Commerce Collaboration Agreement
(updated March 25th, 2020)
THIS COMMERCE COLLABORATION AGREEMENT (“AGREEMENT”) IS BY AND BETWEEN TENEOLOGY, INC. DBA FEXY MEDIA (“FEXY”) AND THE INDIVIDUAL OR LEGAL ENTITY WHO HAS EXECUTED AN ORDER FORM, QUOTATION, OR OTHER ORDERING OR PURCHASING DOCUMENT REFERENCING THIS AGREEMENT (“ORDER FORM”) OR IS USING THE COMMERCE TECHNOLOGY PLATFORM OR SERVICE MADE AVAILABLE BY FEXY UNDER THIS AGREEMENT (“PUBLISHER”) AND GOVERNS ALL USE BY PUBLISHER OF THE COMMERCE TECHNOLOGY PLATFORM.
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 COMMERCE TECHNOLOGY PLATFORM OR THE SERVICE.
1. DEFINITIONS. All terms will have the meanings provided in Section 18, unless otherwise defined in the Agreement.
2. TERM. This Agreement will have the term set forth in the Order Form (the “Term”). If any Offered Campaign has commenced that would require Services to be performed after the last date of the then-current Term, then the Term will automatically be extended until the final date upon which all such obligations have been fulfilled, following which it will terminate without further action by either party. Upon a material breach, and after the breaching party has been given 30 days’ written notice to cure such breach, a party may terminate this Agreement for cause. In the event of such termination the non-breaching party will be responsible for fulfilling all obligations accrued by it up through the date of termination. 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.
3. SMART RECIPE TRANSLATION. Within 10 business days of the Effective Date, Fexy will provide Publisher with tools to implement the Commerce Technology Platform onto the Publisher’s Property. Publisher agrees to incorporate the Commerce Technology Platform onto the Property within 10 business days following receipt, which will begin mapping and normalizing Publisher’s recipes to a standardized format that is optimized for integration with grocery retailers.
4. SALES PROCESS. Fexy may, from time-to-time, at its sole discretion, notify Publisher of a potential sale of Path to Purchase services and offer Publisher the option to participate in a campaign (“Offered Campaign”). Should Publisher choose to participate, the parties agree to work together, in good faith, to provide a detailed media plan to each interested party with respect to each Offered Campaign Publisher has elected to participate in. Publisher will work with Fexy on each Offered Campaign on an exclusive basis, and will not work with any third party to pitch for any Offered Campaign. In no case may Publisher directly or indirectly commence delivering any services or advertisements related to an Offered Campaign without mutual written approval describing the timing, scope, advertising units and economic terms of such campaign (“Insertion Order”).
5. AD REPRESENTATION. During the Term, Publisher grants Fexy an exclusive right to represent the Property to Advertisers, negotiate the sale of Advertisements on the Property with Advertisers and sell advertising inventory on the Property to any Advertiser, in all cases solely with respect to a Path to Purchase product. Accordingly, and without limiting the previous sentence, Publisher will not directly or indirectly make available on the Property any Advertisement for a Path to Purchase campaign except pursuant to this Agreement.
6. 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 16) license, without right of sublicense, to internally access Fexy’s Commerce Technology Platform, solely on the Property. Publisher agrees to implement on the Property “wrappers” provided by Fexy that will be necessary to execute Path to Purchase campaigns. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Publisher will not, and will not permit or authorize third parties to: (i) rent, lease, or otherwise permit third parties to use the Commerce Technology Platform, or accompanying documentation; (ii) use the Commerce Technology Platform to provide services to third parties (e.g., as a service bureau); nor (iii) circumvent or disable any security or other technological features or measures of the Commerce Technology Platform. During the Term, and for six months thereafter, Publisher will exclusively obtain Path to Purchase products or services from Fexy, and not from any third party.
7. NON CIRCUMVENTION. In order for Fexy to receive the full benefit of sales of Path to Purchase campaigns on the Property made by Fexy under this Agreement, during the Term, and for a period of twelve (12) months following, the Publisher may not directly or indirectly approach any party to which Fexy has sold, or received an Insertion Order for, Path to Purchase campaigns on the Property.
8. 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.
9. PATH TO PURCHASE CAMPAIGNS. The terms of each campaign will be jointly determined, in good faith, by the parties in writing (as set forth in Section 4), on a campaign-by-campaign basis. Subject to the foregoing sentence, compensation, will be paid to Publisher, in US Dollars, excluding all applicable sales, use and other taxes, within seventy-five (75) business days of the last day of the month in which the services generating such appropriate revenue were delivered; provided, Fexy’s obligation to provide such compensation to Publisher is conditioned on Fexy’s receipt of payment from the applicable Advertiser. Each party will be responsible for and will pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to the Revenue.
