improvement or enhancement of Tagglo Service, Documentation or any current or future Stibo product, service or process, and information regarding your business processes, needs and expectations relevant to the Tagglo Service, Documentation or Stibo’s products, services or processes); requirements or specifications; performance testing results; reports relating to issues, defects or “bugs”; and responses to Stibo’s inquiries. You hereby grant to Stibo a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, assignable, transferable and sublicenseable (at multiple levels) right and license to do the following with respect to any Feedback disclosed, provided or made available to Stibo at any time by (or at the direction of) you or Your Users during the Term: (i) use the Feedback in any manner Stibo chooses; (ii) copy, disclose, distribute (internally and externally), publicly perform and publicly display copies of the Feedback and prepare Derivative Works based upon, the Feedback and derivatives thereof; (iii) make, have made, use, sell, offer to sell, and otherwise dispose of products and services embodying or reflecting the Feedback in any manner via any media, and otherwise commercialize and exploit Feedback in any product or services; and (iv) authorize others to do any of the foregoing. Neither Stibo nor any of its sublicensees will have any duty to compensate or account to you or Your Users for or in connection with any use of Feedback or an exercise of any of the foregoing rights. This Section will survive the termination or expiration of this Agreement for any reason. You agree that you and Your Users will not provide Stibo with any Feedback that consists, in whole or in part, of information or materials that are confidential or proprietary to a third party (unless you have obtained all necessary rights and consents to provide the same to Stibo and for Stibo to exercise the license in such Feedback specified in this Section).
8.1. Confidential Information Defined; Exclusions. For purposes of this Agreement, “Confidential Information” means data and information (regardless of form, whether tangible, intangible, or merely recollected): (i) relating to the business of Stibo, regardless of whether the data or information constitutes a “trade secret” as that term is defined under applicable law; (ii) disclosed to you or Your Users or of which you or Your Users became aware of as a consequence of your relationship with Stibo; (iii) having value to Stibo; and (iv) not generally known to competitors of Stibo; provided, however, that such term will not mean data or information: (A) which Stibo has voluntarily disclosed to the public; (B) which you or Your Users have independently developed; or (C) that has otherwise entered the public domain or become publicly known through lawful means. Subject to these exceptions, Confidential Information expressly includes the Tagglo Service and Documentation, and further includes any information described above which Stibo obtains from third parties that Stibo treats as confidential or designates as “Confidential Information”, whether or not owned or developed by Stibo (such as Retailer Data Criteria).
8.2. Restrictions on Use and Disclosure. Except (and only to the extent) as may be expressly permitted elsewhere in this Agreement or as authorized by Stibo in writing, neither you nor Your Users will disclose any Confidential Information to any third party (other than your legal and financial advisors) nor use any Confidential Information for any purpose (except to the extent required or permitted for your use of the Tagglo Service or your performance in furtherance of this Agreement). Without limiting any other obligation under this Agreement, you agree to use commercially reasonable efforts to cause all of Your Users and all third parties to whom you disclose Confidential Information to protect such Confidential Information from disclosure and use to the same extent that you are obligated to protect such Confidential Information hereunder. These confidentiality obligations will not restrict any disclosure required by order of a court or any government agency, but you agree to give Stibo prompt notice of any such order before such disclosure and reasonably cooperates with Stibo (at Stibo’s request and expense) to resist such order or to obtain a protective order.
8.3. Injunctive Relief, Survival. You acknowledge that, upon the breach or threatened breach of any provision contained in this Section 8, Stibo will be without an adequate remedy at law, and would suffer or be threatened with irreparable injury, and that Stibo will have the right to obtain immediate injunctive relief against such breach or threatened breach, in addition to all other remedies hereunder, in equity and at law. This Section 8 will survive expiration or termination of this Agreement for any reason whatsoever. Your obligations to maintain Confidential Information as confidential under this Section 8 will continue until such time as such information is no longer confidential or a trade secret under applicable law, and all other obligations under this Section 8 will continue (i) with respect to Confidential Information which constitutes a trade secret under applicable law, until such time as such information no longer constitutes a trade secret under applicable law due to no fault of Stibo, and (ii) with respect to all other Confidential Information, for a period of three (3) years after the date such Confidential Information is disclosed to you or Your Users. Nothing in this Section 8 will be construed to limit any rights or remedies afforded to Stibo or a Retailer under any applicable law.
