Platform Terms of Service

Thank you for choosing Selling.com! These Platform Terms of Service, together with your Quotation constitute an Agreement between Selling.com, Inc. (Selling.com) and you as a Licensee of Selling.com’s products and/or services (“Services”).

SELLING.COM AND LICENSEE AGREE THAT THESE SELLING.COM LICENSE TERMS AND CONDITIONS (“THE TERMS”) SHALL GOVERN THE RELATIONSHIP BETWEEN THE PARTIES AS TO ANY SELLING.COM PRODUCTS OR SERVICES PROVIDED OR TO BE PROVIDED TO LICENSEE AS SET FORTH IN A DOCUMENT INCORPORATING THESE TERMS (A “QUOTATION”). AS TO ANY PARTICULAR ORDERING DOCUMENT, THE ORDERING DOCUMENT, THE SERVICES DEFINITIONS AND SERVICE-SPECIFIC TERMS AND CONDITIONS, AND THESE TERMS TOGETHER CONSTITUTE THE AGREEMENT OF THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.” IN THE EVENT OF ANY CONFLICT BETWEEN THE ORDERING DOCUMENT AND THESE TERMS, THESE TERMS SHALL PREVAIL UNLESS THE ORDERING DOCUMENT EXPRESSLY PROVIDES THAT IT IS MODIFYING THESE TERMS WITH RESPECT TO SUCH AGREEMENT.

  1. DEFINITIONS

    • “Authorized Users” means a person designated by the Licensee as a permitted user of the Services.
    • “Confidential Information” means non-public information that a party designates as being confidential or which, under the circumstances surrounding disclosure, reasonably ought to be treated as confidential. This includes, but is not limited to improvements, inventions, discoveries, processes, methods, design projects, research and development data, technical specifications, plans, drawings, sketches; business information, including product costs, vendor and customer lists, price lists, production schedules, business plans, sales, revenue, profit and loss information and any other information or knowledge not generally available to the public. Selling.com pricing and other terms of any Service Order constitute Confidential Information.
    • “Excluded Claims” means those claims as set forth in section 18.d.
    • “Selling.com” means Selling.com, Inc. as set forth in the Quotation.
    • “Selling.com Technology” means the software and/or other technology, including Selling.com’s platform and applications provided with Selling.com’s services.
    • “Data”, unless used in a different context,  means personal data.
    • “Licensee” means the party to whom Selling.com is to provide products or services pursuant to the Ordering Document (whether identified as “licensee”, “customer”, “client” or similar designation in the Quotation). If “Licensee” includes more than one legal person, the obligations imposed upon each shall be joint and several. The act of, notice from or to, or signature of any one or more of the persons included within “Licensee” shall be binding on all such persons with respect to all rights and obligations under this Agreement, including but not limited to any renewal, extension, termination, or modification of this Agreement.
    • “Licensed Material” means Selling.com’s platform, software, applications and technology, and any related documentation (including, without limitation, the content, layout, functions, design, appearance, trade and service marks, copyrights, patents, and other intellectual property) 
    • “Licensed Materials Contact” means all data, graphics, images, files, information, text, voice content, recordings, and other content and materials that are collected, uploaded, posted, delivered, provided, or otherwise transmitted or stored by Licensee in connection with Licensee’s use of the Services.
    • “Quotation” means a written description of services that is published by Selling.com and agreed to or acknowledged by Licensee by signature, online acknowledgement, or by proceeding with the ordered services. The “Quotation” may be titled “Insertion Order”, “Service Order”, “Purchase Order”, “Work Order”, “Launch Document”, “Production Order” or with similar title.
    • “Services” means the products and/or services set forth in the Quotation. The Services may include Licensed Materials, access to and/or use of Selling.com Technology, or other services including support services offered in conjunction services. Specific Services may be defined by and are subject to the Services Definitions and Service-Specific Terms and Conditions included with the Quotation.
    • “Subscription Fees” means fees stated in the Quotation and any other fees applicable to its subscription to Services as provided herein.
    • “Term” means the valid time period of this Agreement as set forth in the Quotation and the subsequent period of time for which the Agreement is in force until it is terminated as set forth in this Agreement.
    • “Third Party Applications” means computer software programs and other technology that are provided or made available to Licensee or Authorized Users by third parties, including those with which the Selling.com Technology may interoperate, including, for example, Licensee’s Customer Relations Management software, marketing automation software, or sales enablement software, if any.

  2. SUBSCRIPTION SERVICES AND GRANT OF LICENSE

    • Selling.com, directly or through an affiliate, agrees to provide to Licensee the Services as set forth in the Quotation.
    • Selling.com will make the Services available to the Licensee via password-protected online access accessible by Licensee with usernames and passwords.
    • Subject to the terms of the Agreement and your payment of undisputed fees, Selling.com grants to Licensee a non-exclusive, non-transferable, non-sublicensable right to access and use the Services for Customer’s internal use during the term of the Agreement.
    • The Services will be provided “as is” and may be updated on an ongoing basis and provided according to the criteria set forth in the Quotation. Information provided as part of any Licensed Materials may be updated on an ongoing basis and provided according to the criteria used to define the scope of the subscribed Services. Licensee understands and acknowledges that the contents of Licensed Materials will change over time as the data is updated, and that at any given time it has a right to access and use the data to which it is subscribed as it exists at that time. Certain portions of the Services may be provided by Selling.com’s third party licensors, and Selling.com’s ability to provide such information may be subject to the willingness of such licensors to continue to contract with Selling.com. Licensee therefore acknowledges that the content of licensed materials may change over time and that Selling.com, in its sole discretion, may modify, supplement or discontinue content or features. Selling.com shall have no liability to Licensee for such modifications to its Services where the Services substantially conform to the Quotation.
    • Selling.com will provide Licensee and Authorized Users with reasonable technical support for the Services. Personnel is available by email, online chat, or phone for feedback, problem solving, or general questions between the hours of 9:00 a.m. and 5:00 p.m. Eastern Time (Monday – Friday) and will make reasonable efforts to acknowledge support requests within 24 business hours. Premium support services are subject to any service-specific terms and conditions included with the Quotation.
    • In the event of a conflict between the terms of the Quotation and the terms of this Agreement, the terms of the Quotation will prevail to the extent of such conflict.

