FeedSyndicate End User Content License Agreement

Updated: November 27, 2020

This agreement governs the use by you and your authorized employees, agents, affiliates and/or contractors (collectively, “you” or “your”) of the FeedSyndicate Content Services (this “EUCLA”).

By entering into a subscription with FeedSyndicate setting forth pricing and other terms (your “Subscription”), this EUCLA is incorporated therein by reference.

This EUCLA, and your Subscription, shall also be collectively referred to as this “Agreement.” Any references to your Subscription shall only apply to you so long as you have an Subscription with FeedSyndicate.

“FeedSyndicate Content Services” or the “Services” means provision of the FeedSyndicate Login Credentials to access and use the FeedSyndicate Content-as-a-Service, the build of a Custom CMS, and/or any other services set forth on your Subscription.

“Login Credentials” means the unique username and password provided by FeedSyndicate to you.

“FeedSyndicate Content-as-a-Service” means FeedSyndicate’s end-to-end content software that allows you to search, provision, and display content provided by FeedSyndicate, or licensed from FeedSyndicate, which FeedSyndicate creates, or receives from third party licensors (the “ Content Providers”) and includes only such content the Content Providers are able to sublicense, including images, video, and metadata, the Assets, as defined below, but excluding the FeedSyndicate Content (“FeedSyndicate Content”) and/or content owned or licensed separately by you (“Customer Content”) on a digital property(ies) of your choosing (the “Approved Client Property(ies)”).

In the event of a conflict between the terms of your Subscription and this EUCLA, the terms of your Subscription shall control.

1. LICENSED SERVICES

1.1 FeedSyndicate hereby grants to you and your named affiliates, on the terms and conditions set forth herein, a limited, non-exclusive, non-assignable, non-sublicensable right and revocable license to use the FeedSyndicate Login Credentials in order to access and use the FeedSyndicate Content Services and to display the FeedSyndicate Content on the Approved Client Property(ies) for Editorial Purposes during the Term (as defined in Section 10 below) of your Agreement.

“Editorial Purposes” shall mean purposes relating to events that are newsworthy or of public interest and expressly excluding any advertising, or advertorial purposes. All FeedSyndicate Content licensed under the terms of this Agreement must be published via the FeedSyndicate Content-as-a-Service. All rights not expressly granted to you in this Agreement are reserved by FeedSyndicate.

1.2 You agree that:

1.3 FeedSyndicate may provide a tracker (“Analytics Script”), which you must implement on the requisite Approved Client Property(ies). Each article and image provided to you as part of the FeedSyndicate Content and FeedSyndicate Content may have an embedded tracking pixel (the “Analytics Pixel”), which you must not remove. FeedSyndicate will use the Analytics Script, the Analytics Pixel, and cookies to track anonymized data on usage of FeedSyndicate Content and FeedSyndicate Content, measure interest in certain topics, and capture information on page views, unique visitors, browser information, IP address, referrals from paid search, and engagement metrics, such as time on site.

Analytics data shall be tracked only during the term and for the limited purposes of this Agreement, and shall not be distributed to any third parties.

1.4 Separately, FeedSyndicate will also collect personally identifiable information (“PII”), including name, demographical information and social actions (i.e. likes, shares, and Tweets), from third party data providers in order to power a feature that allows you to view and analyze who is engaging with FeedSyndicate content.

1.5 Finally, FeedSyndicate may compile statistical information (i.e. page views and uniques) with respect to the FeedSyndicate Content, and shall make such information available to your particular Content Providers so that they may track their content’s performance on an aggregated basis (the “Licensor Performance Data”); provided, however, such Licensor Performance Data shall not be associated with you. FeedSyndicate retains all intellectual property rights in the Licensor Performance Data.

Please see the FeedSyndicate Privacy Policy for more details on FeedSyndicate’s collection, use, disclosure and other processing of end user data. FeedSyndicate may update its Privacy Policy from time to time, in its sole discretion, and post an updated version. You are responsible for ensuring that your relevant privacy notices are consistent with the FeedSyndicate Privacy Policy.

1.6 You agree that, to the extent FeedSyndicate can no longer provide access to a portion of the FeedSyndicate Content as defined in your Subscription, FeedSyndicate may replace said FeedSyndicate Content with substantially similar FeedSyndicate Content within ninety (90) days.

2. INTELLECTUAL PROPERTY

2.1 You acknowledge and agree that (i) as between FeedSyndicate and you, FeedSyndicate owns all right, title and interest in the FeedSyndicate Content Services (excluding the FeedSyndicate Content, which is owned or licensed by the Content Providers, and the FeedSyndicate Content, which is owned by you), and FeedSyndicate’s name and trademarks, whether now existing or which may subsequently come into existence (collectively, the “FeedSyndicate Property”), (ii) nothing in this Agreement shall confer in you any right of ownership in the FeedSyndicate Property and/or the FeedSyndicate Content, and (iii) any goodwill generated through your use of the FeedSyndicate name and trademarks will inure solely to FeedSyndicate. All suggestions, feedback, enhancement requests, recommendations or other input provided by you or any other party relating to the Services shall be owned by FeedSyndicate and you hereby do and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership.