9. TAGGLO SERVICE STANDARDS.
9.1. Tagglo Service Standards. Subject to all terms and conditions of this Agreement (including without limitation timely payment), Stibo will use commercially reasonable efforts to provide the Tagglo Service in accordance with generally-accepted industry standards applicable to the provision of hosted services such as the Tagglo Service (including generally-accepted standards of availability, uptime, security and redundancy, taking into account the nature of the data being stored or processed and the business impact of unavailability of the Tagglo Service) designed to provide the Tagglo Service in accordance with the Documentation, free of material recurring interruptions or degradations in functionality or availability. Stibo will use commercially reasonable efforts to respond to reported issues or errors in the operation of the Tagglo Service in accordance with Stibo’s support policies for the Tagglo Service and to mitigate reported issues or errors that materially and adversely impair the performance of the Tagglo Service. You acknowledge that the Tagglo Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications, and Stibo will not be liable for any delays, delivery failures, or damages resulting from such limitations, delays, and other problems.
9.2. Exclusions. Anything in this Agreement to the contrary notwithstanding, Stibo will not be deemed in breach of any obligation, representation or warranty in connection with the Tagglo Service or this Agreement where the alleged breach arises from or in connection with (i) Your Content or materials or information supplied by third parties, (ii) acts or omissions of third parties, (iii) your breach of this Agreement, (iv) any use by you or any of Your Users of any services, data, information or materials provided by Stibo other than in accordance with this Agreement and all applicable laws, rules and regulations, (v) any use of any services, data, information or materials provided by Stibo in combination with any other product or service not provided by Stibo, or (vi) any changes or modifications by any person or entity other than by Stibo to any services, data, information or materials provided by Stibo.
9.3. Disclaimer. Except as specifically provided otherwise in this Agreement, Stibo makes no warranty, express or implied, with respect to the Tagglo Service, Documentation or any other subject matter, and all warranties, express or implied, contractual or statutory, including but not limited to the implied warranties of title, merchantability, fitness for a particular purpose and noninfringement, are hereby expressly excluded and disclaimed. Without limiting the foregoing, Stibo does not warrant that the Tagglo Service or Documentation will meet your requirements or expectations, that the Tagglo Service will operate in the combinations that you may select for use, that the operation of the Tagglo Service will be uninterrupted or error-free or completely secure or free of hacking or other security intrusions, or that all errors or issues will be corrected.
10. LIMITATION OF LIABILITY.
Any other provision of this Agreement to the contrary notwithstanding, the liability of Stibo for any losses or damage, whether direct or indirect, arising out of, in connection with or related to this Agreement or the Tagglo Service from any cause whatsoever, including without limitation any cause of action sounding in contract, tort or strict liability, will be limited to actual, direct damages incurred but in no event will exceed, in the aggregate for all liabilities arising out of, in connection with or related to this Agreement or the Tagglo Service at any time, the total fees and expenses actually received by Stibo from You during the six (6) month period immediately preceding the date on which the most recent act or omission giving rise to Stibo’s liability under this Agreement occurred. Stibo will not be liable for lost profits or other consequential damages, cover damages, or for any claims against you by any third party, even if Stibo was advised of the possibility of same. Under no circumstances will Stibo be liable for special damages, general damages, incidental damages, indirect damages, or exemplary or punitive damages. Anything in this Agreement to the contrary notwithstanding, your remedies are limited to those expressly set forth in this Agreement. The limitations and exclusions in this Section will apply to the fullest extent permitted by applicable law, and will continue to apply even in the event a warranty or remedy fails of its essential purpose. No action arising out of, in connection with or related to the Tagglo Service or this Agreement, regardless of form, may be brought by you against Stibo more than one (1) year after commission of the act or omission which gave rise to the cause of action. This Section will survive termination or expiration of this Agreement for any reason.
The foregoing does not affect any liability which cannot be excluded or limited under applicable law. Certain laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. if these laws apply to you, some or all of the disclaimers, exclusions, or limitations in this Agreement may not apply to you, and you might have additional rights.
11. TERM AND TERMINATION
11.1. Term. The term of this Agreement (the “Term”) starts when this Agreement first becomes effective and will continue until terminated as provided herein or elsewhere in this Agreement. Either Party may terminate this Agreement (and Stibo will have the right to discontinue the Tagglo Service) for any reason upon notice to the other, and such termination or discontinuation will be effective as of the last day of the most-recent Subscription Period for which all applicable Subscription Fees were paid in full by you (or as of a later date, if specified by Stibo if Stibo is terminating the Agreement or discontinuing the Tagglo Service). In addition, in the event you fail to make payment in full of any Subscription Fee by the first (1st) day of the Subscription Period to which the Subscription Fee pertains, Stibo may, without notice to you, deem this Agreement terminated as of the last day of the most-recent Subscription Period for which all applicable Subscription Fees were paid in full by you.