  3. THIRD PARTY APPLICATIONS

    • Selling.com may, occasionally, offer platform features, software, or applications designed to allow Licensee to use Selling.com Technology and the Licensed Materials in conjunction with one or more Third Party Applications. 
    • Selling.com is not responsible for and does not endorse any Third-Party Applications or websites linked to by Selling.com Technology. 
    • Licensee shall not integrate Licensed Materials into any Third-Party Applications for the purpose of allowing persons who are not Authorized Users to access or use the Licensed Materials

  4. OWNERSHIP AND RESTRICTIONS OF SELLING.COM LICENSED MATERIALS AND TECHNOLOGY

    • Licensee acknowledges and agrees that the Licensed Materials, the Selling.com Technology, and any related documentation are the property of Selling.com, whether or not they are trademarked, copyrighted, or patented. Licensee further agrees that this Agreement does not transfer any ownership, right, title, or interest in the Licensed Materials, and Licensee expressly disclaims and waives any and all claims to any ownership to Licensed Materials, the Selling.com Technology, and any related documentation. This includes, without limitation, any Licensed Materials that Licensee downloads, prints, saves, or uses.
    • Licensee further agrees that the licensed materials are unique, special, and valuable. Subject to the rights expressly granted by this Agreement, Selling.com, its affiliates and/or its licensors reserve all right, title, and interest in and to the Licensed Materials, including all related intellectual property rights.
    • All other trademarks, registered trademarks, product names, and company names or logos mentioned in or by Selling.com are the property of their respective owners. Reference to any products, services, processes, or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by Selling.com nor any endorsement, sponsorship, or recommendation of Selling.com by any such person or entity.

  5. AUTHORIZED USE

    • Licensee shall be entitled to allow access to Authorized Users up to the number designated in the Quotation. Each Authorized User will be provided a unique username and password. Such usernames and passwords may not be shared and may not under any circumstances be used by anyone who is not an Authorized User. If any Authorized User’s login credentials are disclosed to any person who is not an Authorized User but who would satisfy the qualification as stated herein, such disclosure shall constitute Licensee’s subscription as of the time of such disclosure to the number of additional Authorized Users equal to the number of persons to whom such credentials were disclosed. If Licensee designates additional persons as Authorized Users beyond the number subscribed, such designation may be deemed by Selling.com as Licensee’s subscription to such additional number of Authorized Users. In the event of such subscription, Selling.com may charge Licensee a corresponding additional Subscription Fee equal to the prevailing per-Authorized User rate multiplied by the period from the date of designation until the end of the then-current Term. Licensee shall be responsible for compliance with the terms of this Agreement by all Authorized Users, including, without limitation, the restrictions on use and transfer of Licensed Materials set forth herein. 
    • Licensee acknowledges and agrees that Authorized Users must provide Selling.com with certain identifying information, including their name and a business email address, and that Authorized Users may be required to accept an end-user license agreement agreeing to Selling.com’s privacy policy and representing that they are authorized to access the Services on Licensee’s behalf.

    • Licensee shall not designate any person as an Authorized User unless such person is: 

      • a natural person, and
      • an employee of Licensee, UNLESS
      • the non-employee (i.e., an independent contractor) receives prior authorization from Selling.com and Licensee takes reasonable steps to ensure such non-employee uses the Services only as permitted to an Authorized User under this Agreement. 
    • If an Authorized User’s employment terminates, such person’s authorization to access the Services shall be revoked automatically without any further action by Selling.com. In the event of such termination, Licensee shall promptly notify Selling.com and take all reasonable steps to ensure that such person ceases accessing the Services. Licensee may reassign Authorized User designations in good faith, subject to the qualification requirements herein.
    • Licensee shall only access or use the Services for the purpose of business-to-business sales, marketing, recruiting, or business development activities of Licensee. 

    • Licensee shall not access or use the Licensed Materials for the benefit of or on behalf of any person or entity except Licensee. Subject to Licensee’s compliance with all applicable laws, rules, and regulations, Licensee may use the Services to:

      • view the Licensed Materials;
      • communicate with any Licensed Materials Contact in a manner that relates to such person’s profession, business, or employment; and
      • identify prospective sales opportunities, research Licensee’s existing customers and prospects, and otherwise analyze the Licensed Materials in a manner relating to Licensee’s business-to-business sales, marketing, recruiting, and business development activities. 
    • Licensee shall not permit anyone who is not an Authorized User to access or use the Services, including any Licensed Materials or any Authorized User login credentials. Licensee shall not distribute, sublicense, transfer, sell, offer for sale, disclose, or make available any of the Licensed Materials or any part of the Services to any third party. 