2.2 All content owned or licensed separately by you (“Customer Content”) posted on the Approved Client Property(ies) must comply with all laws, including, but not limited to, U.S. copyright law. You hereby grant FeedSyndicate a limited, non-exclusive, non-assignable, non-sublicensable right and license to use and store the Customer Content within the FeedSyndicate Content-as-a-Service during the Term (as defined in Section 10 below) of your Agreement solely to enable your use of the Services. FeedSyndicate claims no intellectual property rights in the Customer Content. FeedSyndicate does not pre-screen Customer Content, but reserves the right in its sole discretion to refuse to display or remove any Customer Content that you post.

2.3 Unless otherwise agreed by you in writing with a NewsRoom partner, you shall own any products created for you through the “NewsRoom,” defined as FeedSyndicate’s freelance network which provides creative product to FeedSyndicate’s customers including, but not limited to, writing, editing, custom video, and photography in furtherance of their content marketing efforts (“FeedSyndicate Content”). Such FeedSyndicate Content shall be deemed to be works made for hire under U.S. copyright law. To the extent FeedSyndicate Content may not be considered a work made for hire and consists of any materials protectable, in whole or in part, under intellectual property laws, the NewsRoom partner(s) shall assign exclusively to you all rights, title and interests in such materials, including copyright, patent, trademark and other intellectual property rights. The NewsRoom partner(s) shall execute any papers and perform such other proper acts, as you may deem necessary, to secure for you or your designee the rights herein assigned. You hereby agree to provide the proper attribution and byline on any FeedSyndicate Content as instructed by FeedSyndicate. For the avoidance of doubt, neither FeedSyndicate nor any NewsRoom partner provides any property or model releases for the FeedSyndicate Content, and such releases are your responsibility. We advise you to do a full legal review of the FeedSyndicate Content prior to publication as if it were written by one of your employees or staff.

3. NOTICE, CREDIT AND BRANDING

3.1 You agree to publish any copyright notice, footnote or disclaimer included with the FeedSyndicate Content, or required by the Content Provider.

3.2 You shall maintain any link(s) included in the original article if the Content Provider has included such link(s).

3.3 You will attribute the original Content Provider as the source and will not replace or alter any attribution, and/or byline provided by the Content Provider.

3.4 You will only use logos of the original Content Provider by seeking written permission from FeedSyndicate on a case-by-case basis.

3.5 You agree to implement any canonical links from Content Providers.

3.6 You hereby permit FeedSyndicate to use your trademarks in the marketing and promotion of the FeedSyndicate Content Services.

 

4. CONFIDENTIALITY

4.1 The parties acknowledge that each party may have access to confidential and proprietary information, in any form, whether written or oral, of a business, financial or technical nature, which is (i) marked or otherwise indicated as being, or (ii) is, or ought reasonably to be, known to be confidential (“Confidential Information”). Each receiving party agrees to preserve and protect the confidentiality of the Confidential Information of the disclosing party, and the receiving party will use Confidential Information of the disclosing party solely in connection with the performance of this Agreement. The receiving party agrees not to disclose the Confidential Information of the disclosing party without the prior written consent of the other party; provided, however, that the receiving party may disclose to any other party information which: (i) is or becomes publicly known through no fault of the receiving party; (ii) is discovered or developed independently of any involvement with the disclosing party; (iii) is learned through legitimate means other than from the disclosing party; or (iv) was known to the recipient before receipt from the disclosing party.

4.2 Client shall not circumvent FeedSyndicate’s business in any way, including, but not limited to, soliciting direct relationships with FeedSyndicate’s partners, content creators, and/or licensed content publishers.

 

5. FEES

5.1 Fees shall be billed in accordance with the terms set forth in your Subscription. All Fees exclude travel & expenses incurred by FeedSyndicate in the performance of the Services. 

Unless otherwise stated in your Subscription, all fees shall be due in advance. Any past due fees are subject to a late charge of five percent (5%) of the balance due per month. In all cases, the amounts due under this Agreement shall be paid by Client to FeedSyndicate in full without any withholding or right of set-off or deduction.

5.2 The parties shall be responsible for their own respective taxes including, but not limited to, their own digital service taxes, income taxes and/or VAT.

5.3 The recurring fees in each Subscription hereunder shall be subject to an annual price increase on each term renewal of such Subscription, not to exceed ten percent (10%), upon at least one (1) month notice to the Client.