11.2. Termination for Cause. Either Party may terminate this Agreement at any time upon giving written notice in the event that the other Party materially breaches this Agreement and fails to correct the breach (i) with respect to breaches of obligations of confidentiality or of a license or restriction on use hereunder, within ten (10) calendar days after written notice specifying the breach, and (ii) with respect to all other material breaches of this Agreement, within thirty (30) days after written notice specifying the breach.
11.3. Suspension. Notwithstanding anything in this Agreement to the contrary, Stibo reserves the right to suspend its performance hereunder and/or your and any of Your Users’ access to or use of the Tagglo Service in the event of (i) a breach of this Agreement by you (including failure to make any payment when due) or (ii) any act or omission of any of Your Users which (a) would constitute a violation of this Agreement if done (or, in the case of an omission, not done) by you or (b) in Stibo’s reasonable discretion, poses a risk of disruption or interference with the Tagglo Service (or the security or integrity thereof) or with any other user’s use of the Tagglo Service. Where you have committed to one or more Subscription Periods in advance, all fees will continue to accrue and be payable during any period of suspension pursuant to this Agreement.
11.4. Post-Termination Obligations. Upon termination of this Agreement, all rights and licenses granted by Stibo hereunder (including without limitation any right to access or use the Tagglo Service) will immediately cease and be terminated, and you will immediately return to Stibo all Stibo property, including, but not limited to, Documentation and Confidential Information and all copies thereof. Upon return of such materials, you will provide Stibo with a signed written statement certifying that you have returned all Stibo property to Stibo and complied with this Section 11.4. Termination of this Agreement will not relieve you of your obligation to pay all fees and expenses that are owed by you under this Agreement as of the termination or that come due after termination (e.g., for post-termination assistance by Stibo under Section 11.5).
11.5. Retrieval and Disposition of Data; Assistance. Stibo may (but is not obligated to) delete Product Data and other Your Content stored in the Tagglo Service or in Stibo’s possession, custody or control sixty (60) days after (i) the end of the most-recent Subscription Period for which all applicable Subscription Fees were paid in full by you, (ii) either Party terminates this Agreement, or (iii) the date on which your right to access or use the Tagglo Service has been suspended in accordance with this Agreement, if such suspension continues for sixty (60) days (whichever of (i), (ii) or (iii) occurs first). During such sixty (60) day period, Stibo will grant you limited access to the Tagglo Service only to retrieve a copy of your Product Data via the user interface to the Tagglo Service; provided, however, that Stibo will not be obligated to grant such access during any period in which your right to access or use the Tagglo Service remains suspended or where this Agreement was terminated by Stibo for cause (and Stibo will have no liability to you for any inability to access or retrieve Product Data or other information in such circumstances). Stibo may immediately terminate such access in the event you or any of Your Users attempt to make any use of the Tagglo Service other than to retrieve a copy of your Product Data via the user interface or fails to comply with this Agreement in any other way. In the event that work on Stibo’s part is necessary to support your retrieval of Product Data, Stibo may perform such work, and you will pay any applicable fees and expenses therefor at Stibo’s then-current rates.
11.6. Survival of Terms. The following provisions of this Agreement will survive termination or expiration of the Agreement for any reason whatsoever: Sections 5, 6, 7, 8, 9.3, 10, 11.4, 11.5, 11.6, 12, 13.1, 13.3, 13.5, 13.8, 13.9, 13.11, and 13.12.
12. DISPUTE RESOLUTION AND ARBITRATION.
12.1. AGREEMENT TO ARBITRATE.
You and Stibo agree that any dispute or claim arising out of or in connection with, or relating in any way to, this Agreement or the Tagglo Service (including questions of arbitrability) (a “Dispute”) will be resolved exclusively by binding arbitration. Except for an action to obtain interim or provisional relief described in the last paragraph of this section 12.1, and an action to enforce the provisions of this Section 12.1, neither Party will file or commence any legal action to resolve a Dispute.
To begin an arbitration proceeding, the Party seeking arbitration must first give written notice to the other describing the Dispute(s) to be arbitrated. If you and Stibo are unable to resolve the Dispute(s) described in the notice within thirty (30) days after the notice is received by the other Party, you or Stibo may initiate arbitration proceedings.