    • Except through services provided by Selling.com or its affiliates or as expressly permitted by Selling.com, Licensee shall not:

      • use the Licensed Materials to create audience segmentation for or otherwise place digital ads or ads in digital media (also known as onboarding or digital activation);
      • utilize or incorporate any Selling.com credentials into any Third-Party Applications or use access to create or develop audience segmentation outside of services provided by Selling.com;
      • reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of the Selling.com Technology;
      • reproduce, modify, create, or prepare derivative works of any of the Selling.com Technology or related documentation; 
      • use of Selling.com’s Licensed Materials, Platform or Technology, to create or attempt to create similar and/or competitive Materials, Platform or Technology,  or
      • distribute or display any of the Selling.com Technology or related documentation other than to Authorized Users; 
      • share, sell, rent, or lease or otherwise distribute access to the Selling.com Technology; or
      • use the Selling.com Technology to operate any timesharing, service bureau, or similar business;
      • create any security interest in the Selling.com Technology; or alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within or on the Selling.com Technology or related documentation;
      • disclose the results of any benchmark tests to any third parties without Selling.com’s prior written consent;
      • circumvent, employ measure(s), or otherwise attempt to circumvent limitations to purchased credits or Authorized Users; or
      • use automated means, such as bots or crawlers, to access any Selling.com Technology or extract information therefrom (except such means as are included within the Selling.com Technology, such as Integration Tools, or such other means as are expressly agreed to in writing by Selling.com).

      LICENSEE MUST ONLY USE SELLING.COM TECHNOLOGY IN ACCORDANCE WITH THIS AGREEMENT AND NOT FOR THE BENEFIT OF ANY THIRD PARTY, UNLESS LICENSEE HAS EXPRESS PRIOR WRITTEN CONSENT FROM SELLING.COM.

    • Licensee shall not incorporate any portion of the Services or Licensed Materials into Licensee’s own products or services. Upon expiration or termination of this Agreement for any reason, Licensee shall cease accessing the Services and shall cease using the Licensed Materials in any way. Notwithstanding the foregoing, where Licensee has, through using the Licensed Materials in a manner permissible under this Agreement, received responsive communication from a Licensed Materials Contact, Licensee shall not be required to delete such Licensed Materials Contact record upon expiration or termination hereof, and may continue to use such information in a manner otherwise consistent with this Agreement. 
    • Licensee agrees to use identifying information to maintain any Licensed Materials that are downloaded and/or integrated into any Third-Party Applications and provide attribution that such materials originated with Selling.com.

    • In the event a good faith suspicion exists that Licensee, an Authorized User under Licensee’s license, or an unauthorized third party who has been provided access by Licensee is engaged in or facilitated any unauthorized access or use of the Licensed Materials or of Selling.com’s Technology in violation of this Agreement, Selling.com, in its sole discretion, may:

      • immediately suspend Licensee’s access to the Licensed Materials and/or Selling.com Technology until an investigation is completed to Selling.com’s reasonable satisfaction relative to issues pertaining to any such unauthorized access or use; or
      • immediately terminate the agreement.

      Selling.com will have no liability to Licensee for such termination and/or suspension and a suspension shall have no effect on the Term of this Agreement nor on Licensee’s obligation to pay the subscription fee as set forth in the Quotation.  However, except where License has materially breached this agreement, Selling.com shall prorate and credit the subscription fee for the period of the suspension or termination.

    • Licensee is solely responsible for:

      • all communications between Licensee or any Authorized User and any Licensed Materials Contact; and
      • all Licensee Data, and represents and warrants that it has all rights and authority necessary to  provide Licensee Data to Selling.com without violation of any third-party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights, and
      • making any required notices (including without limitation any privacy notices required by applicable local, state, federal, and international laws and regulations); and
      • obtaining any required consent(s) and/or permission(s) sufficient to authorize Selling.com’s performance of its obligations and exercise of its rights as set forth in this Agreement.

    • Licensee shall not use the Services to determine a consumer’s eligibility for:

      • credit or insurance for personal, family or household purposes; or 
      • employment; or
      • a government license or benefit; or 
      • any other purpose governed by the Fair Credit Reporting Act.

  6. TERM/TERMINATION OF AGREEMENT & EFFECT OF SUCH

    • Subject to earlier termination as provided below, this Agreement will start on the effective date and will continue for the initial Term as set forth in the “Quotation.” Thereafter, this Agreement will automatically renew for additional periods of the same duration as the initial Term, unless either party requests termination at least 30 days prior to the end of the then-current Term. The fee for each renewal Term shall be the fee applicable to all Services to which Licensee was subscribed as of the renewal date plus an increase of eight percent (8%).
    • This Agreement is not cancellable and shall remain in effect until it expires or is earlier terminated, according to the terms of this Agreement.

