(Updated March 30, 2022)
BY EXECUTING AN ORDER FORM, PUBLISHER EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT AS OF THE EFFECTIVE DATE SET FORTH IN SUCH ORDER FORM (“EFFECTIVE DATE”). IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY AND “PUBLISHER” WILL REFER TO THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MUST NOT EXECUTE THE ORDER FORM AND MAY NOT USE THE RELISH TECHNOLOGY PLATFORM OR THE SERVICE.
- DEFINITIONS. All terms will have the meanings provided in Section 11, unless otherwise defined in the Agreement.
- TERM. This Agreement will have the term set forth in the Order Form (the “Term”). Fexy may terminate this Agreement upon written notice if Fexy reasonably believes that Publisher or one of its affiliates may cause Fexy Reputational Harm. “Reputational Harm” means harm to Fexy’s reputation caused by Publisher or its affiliate hosting or promoting content that is illegal (or promotes illegal activities), obscene, discriminatory, or is otherwise of a nature that an Advertiser is likely to object to such content.
- SMART RECIPE TRANSLATION. Within 10 business days of the Effective Date, Fexy will provide Publisher with tools to implement the Relish Technology Platform onto the Publisher’s Property, in most cases the Relish Plugin. Publisher agrees to incorporate the Relish Technology Platform onto the Property within 10 business days following receipt and to follow all onboarding instructions provided by Fexy.
- TECHNOLOGY LICENSE. Subject to Publisher’s compliance with this Agreement, during the Term, Fexy will provide Publisher with a limited, global, non-exclusive, non-transferable (except as permitted in Section 9) license, without right of sublicense, to internally access Fexy’s Relish Technology Platform, solely on the Property.
- NON SOLICITATION. During the Term, and for a period of twelve (12) months following, the Publisher’s employees, officers, directors or representatives may not either directly or indirectly: (i) solicit for employment any employees, consultants, independent contractors or other service providers of Fexy (together with its wholly-owned subsidiaries, the “Fexy Group”); or (ii) solicit, canvass, induce or encourage any employee or consultant of the Fexy Group to leave the employment or consulting of or cease providing services to the Fexy Group.
- CONFIDENTIALITY. Pursuant to this Agreement, either party or its subsidiaries (“Discloser”) may disclose to the other party (“Recipient”) certain information that is marked confidential or proprietary at the time of disclosure, or that, under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary (“Confidential Information”). Confidential Information does not include information that: (i) is or becomes generally known or publicly available through no fault of Recipient; (ii) was known, without restriction, by Recipient before receiving it from Discloser; (iii) is received from a third party who is allowed to provide it without restriction as to use or disclosure; or (iv) is independently developed without reliance on any Confidential Information of Discloser. Recipient will: (a) take reasonable measures to protect the Discloser’s Confidential Information, using at least those measures it takes to protect its own confidential information; (b) not use any Confidential Information except pursuant to this Agreement; (c) not disclose Confidential Information to any third parties except to its group companies, employees, agents, and third party contractors on a need-to-know basis, and as long as such parties are bound by restrictions at least as protective of Discloser’s Confidential Information as this Agreement; and (d) not export or disclose any Confidential Information in violation of applicable export control restrictions. Recipient may disclose Discloser’s Confidential Information to the extent required by any law or regulation if it gives reasonable advance notice (to the extent permitted under applicable law) so that Discloser can seek to prevent or limit such disclosure. Each party agrees that the terms and conditions of this Agreement will not be disclosed to any third party; provided, however, that each party may disclose the terms and conditions of this Agreement: (1) as required by any court or other governmental body having competent jurisdiction; (2) as otherwise required by law; (3) to legal counsel of the parties; (4) in confidence, to accountants, banks, and potential and actual funding sources and their advisors; (5) in connection with the enforcement of this Agreement or rights under this Agreement; (6) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction; or (7) as mutually agreed upon by the parties.
- COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE PARTIES.
- Indemnity. Each party agrees to indemnify, defend and hold harmless the other party, its affiliates and their respective officers, directors and employees from and against any and all third party claims, causes of action, demands, costs, liabilities, expenses and/or damages (including reasonable attorneys’ fees and expenses) arising out of or in connection with any breach of this Agreement by such party.
- Authority. Each of Publisher and Fexy warrants that: (i) it has all necessary rights and authority to enter into the Agreement on their own behalf; and (ii) it will comply with all applicable laws, rules and regulations relevant to the performance of its obligations under the Agreement. Publisher warrants that its entrance into the Agreement does not conflict with the provisions of any of Publisher’s existing agreements and it owns or has the rights to all content, products, and services on the Properties to perform its obligations herein.
- Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, FEXY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION THE RELISH TECHNOLOGY PLATFORM AND THE SERVICE, AND FEXY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. FEXY DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE RELISH TECHNOLOGY PLATFORM OR THE SERVICE. FEXY DOES NOT WARRANT THAT THE RELISH TECHNOLOGY PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE RELISH TECHNOLOGY PLATFORM OR THE SERVICE WILL BE SECURE OR UNINTERRUPTED.
- LIMITATIONS OF LIABILITY.
- Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, FEXY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO PUBLISHER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF FEXY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
- Cap on Liability. UNDER NO CIRCUMSTANCES WILL FEXY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY PUBLISHER TO FEXY DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
- Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY FEXY TO PUBLISHER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN SECTIONS 7 AND 8 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
- ASSIGNMENT. Neither party may assign its rights or obligations under this Agreement without the prior written permission of the other, which consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, no prior permission is required in the event that a party participates in a merger or consolidation or is the subject of a purchase of all, or substantially all, of its assets or capital stock or if Fexy assigns this Agreement to a Fexy affiliate; provided a successor to Publisher must agree in writing to assume and fulfill all of Publisher’s obligations under this Agreement. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties hereto and their successors and assigns.
- Marketing / Public Relations. Neither party will, without written consent from the other party (not to be unreasonably withheld, conditioned, or delayed) announce the business relationship established by this Agreement in a corporate press release. Fexy may, at its sole discretion, refer to the relationship on its websites, including but not limited to Relish.com, and in its marketing materials, using the Publisher’s name and logo.
- Relish.com. Publisher agrees that Fexy may publish recipe titles, ingredients, Publisher’s photographs, and publisher’s logo on Relish.com and in Relish+ meal plans, which shall include links to the original location of the recipe with the goal of increasing the audience reach of Publisher. For the avoidance of doubt, Fexy shall not republish the recipe instructions.
- Relationship of Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties or to give either party the power to bind the other or to incur obligations on the other’s behalf. The Agreement is intended for the sole and exclusive benefit of the parties, and is not intended to benefit any third party.
- Survivals. Upon expiration or termination of this Agreement, the following Sections will survive: 6 to 10.
- Force Majeure. Neither party will be liable by reason of any failure or delay in the performance of its obligations under this Agreement for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet Service Providers, riots, insurrection, war (or similar), fires, floods, earthquakes, explosions and other acts of God.
- Governing Law. The Agreement will be governed by, and interpreted and enforced in accordance with, the laws of the State of Delaware, without regard to conflicts of law principles that would require the application of any other law.
- Subcontractors. Fexy may utilize an affiliate, subcontractor or other third party to perform its duties under this Agreement so long as Fexy remains responsible for all of its obligations under this Agreement.
- Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
- Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in this Agreement will not be a waiver of such party’s right to demand strict compliance in the future.
- Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Relish Technology Platform or the Service under this Agreement is found to be illegal, unenforceable, or invalid, Publisher’s right to use the Relish Technology Platform and the Service will immediately terminate.
- Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.
- Entire Agreement. This Agreement, including all exhibits and any applicable Order Form, is the final and complete expression of the agreement between these parties regarding Publisher’s use of the Relish Technology Platform or the Service. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the Relish Technology Platform or the Service that Fexy may provide. No employee, agent, or other representative of Fexy has any authority to bind Fexy with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Fexy will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Publisher in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Fexy specifically agrees to such provision in writing and signed by an authorized agent of Fexy.
- “Advertiser” means any party, including any affiliates of that party, engaged in creating, placing, selling, buying, brokering or utilizing Advertisements, including any direct advertiser, advertising agency, advertising network, exchange or marketing representative.
- “Relish Technology Platform” means, without limitation, the set of tools and software licensed by Fexy to Publisher that will enable Publisher to include software code on Publisher’s site for the purpose of allowing users to add recipes to a shopping list and or save recipes.
- “Property” or “Properties” means: (i) any URL owned and operated by Publisher, including all webpages appearing on the URL and including subdomains and mobile versions of the same; (ii) the social channels operated by Publisher; (iii) email distribution lists operated by Publisher; and (iv) any mobile applications owned (or managed, for which Publisher has the right to insert advertising) by Publisher that deliver Advertisements to end-users on a wireless or mobile device, in each case (i), (ii), (iii), or (iv), that are listed in the Order Form.