Attribytes Terms of Service

Terms of Use

Dated: August 14, 2018

These Terms of Use (these “Terms”) are an integral part of the Master Services Agreement (“Master Agreement”) by and between Attribytes, Inc., a Delaware corporation (“Attribytes”, “we”, “our”, or “us”) and Customer (as defined in the Master Agreement) or You. These Terms govern your access to and use of the Platform, Modules and Attribytes’ Data Pool (as the case may be).

Please read these Terms carefully before you start to use the Platform, Modules and/or Attribytes’ Data Pool (individually and collectively referred to in these Terms as the “Services”). By accessing, browsing, subscribing to, and using the Services, You acknowledge that you have read, have understood, and You accept and agree to be bound by these Terms, and to comply with all applicable laws and regulations. If You do not agree to these Terms, You must not access or use the Services.

From time to time and in our sole discretion, we may modify these Terms and post those modifications to the Services. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. However, any changes to the dispute resolution provisions set out in Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice before the date the change is posted on these Terms.

Your continued use of the Services following the posting of revised Terms means that You accept and agree to the changes.

1. Access License; Conditions of Use
1.1. License to Services
Subject to these Terms and the terms and conditions of any Master Agreement governing your use of the Services, Attribytes grants to You a limited, non-exclusive, non-transferable, non-sublicensable license to use the Services as ordered and paid for by Customer or You.

1.2. License to Reports
Subject to these Terms and the terms and conditions of any Master Agreement governing your use of the Services, Attribytes grants to You a limited, non-exclusive, non-transferable, non-sublicensable license to use, copy, distribute and display all reports published using the Services (“Attribytes Reports”) solely for Customer’s or your own benefit, whether such reports are custom reports prepared by Customer or You or are reports based on templates by Attribytes.

1.3. Conditions to Use
Your rights to use the Services and the Licenses granted in these Terms are subject the following:

  • You will not enable any third party to copy, distribute, display or retain Attribytes Reports without the advance, written consent of Attribytes;
  • You will not create reports that are the substantially similar to or derivative works of the Attribytes Reports;
  • You will not attempt to access the Services by any means other than your login information;
  • You will not use the Services in any manner that could damage, disable, overburden, or impair the Services or Attribytes’ servers, including scraping, crawling, data-mining, or using any robot, spider, or other automatic device to send queries to the Attribytes’ servers or Attribytes; and
  • You will not disrupt, modify or interfere with the Services, or associated software, hardware, or servers in any way that would cause the Services to become inoperable or otherwise incapable of being used in the full matter for which they are designed, or interfere with any other party’s use and enjoyment of the Services.

2. Supplier Data; Easy Global™ Data Pool; Marketing.
2.1. Supplier Data.
If you are a supplier entering content describing products, including photographs, marketing information, benefits information, storage specifications, nutritional information, allergens, ingredients, and product image (“Product Content”), you:

  • Will promptly update any missing, incorrect, or incomplete Product Content displayed by the Platform;
  • Will supply accurate Product Content at all times; and
  • Grant to Attribytes a non-exclusive license to use, copy, display, distribute, modify and prepare derivative works of the Product Content for the purpose of implementing and providing the Services.

2.2. Easy Global™ Data Pool.
If you are subscribing to the Attribytes’ Data Pool, you may connect to the Easy Global™ Data Pool for Product Content upload using email, manually entering the data at www.attribytes.com, or a machine-to-machine connection authorized by Attribytes.

2.3. Marketing.
You will designate Attribytes as a preferred source for Product Content for your distributors, operators, co-ops, group purchasing organizations and others.

3. Password Access
3.1. Password.
Attribytes provides access to the Services by password only. Attribytes will provide one password to You for You to access the Services and only one person at a time may access the Services using that password. Attribytes may supply additional passwords at additional cost to You under a separate agreement or as provided in the Master Agreement.

3.2. Protecting Password.
You are solely responsible for maintaining the confidentiality of your password and account, and You are solely responsible for all use of your password or account, whether authorized by You or not. Misuse of any password or the Services, as determined by Attribytes in its sole discretion, will be considered a material breach of these Terms. Attribytes cannot and will not be liable for any loss or damage arising from your failure to comply with these Terms. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

4. Payment
To the extent the Services or any portion thereof is made available for any fee or through a subscription, your access will be granted following payment of the applicable fees to Attribytes. Your account and access to the Services may be suspended in the event of non-payment of applicable fees.

5. Intellectual Property Rights
5.1. Product Content.
To the extent You own the Product Content that is supplied to Attribytes, You retain such ownership subject to the license granted to Attribytes in these Terms and the Master Agreement.

5.3. No Rights.
No right, title, or interest in or to the Services, the Attribytes Reports or any content on the Services is transferred to You, and all rights not expressly granted are reserved by the Attribytes and its licensors. Any use of the Services not expressly permitted by these Terms is a breach of these Terms, any Master Agreement governing your use of the Services, and may violate copyright, trademark, and other laws.