    • A party may terminate this Agreement for cause if: 

      • Immediately upon written notice to the other party if the other party materially breaches this Agreement relative to prohibited or unauthorized use or access of the licensed materials or Selling.com technology as set forth in section 5;
      • upon thirty (30) days written notice to the other party if the other party materially breaches this Agreement and such breach remains uncured at the expiration of such period; or 
      • if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
    • If this Agreement is terminated by Selling.com due to an uncured material breach by Licensee, all subscription Fees payable to Selling.com for the remainder of the then-current Term shall be immediately due and payable to Selling.com, and Licensee shall promptly remit all such fees to Selling.com.
    • Licensee agrees if this Agreement is terminated by Licensee due to an uncured material breach by Selling.com, Selling.com shall promptly refund the pro-rata amount of any pre-paid Subscription Fees attributable to periods after the date of such termination.
    • UPON EXPIRATION OR TERMINATION DUE TO CUSTOMERS MATERIAL BREACH OF THIS AGREEMNT, UNLESS OTHERWISE PROVIDED HEREIN, SELLING.COM MAY REQUEST AND LICENSEE AGREES TO DESTROY ANY AND ALL COPIES OF LICENSED MATERIALS AND ANY INFORMATION IT HAS OBTAINED FROM THE LICENSED MATERIALS, WHETHER AS A PRINT COPY OR IN ELECTRONIC FORM. 
    • In no event will termination relieve Licensee of its obligation to pay any fees payable to Selling.com for the period prior to the effective date of termination.
    • The parties may terminate this Agreement at any time upon a mutual agreement, such agreement MUST be in writing.

  7. TAXES & FEES

    • Licensee shall pay to Selling.com the undisputed fees described in the Quotation in accordance with the terms set forth therein. Unless otherwise indicated in the Quotation, the entire fee shall be due and payable within thirty (30) days of Licensee’s receipt of an invoice. In addition, if Licensee’s terms of use require the payment of additional fees, Licensee will be billed for such extra charges and Licensee agrees to pay the additional fees invoiced by Selling.com. Except as expressly provided for herein, the fees are non-refundable and non-cancellable without setoff or counterclaim, and without any deduction or withholding.
    • Acceptance of partial payment or any payment of less than the full amount payable at any given time shall not constitute a waiver or release of Selling.com’s right to unpaid amounts.
    • Full payment for undisputed invoices must be received by Selling.com within thirty (30) days after Licensee’s receipt of each such invoice. Undisputed, unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.

    • If Licensee fails to timely make any payment of fees, Selling.com may, in its sole discretion, take any or all of the following actions:

      • restrict or suspend Licensee’s access to the licensed materials;
      • terminate this Agreement;
      • accelerate the payment of fees such that all unpaid fees shall be immediately payable.

      Restriction or suspension of Licensee’s online access to the licensed materials during period of non-payment shall have no effect on the term of this Agreement nor on Licensee’s obligation to pay the fee for the period of suspension or restriction.

    • Licensee will be responsible for all taxes, including, but not limited to, sales tax, use tax and value added taxes associated with the Services and assessable by any local, state, provincial, federal, or foreign jurisdiction. If Selling.com has a duty to collect and remit tax, the tax may be invoiced to Licensee and shall be paid by the Licensee upon receipt of the invoice. Licensee shall indemnify, defend, and hold harmless Selling.com and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns from and against any actual or threatened claims, actions, or proceedings of or pertaining to any taxing authority arising from or related to the failure to pay taxes owed by Licensee, except to the extent that any such claim, action, or proceeding is directly caused by a failure of Selling.com to remit amounts collected for such purpose from Licensee.

  8. CONFIDENTIALITY

    • Licensee acknowledges and agrees that Selling.com will operate in accordance with its published Privacy Policy (available at Privacy Policy or as Selling.com may otherwise indicate), which is incorporated herein.
    • Neither party may disclose any Confidential Information to any third-party except its employees, agents and/or independent contractors to whom disclosure is reasonably required provided that such individuals and entities have agreed to keep such information confidential in the same or a substantially similar manner as provided for in this Agreement. Neither party will use any Confidential Information except as expressly permitted by, and as required to achieve the purposes of, this Agreement. Each party will take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information of a similar nature, but in no event with less than reasonable care, to maintain the confidentiality of the Confidential Information.
    • The parties shall take all necessary and appropriate steps in order to ensure that its employees and subcontractors adhere to the provisions of this section. All Confidential Information shall be returned to the original owner of said Confidential Information or destroyed upon receipt of a written request from the original owner of said Confidential Information.

    • Confidential Information will not include: 

      • information that was previously known, without obligation of confidentiality, by the receiving party, prior to any disclosure from the other party;
      • information that is or otherwise becomes available in the general public through no breach of this Agreement by the receiving party;
      • information that was received without restriction from any person or entity that the receiving party reasonably believes is not in violation of any duty of non-disclosure on the part of such person or entity; 
      • information that the receiving party developed independently of any disclosures of such information by the disclosing party or
      • a contact’s identity and contact information, where the receiving party, through the use of the services, has developed a business relationship with that contact.
    • Notwithstanding anything herein to the contrary, a party may disclose Confidential Information in accordance with a judicial or other governmental order or as may be required by applicable law; provided, however, that a party so disclosing Confidential Information (the “Disclosing Party”) will give the other party (the “Protected Party”) as much advance notice as reasonably possible of any such disclosure so that the Protected Party may seek a protective order or other remedy. The Disclosing Party will comply with any protective order or equivalent relating to the Confidential Information. If there is no protective order, the Disclosing Party will use its reasonable best efforts to ensure that only the minimum portion of the Confidential Information necessary to comply with the law or order is disclosed and reasonably cooperate with the Disclosing Party, at the Disclosing Party’s expense, in its efforts to obtain a protective order or other legally available means of protection.
    • The parties agree that money damages might not provide a sufficient remedy for any breach or threatened breach of this Agreement, including the confidentiality provisions of this section. As such, in addition to all other remedies available at law (which neither party waives by the exercise of any rights hereunder), the Disclosing Party shall be entitled to seek specific performance and injunctive and other equitable relief as a remedy for any such breach or threatened breach, and the Receiving Party hereby waives any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.