10. RETAILER REVENUE. Fexy may, from time to time, enter into an agreement with a Retailer to pay Fexy a portion of such Retailer’s revenue attributable to Purchasing Users (“Retailer Revenue”). To calculate the portion of each pool of Retailer Revenue to be remitted to Publisher in a given calendar month (“Publisher Retailer Revenue”), Fexy will: (i) divide the Retailer Revenue for that month by the total number of Purchasing Users for the Retailer in that month; (ii) multiply the resulting amount by the number of Purchasing Users for that Retailer that originated via a Property in that month; and (iii) multiply the final amount by the designated percentage set forth in the Order Form (“Publisher Revenue Percentage”). If, in a given calendar month, the Publisher Retailer Revenue is equal to or exceeds USD $100, Fexy will remit to Publisher the Publisher Retailer Revenue, calculated based on the Retailer Revenue that Fexy received during that calendar month, 30 days after the end of each calendar month during the Term. If, in a given calendar month, (a) the Publisher Retailer Revenue is less than USD $100, or (b) the Order Form specifies a 0% Publisher Revenue Percentage, does not contain a Publisher Revenue Percentage, or has expired, then, in either case (a) or (b), Publisher will not be eligible for, and Fexy will have no obligation to remit, Publisher Retailer Revenue.
11. REPORTING. The parties agree to implement third-party advertising measurement tools, each party to bear its respective costs, upon Advertiser request. In the event Fexy implements such tool on behalf of Publisher, Fexy will have a right of offset, against fees due to Publisher under Sections 9 and 10 of this Agreement. All other tracking will be determined by each party’s standard advertising platform. Upon request, and for campaigns in which Publisher has delivered a significant portion of the overall services delivered, Fexy will share with Publisher copies of campaign reports prepared for Advertisers.
12. FRAUDULENT ACTIVITY. Notwithstanding any other provision of this Agreement, Fexy will not be liable to Publisher for any of Publisher’s Revenue arising out of activity that is deceptive or fraudulent in nature (“Fraudulent Activity“) and Publisher will not directly engage in any Fraudulent Activity. Examples of Fraudulent Activity may include, without limitation: (i) activities that are intended to inflate clicks or Advertisement impressions; (ii) deceptive practices such as purchasing ‘suspicious’ or non-human (computer generated/BOTs) traffic to web pages on the Properties with the intent of inflating page views and Advertisement impressions; (iii) the placement of Advertisements below-the-fold and not within the user’s viewable browser window, (iv) the provision of false lead information or multiple leads from a single individual, (v) the display of any Advertisements in pop-ups, pop-unders, exit windows, expending buttons, animation or other similar methods, (vi) the serving of Advertisements or driving of traffic to such Advertisement, using any downloadable applications or (vii) the placement of Advertisements on unapproved websites, in emails or any other location which has not been approved by Fexy. Publisher will take all steps to prevent any Fraudulent Activity. Fexy will have sole discretion, and will exercise good faith in determining whether Fraudulent Activity has occurred. Publisher further agrees to provide full cooperation to Fexy in any investigation of possible Fraudulent Activity, including reasonable access to Publisher’s access logs and other customer and affiliate information related to such investigation.
13. 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.
14. COVENANTS, REPRESENTATIONS AND WARRANTIES OF THE PARTIES.
A. 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.
B. 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.
C. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 14, 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 Commerce 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 Commerce Technology Platform OR THE SERVICE. FEXY DOES NOT WARRANT THAT THE Commerce Technology Platform is ERROR-FREE OR THAT OPERATION OF THE Commerce Technology Platform OR THE SERVICE WILL BE SECURE OR UNINTERRUPTED.
15. LIMITATIONS OF LIABILITY.
A. 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.
B. 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).
C. 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 14 AND 15 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
16. 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.
A. 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.
B. Relish.com. Publisher agrees that Fexy may publish recipe titles, ingredients and Publisher’s photographs on Relish.com, 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.
C. 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.
D. Survivals. Upon expiration or termination of this Agreement, the following Sections will survive: 7, 8, 9, and 12 to 17.
E. 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.
F. 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.
G. 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.
H. 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.
I. 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.
J. 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 Commerce Technology Platform or the Service under this Agreement is found to be illegal, unenforceable, or invalid, Publisher’s right to use the Commerce Technology Platform and the Service will immediately terminate.
K. 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.
L. 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 Commerce 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 Commerce 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.
“Advertisements” means any advertising provided by an Advertiser in connection with the Service or displayed on the Property, including, but not limited to, all text, in-text, graphical, audio, video, native integrations, sponsored posts, social posts, emails, or other promotional activity that appear on or in connection with the Property and that promotes the availability of any third-party products, services or merchandise.
“Commerce 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 executing Path to Purchase and similar commerce opportunities.
“Revenue” means all revenue from Advertisements sold by or through Fexy for the Publisher.
“Path to Purchase” means any campaign with an Advertiser that includes a technology integration with one or more retailers and elements used to promote such integration with the intent of increasing sales or brand awareness for Advertiser products and services.
“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.
“Purchasing Users” means individual end users that purchase products from a Retailer after being directed to do so via the Commerce Technology Platform.
“Revenue” means all revenue from Advertisements sold by or through Fexy for the Publisher.
“Retailer” means a party engaged in selling groceries or other goods using online tools or an online marketplace.
“RFP” means a request from an advertiser, brand, or media agency for a publisher to submit a bid to win business against specific buying criteria “Service” means the selling of Advertisements on the Property.