5.4 All fees are non-refundable, except as expressly provided herein.

5.5 All pricing and discounts are valid for the initial term of your subscription only, unless otherwise noted.

5.6 FeedSyndicate also reserves the right to charge you for all costs of collection, including but not limited to collection agency and attorney’s fees and court costs.

 

6. MODIFICATIONS

6.1 FeedSyndicate reserves the right at any time to make necessary modifications, changes, and/or improvements to the Services with or without notice. Unless FeedSyndicate provides otherwise, the then-current EUCLA shall also apply to your use of any modified or new version of the Services, or your use of any updates, upgrades, changes, enhancements or new features added to the Services that may be made available by FeedSyndicate from time to time.

6.2 This EUCLA may be modified from time to time, and shall be indicated by the “Date Updated” above (the “Modifications”). Continued use of the Services past the Modifications constitutes acceptance of the Modifications.

6.3 If you do not agree with any such Modifications, you may provide prompt notice in writing to FeedSyndicate. Should the parties be unable to reach a mutually acceptable compromise, you may terminate this Agreement on the effective date of the Modifications, and any unused fees shall be refunded to you.

 

7. WARRANTIES

7.1 Each party represents and warrants to the other party that it has the power and authority to enter into the Agreement. FeedSyndicate warrants that it will provide the Services in a manner consistent with generally accepted industry standards.

7.2 NOTWITHSTANDING THE FOREGOING, FEEDSYNDICATE DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR ARE RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1, THE SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND. FEEDSYNDICATE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND/OR TITLE. YOU ACKNOWLEDGE THAT FEEDSYNDICATE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND ANY THIRD PARTY PLATFORMS OR SYSTEMS, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH SYSTEMS. FEEDSYNDICATE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

 

8. LIMITATION OF LIABILITY

8.1 FEEDSYNDICATE SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING OUT OF ANY MODIFICATIONS MADE TO THE RF IMAGES OR THE CONTEXT IN WHICH YOU USE THE RF IMAGES, AND YOU SHALL INDEMNIFY FEEDSYNDICATE FOR ANY LOSSES RESULTING FROM THE FOREGOING. IN ADDITION, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE), OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFITS, LOSS OF SALES OR BUSINESS, LOSS OF CONTRACTS OR CUSTOMERS, OR LOSS OF GOODWILL. EXCEPT FOR LIABILITY (A) UNDER SECTION 9 BELOW AND/OR (B) DUE TO DEATH OR PERSONAL INJURY ARISING FROM EITHER PARTY’S NEGLIGENCE, NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES HEREUNDER SHALL EXCEED THE LESSER OF (i) THE TOTAL AMOUNT OF FEES DUE AND PAYABLE DURING THE TERM OF YOUR AGREEMENT OR (ii) $500,000.

 

9. INDEMNITY

9.1 You agree to indemnify and hold harmless FeedSyndicate against any loss, damages or cost, including reasonable attorney’s fees, incurred in connection with any claim or action brought against FeedSyndicate to the extent that such claim or action is based on or arises from (i) your use of the Services outside the scope of this Agreement; (ii) any breach or alleged breach by you of your representations, warranties, or covenants provided herein; (iii) the Customer Content; (iv) the FeedSyndicate Content; (v) Licensed images that have been modified by you; and/or (vi) any other FeedSyndicate content that have been modified by you, to the extent that the claim arises from the modification itself.

9.2 FeedSyndicate agrees, at its own expense, to defend, or at its option to settle, any claim or action brought against you to the extent that such claim or action is based on or arises from (i) any claim that use of the FeedSyndicate Content Services and/or the FeedSyndicate Content as contemplated under this Agreement infringes any third party’s intellectual property rights; (ii) any claim that the FeedSyndicate Content as delivered to you infringes any third party’s intellectual property rights, only to the extent that such infringing material was not included by you or under your direction and/or (iii) FeedSyndicate’s breach or alleged breach by FeedSyndicate of its representations, warranties, or covenants provided herein, and to indemnify you against any and all damages and costs, including reasonable legal fees, that a court awards against you under any such claim or action.

9.3 FeedSyndicate shall have no liability respecting any claim of infringement or breach as aforesaid to the extent such claim is based upon the combination, operation or use of the Services and/or FeedSyndicate Content (i) with other equipment or software not supplied by FeedSyndicate and/or the Customer Content, or (ii) in a manner not consistent with FeedSyndicate’s instructions and/or the terms of this Agreement. If FeedSyndicate reasonably believes that your use of any portion of the Services is likely to be enjoined for the aforementioned reasons, then FeedSyndicate may, at its expense: (i) procure for you the right to continue using the Services; (ii) replace the same with other services or other material of equivalent functions that is not subject to a legal action; (iii) modify the applicable Services so that there is no longer any infringement or breach; and/or (iv) terminate the Services and refund any unused fees paid in advance.