  9. DATA PROTECTION

    • To the extent that either party transmits, receives stores or processes personal information under this Agreement, that party shall comply with all applicable laws, rules and regulations, including applicable foreign state law, regarding privacy and the lawful processing of personal data, or other privacy rules or regulations.
    • To the extent that personal data obtained by Licensee under this Agreement is subject to the General Data Protection Regulation of the European Union (the “GDPR”) or other similar privacy rules or regulations, each party agrees that it is a “controller” with respect to such data and agrees to comply with all applicable provisions of the applicable privacy law or regulation. Notwithstanding anything in this Agreement to the contrary, Licensee shall not use any personal information unless it has a lawful basis to process such information. Licensee represents, warrants, and covenants that it will not, through its use of or access to the Services, engage in, encourage, or permit conduct that violates or would violate any applicable law, rule, or regulation or right of any third-party.
    • To the extent that personal data obtained by Licensee under this Agreement is subject to the E.U. General Data Protection Regulation (the “GDPR”) or the retained version of the GDPR applicable in the UK (the “UK GDPR”, together with the GDPR the “UK/EU GDPR”), each party agrees: (a) that it is a “controller” with respect to such data as defined in the GDPR; (b) to comply with all applicable provisions; and (c) that the Controller to Controller Data Processing Agreement is incorporated by reference into these Terms in relation to such personal data. Notwithstanding anything in this Agreement to the contrary, Licensee shall not use any information subject to the UK/EU GDPR unless it is for a purpose that constitutes a “legitimate interest” (including direct marketing) as defined in the applicable UK/EU GDPR, or Licensee has another lawful basis to process such information. Selling.com may publish a list of people who have requested that their personal information be removed from Selling.com’s database. Licensee agrees to review such list on a regular basis (no less frequently than once every thirty days) and to remove from its possession any personal information relating to such persons in its possession to the extent obtained from Selling.com unless Licensee has established an independent lawful basis to process such person’s personal information. To the extent that any Services may involve Selling.com receiving personal data from Licensee that is subject to the UK/EU GDPR, the Controller to Processor Data Protection Agreement is incorporated by reference into these Terms and shall set out the status and responsibilities of the parties in relation to such personal data.
    • Each party shall have an obligation to immediately notify the other party if it makes a determination that it can no longer meet compliance obligations under applicable privacy or data protection laws.
    • Licensee acknowledges that, through the use of Selling.com’s Services, Licensee may have to transmit business contact information to Selling.com for purposes of expunging, correcting, or updating records with information from Selling.com’s database. Selling.com will make commercially reasonable efforts to respond to such requests.

    • Selling.com may access, collect, and use any information from or relating to Licensee and Licensee’s use of the Services for: 

      • customer and technical support,
      • regulatory and third-party compliance purposes,
      • the protection and enforcement of Selling.com’s rights,
      • monitoring compliance with and investigating potential breaches of the terms of this Agreement, and
      • recommending additional products or services to Licensee.
    • Selling.com reserves the right to share this information with Selling.com’s partners or affiliates for the same purposes. Licensee grants Selling.com and Selling.com affiliates the perpetual right to use the information in this section for purposes such as to test, develop, improve, and enhance Selling.com’s products and services, and to create and own derivative works based on the information in this section, so long as neither Licensee, Authorized User nor any other individual is identifiable as the source of such information.

  10. REPRESENTATIONS & WARRANTIES

    • Each party represents, warrants and covenants to the other party that:

      • it has all necessary rights and authority to enter into this Agreement and to grant the rights and licenses hereunder,  
      • the execution or electronic acceptance of this Agreement and the performance of its respective obligations hereunder do not and will not violate any agreement to which such party is a party or by which it is otherwise bound, and
      • it is duly organized and validly existing and authorized to do business in the jurisdictions where it operates; and
      • its performance hereunder will comply with all applicable laws, rules and regulations.
    • Selling.com warrants that the Services will materially conform to the description set forth in the Quotation. As Selling.com’s sole and exclusive liability and Licensee’s sole and exclusive remedy for the breach of the warranty set forth herein, Selling.com will use commercially reasonable efforts to correct the Services to comply with such warranty without charge. If Selling.com is unable to make the Services operate as warranted within thirty (30) days after Licensee’s written notice, then Licensee or Selling.com may terminate this Agreement and Selling.com will refund any fees actually paid by Licensee (excluding any implementation fees or other one-time fees for professional services) to Selling.com for the remainder of the then-current term.
    • Licensee represents and warrants, and covenants that it will not, in connection with this Agreement, including its use of or access to the Services, engage in, encourage, or permit conduct that violates or would violate any applicable law, rule, or regulation or any right of any third-party.
    • Selling.com represents and warrants that it possesses all necessary authority and permissions to provide Licensee with access to the Licensed Materials and Selling.com Technology.