The arbitration will be administered by Henning Mediation & Arbitration Service, Inc. (“HMA”) In accordance with the Expedited Procedures of the American Arbitration Association’s Commercial Arbitration Rules And Mediation Procedures (the “Rules”). More information about HMA can be found at www.henningmediation.com. The arbitration hearing and all proceedings in connection therewith will take place in Atlanta, Georgia, U.S.A.; however, either you or Stibo can choose to have the arbitration conducted by telephone if permitted by the Rules. The arbitration will be conducted by a single arbitrator experienced in technology and software law selected by you and Stibo from HMA’s panel of arbitrators, or, if you and Stibo are unable to agree on the selection, by an arbitrator experienced in technology and software law appointed by HMA. The award will be rendered within thirty (30) days of the conclusion of the arbitration hearing, and the arbitrator will not render a reasoned award unless both Parties request such an award in writing prior to appointment of the arbitrator. The decision of the arbitrator will be final and binding on both you and Stibo, and any award thereon may be entered and enforced in any court of competent jurisdiction, including pursuant to the United States Convention on the Recognition and Enforcement of Foreign Arbitral Awards (where applicable). The Party seeking enforcement of such award will be entitled to an award of all costs, fees and expenses, including reasonable attorneys’ fees, to be paid by the Party against whom enforcement is ordered.. The arbitration will be conducted in English. Each Party will bear its own fees and expenses of arbitration and participating in such arbitration, and all fees and expenses of the arbitrator and HMA will be divided equally between you and Stibo, unless otherwise agreed in writing by you and Stibo or awarded by the arbitrator. Except as may be required by law, neither Party nor the arbitrator will disclose the existence, content or results of any arbitration hereunder.
This agreement to arbitrate will not prohibit you or Stibo from applying to a court (subject to the exclusive venue and jurisdiction provisions of Section 13), for injunctive or other equitable relief only, as may be necessary to protect a Party’s intellectual property rights or rights in Confidential Information, but all other relief sought, and all other Disputes, will remain subject to this agreement to arbitrate.
12.2. WAIVER OF CLASS ACTION. You agree that you may bring claims against Stibo only on an individual basis and not as a plaintiff or class member in any purported class or representative or private attorney general action or proceeding. You hereby waive, to the fullest extent permitted by applicable law, your rights to bring claims against Stibo as a plaintiff or class member in any purported class or representative or private attorney general action. You and Stibo agree that the arbitrator may not consolidate or join more than one person’s or party’s claims, and may not otherwise preside over any form of a consolidated, representative, class, or private attorney general action or proceeding.
13. GENERAL PROVISIONS.
13.1. Export. In the event that Stibo or this Agreement permits the exportation of, or access to any of, the Tagglo Service, Documentation, data or information outside the U.S. or under circumstances that would constitute a “deemed export”, you will be solely responsible for compliance with all applicable U.S. export laws, rules, and regulations and all applicable laws, rules, and regulations of any jurisdiction(s) to or through which the Tagglo Service, Documentation, data or information are transmitted, transported or imported or from which the foregoing are accessed. You agree to keep such books and records and to take other actions as may be required by such applicable laws, rules, and regulations, and to defend, indemnify, and hold harmless the Indemnitees against any and all claims, liability, loss, damage, or harm (including without limitation reasonable legal and accounting fees) arising from or in connection with your failure to comply with any such laws, rules or regulations. All Indemnitees are expressly made third party beneficiaries of this Section.
13.2. Publicity. You grant Stibo the right (only during the Term) to use your business name, trademark(s) or trade name(s) only to describe you as a customer of Stibo or user of the Service as reasonably necessary to provide the Service and in communications with customers and prospective customers (for example, to identify you as a vendor who can provide Product Data to Retailers via the Service).
13.3. Responsibility for Your Users and Others. You agree that you will ensure compliance with all terms and conditions of this Agreement by each of Your Users and each person or entity (i) who has access to the Tagglo Service, Documentation or Stibo’s Confidential Information disclosed, provided or made available to you hereunder, or (ii) who discloses, provides or makes available to Stibo any Feedback or other Your Content. You agree that any acts or omissions of any of Your Users or other person or entity described above that would constitute a breach of this Agreement or failure of a condition if committed by you will be deemed a breach of this Agreement or failure of such condition by you, and you will be liable for all such acts or omissions as if such acts or omissions were your own acts or omissions.
13.4. Force Majeure. You agree that Stibo will have no liability for any issues caused by causes beyond Stibo’s control, including acts or omissions of third parties that are outside Stibo’s control.