9.4 Each party seeking indemnification hereunder (the “Indemnified Party”) will provide the party providing indemnification hereunder (the “Indemnifying Party”) with (i) prompt written notice of any claim for indemnification under this Agreement (provided, however, that any failure to provide such notice shall not relieve the Indemnifying Party of its indemnification obligations hereunder unless the Indemnifying Party’s ability to defend such claim is actually prejudiced by such failure), and (ii) proper and full information and reasonable assistance to defend and/or settle any such claim. The Indemnified Party shall have the right to participate fully, at its own expense, in the defense of an indemnified claim. Any compromise or settlement by the Indemnifying Party of an indemnified claim shall require the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld or delayed. An Indemnifying Party, in settling an indemnified claim, shall not make any admission of wrongdoing on behalf of any Indemnified Party or impose any obligation on any Indemnified Party without the Indemnified Party’s prior written approval.

 

10. TERM AND TERMINATION

10.1 This Agreement becomes effective on the earlier of (i) the Effective Date in your Subscription or (ii) the date you use the FeedSyndicate Content Services (the “Effective Date”), and shall remain in effect until the later of (i) the Expiration Date in your Subscription or (ii) the date you cease using the Services (the “Expiration Date”) (the duration of which is the “Term”). All Subscriptions are bound to minimum 12-month terms with no termination for convenience provisions. Your Subscription shall automatically renew for successive 12-month periods unless a party gives sixty (60) days’ written notice prior to the Expiration Date, or the expiration of any renewal term, as applicable. Any notice of non-renewal or early termination, if applicable to your Subscription, must be sent from the account holder on record via e-mail to sales@feedsyndicate.com. No other form of notice of non-renewal or early termination shall be acceptable.

10.2 Either party may terminate your Subscription (i) upon the other party’s material breach without cure within thirty (30) days of written request; (ii) if the other party files for bankruptcy and/or enters into a composition with its creditors; (iii) if an order is made for the winding up of the other; or (iv) if the other has a receiver, manager, or administrator appointed in respect of it.

10.3 FeedSyndicate may terminate, suspend or shut down your Services if (i) you are past due payment; or (ii) you violate Sections 1.1, 1.2, 1.5 or 4 of this EUCLA. FeedSyndicate also reserves the right to charge you for all costs of collection, including but not limited to collection agency and attorney’s fees and court costs.

10.4 If, due to any reason within FeedSyndicate’s control, there is an interruption in the Services which continues for thirty (30) days following written notice to FeedSyndicate of such interruption, you may terminate your Subscription immediately, in which case FeedSyndicate’s only obligation to you will be to refund, pro rata, any unused fees paid in advance.

10.5 On the effective date of cancellation or termination for any reason under this Agreement, you must erase or destroy any FeedSyndicate Content accessed or displayed by you. Your license to use the FeedSyndicate Content is temporary and specific to the Term of your subscription.

10.6 The following provisions shall survive termination or expiration of this Agreement: Sections 2, 4, 5, 7, 8, 9, 11, and this Section 10.6.

 

11. MISCELLANEOUS

11.1 This Agreement and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of law.

The parties hereby agree that any controversy, claim or dispute arising out of or relating to this Agreement, shall be settled by binding arbitration in Washington, District of Columbia. Such arbitration shall be conducted in accordance with the then prevailing commercial arbitration rules of JAMS Arbitration, Mediation and ADR Services (“JAMS”), with the following exceptions if in conflict: (a) one arbitrator shall be chosen by JAMS; and (b) each party to the arbitration will pay its pro rata share of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator. The award may be confirmed and enforced in any court of competent jurisdiction. The parties hereby agree that any federal or district court sitting in the Washington, District of Columbia is a court of competent jurisdiction. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity; provided however, that nothing in this section shall be construed as precluding the bringing of an action for injunctive relief or other equitable relief. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO. You may assign the Agreement without the prior written consent of FeedSyndicicate provided, however, that you may assign this Agreement without such consent in connection with any merger, consolidation, acquisition, amalgamation or any sale of such party’s assets or those assets to which this Agreement relates or any other transaction in which more than fifty percent (50%) of such party’s voting securities are transferred. If one or more provisions of this Agreement are held to be unenforceable, then the balance of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable. The relationship between the parties shall be that of independent contractors, and neither you nor FeedSyndicate nor any FeedSyndicate consultant or contractor shall be deemed an agent or employee of any other party hereunder. Any notices shall be sent to legal@feedsyndicate.com in writing, and shall be deemed to have been delivered the next business day after sending by confirmed facsimile or email and/or 5 (five) business days after being sent by first class mail. Both parties agree to accept electronic signatures for all agreements. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof.

 

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