  11. DISCLAIMER OF WARRANTIES

    • Services may be temporarily unavailable for scheduled maintenance, unscheduled emergency maintenance, or because of other causes beyond Selling.com’s reasonable control. Selling.com will use reasonable efforts to provide advance notice in writing or by email of any service disruption. However, Selling.com does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.
    • Selling.com makes no warranty with respect to the security of such third-party infrastructures or third-party products.
    • EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND NEITHER PARTY MAKES ANY 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 AND EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD-PARTY.
    • SELLING.COM DOES NOT REPRESENT, COVENANT, WARRANT, OR PROMISE THAT ANY OF THE SERVICES MAY BE USED OR RELIED UPON BY LICENSEE OR ANY OTHER PARTY TO COMPLY WITH ANY LAW, RULE, REGULATION, INDUSTRY STANDARD, OR POLICY, NOR THAT ANY OF THE SERVICES WILL RENDER LICENSEE NOR ANY OTHER PARTY COMPLIANT WITH ANY LAW, RULE, REGULATION, INDUSTRY STANDARD, OR POLICY. SELLING.COM EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW ANY SUCH REPRESENTATION, COVENANT, WARRANTY, OR PROMISE. IF AND TO THE EXTENT THAT LICENSEE USES ANY OF THE SERVICES WITH THE INTENTION OF OR FOR THE PURPOSE OF COMPLYING WITH ANY LAW, RULE, REGULATION, INDUSTRY STANDARD, OR POLICY, LICENSEE ACKNOWLEDGES AND AGREES THAT SUCH SERVICES ARE, IN THAT REGARD, PROVIDED “AS IS,” AND LICENSEE ASSUMES FULL RESPONSIBILITY FOR ITS COMPLIANCE. LICENSEE AGREES THAT SELLING.COM SHALL HAVE NO LIABILITY TO LICENSEE FOR LICENSEE’S USE OF OR RELIANCE ON ANY SERVICES FOR SUCH PURPOSES. THIS PARAGRAPH IS NOT INTENDED TO DIMINISH, MODIFY, OR RELEASE ANY EXPRESS REPRESENTATIONS AND WARRANTIES STATED HEREIN.

  12. LIMITATION OF LIABILITY

    • TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL, LOST BUSINESS, LOST OR CORRUPTED DATA, OR LOST PROFITS DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER FORESEEABLE OR NOT; AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    • LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY UNCURED BREACH BY SELLING.COM IS TERMINATION BY WRITTEN NOTICE AND A REFUND OF THE PRORATED PORTION OF THE FEES THAT LICENSEE HAS ACTUALLY PAID. SELLING.COM’S MAXIMUN LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID AND PAYABLE TO SELLING.COM UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE FIRST LIABILITY AROSE. FURTHER, SELLING.COM SHALL NOT BE LIABLE FOR ANY LOSS, COST, DAMAGE OR EXPENSE INCURRED IN CONNECTION WITH THE USE OF THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING ANY TECHNICAL MALFUNCTION, INPUTTING ERRORS, SYSTEM ERRORS, CORRUPTION OR LOSS OF DATA, OR OTHER DAMAGE.
    • THE LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO ANY CLAIMS OR LIABILITIES BASED ON INDEMNIFICATION, INCLUDING TAX INDEMNIFICATION.

  13. INDEMNITY

    • Selling.com will indemnify, defend and hold harmless Licensee and its shareholders, officers, directors, employees, affiliates and agents from and against any and all damages, liabilities, costs, expenses, and losses (including, without limitation, reasonable legal fees) incurred arising out of any claim, suit, action or proceeding by a third-party to the extent that such losses arise from allegations that the Services infringe, misappropriate, or violate any intellectual property rights. If any portion of the Services becomes, or in Selling.com’s opinion is likely to become, the subject of a claim of infringement, Selling.com may, at Selling.com’s option:

      • procure for Licensee the right to continue using the Services; 
      • replace the Services with non-infringing software or services that do not materially impair the functionality of the Services;
      • modify the Services so that it becomes non-infringing; or 
      • terminate this Agreement and refund any fees actually paid by Licensee for the remainder of the then-current term, and upon such termination, Licensee will immediately cease all use of the Services.
    • Notwithstanding the foregoing, Selling.com will have no obligation under this section or otherwise with respect to any infringement claim based upon any use of the Services not in accordance with this Agreement; any use of the Services in combination with other products, equipment, software or data not recommended or supplied by Selling.com; or any modification of the Services by any person other than Selling.com.
    • THIS SECTION SETS FORTH LICENSEE’S SOLE REMEDY AND SELLING.COM’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED ACTIONS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
    • Licensee will indemnify, defend and hold harmless Selling.com and its shareholders, officers, directors, employees, affiliates and agents from and against any and all Losses incurred arising out of any, actual or threatened, claim, suit, action or proceeding by a third-party that arises from Licensee’s use of the Services in violation of this Agreement.
    • Each party’s obligations set forth above are expressly conditioned upon each of the foregoing: (1) the party seeking indemnification (the “Indemnified Party”) will promptly notify the other party (the “Indemnifying Party”) in writing of any threatened or actual claim, lawsuit or proceeding, except that the Indemnified Party’s failure to promptly notify the Indemnifying Party will not affect the Indemnifying Party’s obligations hereunder except to the extent that such delay prejudices the Indemnifying Party’s ability to defend such claim, lawsuit or proceeding; (2) the Indemnifying Party will have sole control of the defense or settlement of any claim or suit, except that the Indemnifying Party may not settle a claim or suit without the Indemnified Party’s prior written consent (not to be unreasonably withheld) if the settlement requires the Indemnified Party to admit any liability or take any action or refrain from taking any action (other than ceasing use of infringing materials); and (3) the Indemnified Party will cooperate with the Indemnifying Party to facilitate the settlement or defense of any claim, lawsuit or proceeding.