13.5. Governing Law; Venue; Jurisdiction. This Agreement will be deemed to have been made and entered into in Kennesaw, Georgia, U.S.A. Subject to the agreement to arbitrate Disputes, this Agreement and any claim, action, suit, proceeding or dispute arising out of, in connection with or relating to this Agreement will in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Georgia, excepting any of such laws that might apply the laws of another jurisdiction. Judicial venue for any claim, action, suit, proceeding or dispute arising out of or in connection with this Agreement will lie exclusively in the courts located in Fulton County, Georgia or the United States District Court for the Northern District of Georgia, Atlanta Division. Each Party hereby irrevocably submits to the personal jurisdiction and exclusive venue of the aforementioned courts, and waives lack of personal jurisdiction, improper venue or forum non conveniens as a defense to any such action.
13.6. Waiver; Amendment. No waiver of any right or remedy by Stibo will be valid unless in writing, and waiver of a right or remedy on one occasion by Stibo will not be deemed a waiver of such right or remedy on any other occasion. Except as otherwise provided in this Agreement, no changes to this Agreement will be binding on Stibo unless in writing signed in ink by Stibo.
13.7. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties pertaining to its subject matter, superseding all prior or contemporaneous discussions, agreements, promises or understandings between the Parties pertaining to its subject matter. For purposes of clarity, except to the extent provided in the immediately preceding sentence, this Agreement does not supersede or affect in any way any other written agreements between the Parties, including without limitation any agreements between the Parties for licensing of Stibo’s products or provision of services by Stibo. Any additional or varying terms contained in your preprinted forms, correspondence or other documents transmitted to Stibo, will be of no effect.
13.8. Assignment; No Third Party Beneficiaries. You may not assign this Agreement or any rights or obligations hereunder, in whole or in part, without the prior written consent of Stibo, and any attempt to do so will be void. This Agreement will be binding upon, and inure to the benefit of, the Parties, their legal representatives, successors, and permitted assigns as permitted by this Agreement. Nothing in this Agreement will be construed to create any rights enforceable by any person or entity who is not a Party or an Indemnitee.
13.9. Notices. Stibo may deliver any notice required or permitted hereunder (i) via the Tagglo Service or (ii) via electronic mail to your contact information on record with the Tagglo Service, which notice will be deemed received by you when posted or transmitted by Stibo. Where Stibo permits you to give notice to Stibo via a feature or functionality of the Tagglo Service (e.g., account changes, notice of Tagglo Service non-renewal), you may give such notice through such feature or functionality and it will be deemed effective upon actual receipt by Stibo, but only to the extent the notice is of a type for which the feature or functionality is intended to convey.
Otherwise, unless a different notice address is specified (such as in Stibo’s Copyright Policy), all notices to Stibo (including notices of Disputes or to initiate arbitration) must be delivered in writing in hard-copy (paper) to Stibo at its current address by (i) personal delivery by hand, (ii) registered mail, (iii) certified mail, return-receipt requested, or (iv) reputable national or international mail courier with proof of delivery. Stibo’s current address is:
Stibo Systems, Inc.
3550 George Busbee Parkway, Suite 350
Kennesaw, Georgia 30144
Attn: President – Tagglo Notice
Stibo may change this notice address by updating this Agreement or by listing a new address for notices on the Tagglo Service. You are responsible for making sure you are sending notices to Stibo’s most-current address and for confirming that they have been received by Stibo. Notices given to Stibo’s address will be deemed effective upon the first normal business day (non-weekend/non-holiday) following actual receipt by Stibo at such address.
13.10. Subcontractors. The Parties acknowledge that Stibo may delegate performance of some or all of its obligations under this Agreement to subcontractors; provided, however, that Stibo will remain fully responsible for the performance of such obligations.
13.11. Severability. If any provision hereof is declared invalid by an arbitrator or a court of competent jurisdiction, courts or arbitrators are authorized to modify and reform such provision to make it enforceable and if such reformation is not possible, such provision will be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will be valid and enforceable to the fullest extent permitted by applicable law.
13.12. Headings; Language. Section titles and headings in this Agreement are provided for the convenience of the Parties only and will not affect its construction or interpretation. The official language of this Agreement is English. In the event this Agreement is translated, the English version will control and translations will not be construed as official or original versions of the Agreement. All contract interpretations, notices and dispute resolutions will be in English.
13.13. Independent Contractor. The Parties acknowledge that its relationship with the other will be that of an independent contractor, and nothing contained in this Agreement will be construed as establishing any agency, employer/employee relationship, partnership or joint venture between Stibo and you.