  14. CHOICE OF LAW

    • This Agreement shall be deemed to be made under the laws of Florida and for all purposes shall be governed by, enforced under, and constructed in accordance with the laws thereof, without regard to principals of conflicts of law.
    • Subject to the agreement to arbitrate disputes (below), any court action pertaining to this Agreement shall be brought in a federal or state court located in or serving Palm Beach County, Florida. The Licensee expressly consents to and agrees to the venue and jurisdiction of the courts in Palm Beach County, Florida for purposes of determining any and all rights or obligations under this Agreement. Notwithstanding the foregoing, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).

  15. ATTORNEY FEES

    • In the event of any dispute arising under this Agreement, whether pursued in arbitration or in court, the prevailing party shall be entitled to recover its reasonable costs and expenses actually incurred in endeavoring to enforce the terms of this Agreement, including reasonable attorney fees.

  16. DISPUTE RESOLUTION AND CLASS ACTION WAIVER

    • Except for Excluded Claims, defined below, any dispute, claim, or controversy arising out of or relating in any way to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including any determination regarding the scope or applicability of this agreement to arbitrate, shall be determined by mandatory, final and binding arbitration before a single arbitrator. The place of arbitration shall be in Palm Beach County, Florida. The arbitration shall be administered by the American Arbitration Association (“AAA”) pursuant to AAA rules and procedures. All arbitration fees and costs, including any upfront costs and application fees, shall be borne by the Parties as the arbitrator may allocate, or if the arbitrator makes no such allocation, by both Parties in equal shares. The Parties acknowledge that this Agreement evidences a transaction involving interstate commerce and further agree that any arbitration(s) arising from or in relationship to this Agreement is/are to be administered as a commercial matter(s) under AAA’s Commercial Rules.
    • This section shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall have the power to award any remedy provided under applicable law, except that the arbitrator shall have no power to award: (1) punitive, exemplary, or multiple damages; (2) mandatory or prohibitory injunctive relief, except for temporary relief in aid of arbitration or to secure the payment of an award; or (3) any damages in excess of the limits set forth in this Agreement.
    • No party shall commence or seek to prosecute or defend any dispute, controversy, or claim based on any legal theory arising out of or relating to this Agreement, or the breach thereof, other than on an individual, non-class, non-collective action basis. No party shall seek to prosecute or defend any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach thereof, in a representative or private attorney general capacity. The arbitrator shall not have the power to consolidate any arbitration under this Agreement with any other arbitration, absent agreement of all parties involved, or otherwise to deal with any matter on a non-individual, class, collective, representative, or private attorney general basis.

    • The following claims (“Excluded Claims”) shall be litigated and are not subject to arbitration:

      • Claims for the non-payment of subscription fees to the extent the claim is for $10,000 or less; 
      • claims against a party to this Agreement under the provisions involving claims by third parties; 
      • claims by a party for the unauthorized use, or the misuse, by the other party of the first party’s confidential information;
      • claims to collect taxes; and
      • claims for injunctive relief, except for temporary relief in aid of arbitration or to secure the payment of an arbitration award under this Agreement.

      These litigation claims are not subject to arbitration and are expressly excluded by the parties from arbitration unless otherwise agreed in writing.

    • Each party’s obligations set forth above are expressly conditioned upon each of the foregoing: (1) the party seeking indemnification (the “Indemnified Party”) will promptly notify the other party (the “Indemnifying Party”) in writing of any threatened or actual claim, lawsuit or proceeding, except that the Indemnified Party’s failure to promptly notify the Indemnifying Party will not affect the Indemnifying Party’s obligations hereunder except to the extent that such delay prejudices the Indemnifying Party’s ability to defend such claim, lawsuit or proceeding; (2) the Indemnifying Party will have sole control of the defense or settlement of any claim or suit, except that the Indemnifying Party may not settle a claim or suit without the Indemnified Party’s prior written consent (not to be unreasonably withheld) if the settlement requires the Indemnified Party to admit any liability or take any action or refrain from taking any action (other than ceasing use of infringing materials); and (3) the Indemnified Party will cooperate with the Indemnifying Party to facilitate the settlement or defense of any claim, lawsuit or proceeding.

  17. REMEDIES

    • Except as provided elsewhere in this Agreement, all remedies provided for in this Agreement will be cumulative and in addition to, and not in lieu of, any other remedies available to either party by law, in equity or otherwise.
    • The parties recognize that the unauthorized disclosure of Confidential Information or, as to Licensee, Licensed Materials, may cause irreparable harm to the other party for which monetary damages may be insufficient, and in the event of such disclosure, such other party shall be entitled to seek an injunction, temporary restraining order, or other provisional remedy as appropriate without being required to post bond or other security.

  18. FORCE MAJEURE

    Neither party will be liable for or will be considered to be in breach of this Agreement on account of any delay or failure to perform as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs (which shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other natural occurrences, any conflicting order, direction, action or request of the United States federal, state or local government or of any regulatory department, agency, commission, court, bureau, corporation or other instrumentality, or of any civil or military authority, national emergencies, insurrections, riots, acts of terrorism, wars, strikes, lockouts, work stoppages or other such labor difficulties), the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of such event. Notwithstanding the foregoing, the parties’ obligations to one another shall be excused and/or postponed during the duration of the applicable force majeure event and shall resume as soon as practicable after the force majeure event has ended unless otherwise agreed to by the parties. No force majeure event alleviates a payment obligation.

  19. AUDIT

    During the Term of this Agreement and for a period of two (2) years after its expiration or termination, Licensee shall maintain complete and accurate records of Licensee’s use of the Licensed Materials and Selling.com Technology sufficient to verify compliance with this Agreement. Licensee shall permit Selling.com and its auditors, upon reasonable advance notice and during normal business hours, to examine such records and any systems used by Licensee in connection with the Licensed Materials. The scope of any such audit will be limited to verification of Licensee’s compliance with the terms of this Agreement. Any audit performed under this paragraph shall be at Selling.com’s expense, unless the audit uncovers material non-compliance with this Agreement, in which case, Licensee shall reimburse Selling.com for its reasonable out-of-pocket expenses incurred in performing such audit.

  20. UNENFORCEABILITY AND SURVIVAL

    If any provision of this Agreement is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not permitted by law), and the rest of this Agreement is to remain in effect as written. Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement will survive the expiration or termination of this Agreement.

  21. ENTIRE AGREEMENT & SEVERABILITY

    • This Agreement (these terms together with the applicable Quotation) is the complete and entire agreement between the Parties and supersedes any preexisting agreements, understandings, commitments, representations whether written, oral or implied.
    • If any provision of this Agreement is deemed unenforceable or found by an administrative body as invalid such invalidity or enforceability shall in no effect the other provisions of this Agreement which shall remain in full force and effect.
    • In no event will any delay, failure or omission (in whole or in part) in enforcing, exercising or pursuing any right, power, privilege, claim or remedy conferred by or arising under this agreement or by law, be deemed to be or construed as a waiver of that or any other right, so as to bar the enforcement of that, or any other right, power privilege, claim or remedy, in any other instance at any time or times subsequently.
    • If any provisions of the Agreement shall be declared to be invalid or unenforceable, in whole or in part, such invalidity or unenforceability shall not affect the remaining provisions hereof, which shall remain in full force and effect.
    • The headings contained in this Agreement are for convenience of reference only and shall not constitute a part hereof or define, limit or otherwise affect the meaning of any of the terms or provisions hereof.
    • All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

  22. MISCELLANEOUS PROVISIONS

    • MARKETING

      The parties agree Selling.com is authorized to use Licensee’s name and logo for its marketing efforts until such authorization is revoked in writing to:

      Selling.com, Inc.
      Attention Privacy
      2385 NW Executive Center Drive
      Suite 100
      Boca Raton, FL 33431
      privacy@selling.com

    • CURRENCY

      All monetary amounts specified in this Agreement are in United States dollars unless otherwise expressly stated.

    • AMENDMENT

      Selling.com may propose amendments to this Agreement at any time by providing notice of such proposed amendments in a manner permitted herein. Such proposed amendments shall be deemed accepted and become part of this Agreement thirty (30) days after the date such notice is given unless Licensee informs Selling.com that it does not accept such amendments. In the event Licensee informs Selling.com that it does not accept the proposed amendments, Selling.com shall have thirty (30) days to deem the lack of acceptance as a material breach and terminate this Agreement. If Selling.com does not find a material breach within thirty (30) days then the proposed amendments will not take effect and the existing terms will continue in full force and effect. No other modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of Selling.com and Licensee.

    • ASSIGNMENT

      This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of both parties hereto and their respective successors and assigns; provided, however, that this Agreement, nor any of the rights, interests or obligations hereunder may be assigned by either party hereto without the prior written consent of the other party.

    • NOTICE

      All notices or other communications permitted or required to be given hereunder shall be sent via electronic mail to the electronic mail address provided by the Licensee as set forth on the Service Order or as otherwise updated by Licensee. Notices to Selling.com shall be sent to info@selling.com. Such notices shall be deemed given when sent.

    • SUGGESTIONS & FEEDBACK

      If Licensee provides any suggestions, ideas, feedback, or recommendations to Selling.com regarding the Services (“Feedback”), Selling.com may use this Feedback for any purpose and without any obligation to Licensee. By providing Selling.com with Feedback, Licensee gives Selling.com a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Licensee, including Authorized Users, relating to the operation of the Services in any manner provided such information does not include any Licensee Confidential Information.

    • EXPORT COMPLIANCE

      The Services and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. The parties represents that they are not on any U.S. government denied-party list. Licensee will not permit any Authorized User to access or use any Services in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.

    • UNITED STATES GOVERNMENT END-USERS

      The Services provided by Selling.com are “commercial items” consisting in part of “commercial computer software” and “computer software documentation,” as such terms are used in the Federal Acquisition Regulation (“FAR”) and the Defense Federal Acquisition Regulation Supplement (“DFARS”). In accordance with FAR 12.211 (Technical data) and FAR 12.212 (Computer software), and DFARS 227.7102 (Commercial items, components, or processes) and DFARS 227.7202 (Commercial computer software and commercial computer software documentation), as applicable, the rights of the United States government to use, modify, reproduce, release, perform, display, or disclose computer software, computer software documentation, and technical data furnished in connection with the Services will be pursuant to the terms of this Agreement. This United States government rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation, or technical data. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights.

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