6. Privacy
6.1. Contact Information.
We collect certain information from You, including your name, telephone number, and email address in connection with issuing You a password (“Contact Information”). We will not share Contact Information that You provide with any third party, except:

  • We may provide information in response to any valid legal process, such as subpoenas and court orders, or to establish or exercise our legal rights or defend against legal claims;
  • We may use your Contact Information to contact You about the Services and products sold or otherwise provided by Attribytes; and
  • We may advise the Customer, with whom we have a Master Agreement and your rights to use the Services originate, of your use of the Services.

6.2. Third-Party Providers.
We use third parties to provide the necessary hardware, software, networking, storage, and related technology required to run the Platform. We are not responsible for the privacy policies of third party providers and WE DISCLAIM ALL LIABILITY ARISING FROM ANY ACTION OF ANY THIRD-PARTY PROVIDER.

6.3. Automatic Collection.
We and third parties automatically collect information from your browser when You use the Platform. This information may include your IP address, your browser type and language, access times, cookies, and the referring website address.

7. Termination.
In its sole and absolute discretion, with or without notice to you, Attribytes may suspend or terminate your access to the Services, terminate your account and/or remove and discard any Product Content provided by You, if;

  • there is a material breach of the Master Agreement applicable to your use of the Services,
  • any unauthorized access or use of the Services, or
  • any violation of these Terms.

8. No Warranties.
The services are provided “as is” with all faults, and the entire risk as to satisfactory quality, performance, accuracy, and effort is with the user of such services. except as expressly provided any the master agreement governing your use of the services, attribytes makes no warranties of any kind, whether express, implied, statutory or otherwise. attribytes specifically disclaims all implied warranties, including any warranties of merchantability, fitness for a particular purpose, title, non-infringement, warranties arising from a course of dealing or usage of trade, warranties against interference with enjoyment of information, and warranties of quality and accuracy, to the maximum extent permitted by applicable law.

9. Limitation of Liability.
To the maximum extent permitted by applicable law, in no event will attribytes be liable for any lost profits or revenues, equipment down-time, loss of data or for any indirect, special, exemplary, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and even if attribytes has been advised of the possibility of such damages. attribytes disclaims all liability of any kind of Attribytes’ licensors.

10. Indemnity.
You agree to defend, indemnify, and hold harmless Attribytes, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms or your use of the Services, any use of the Services’ content, services, and products other than as expressly authorized in these Terms or your use of any information obtained from the Services.

11. Other Terms
11.1. Notice.
You agree that Attribytes can provide You notice by sending You electronic notices to the e-mail address that You provided to Attribytes at signup or by displaying the notice on Attribytes.com. You agree that all notices, agreements, disclosures, and other communications that we provide to You electronically satisfy any legal requirement that such communications be in writing.

11.2. Independent Contractors.
The relationship between You and Attribytes created by these Terms is that of independent contractors. Nothing contained in this Agreement will be construed as constituting a joint venture, partnership or agency between You and Attribytes. Except as permitted in these Terms, You do not acquire any right or benefit by reason of anything contained in these Terms or use of the Services.

11.3. No Waiver or Amendment.
Any amendment to or waiver of these Terms must be in writing signed by both parties and expressly state that it is amending or waiving these Terms. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of that provision on any other occasion.

11.4. Severability.
To the maximum extent permitted by applicable law, if any provision of these Terms is held by a court to be illegal, invalid or unenforceable, that provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law and the legality, validity and enforceability of the remaining provisions of these Terms will not be affected and those provisions will remain in full force and effect.

11.5. Force Majeure.
Neither party will be deemed in default of any provision of these Terms to the extent that its performance is delayed or prevented by any event reasonably beyond the control of such party, including without limitation, war, hostilities, revolution, riot, civil commotion or embargo; national emergency; strike or lockout; unavailability of supplies; loss or impairment of hosting, network or other third-party service; epidemic, fire, flood, earthquake, force of nature; explosion; any Act of God; or any law, regulatory requirement, or other act or order of any court, government or governmental agency.

11.6. Governing Law.
This Agreement will be governed in all respects by the laws of State of Arizona, without regard to conflicts of laws principles or the United Nations Convention on the International Sale of Goods. The parties agree that for any dispute, controversy or claim arising out of or in connection with these Terms, venue and personal jurisdiction will be in the federal, state or local court with competent jurisdiction located in Maricopa County, Arizona. THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, AND WAIVE ALL OBJECTIONS TO FORUM IN, THE COURTS IN MARICOPA COUNTY, ARIZONA The prevailing party, as determined by the court, will be awarded reasonable costs and attorney’s fees.

11.7. Entire Agreement.
These Terms, and, if signed by Customer, the Master Agreement, and any other documents referenced in the Master Agreement, constitute the entire agreement between You and Attribytes regarding the use of the Services and supersede all prior or contemporaneous agreements between the parties with respect to the subject matter of these Terms. To the extent any terms and conditions of these Terms conflict with the terms and conditions of the Master Agreement and any other documents referenced in the Master Agreement, the terms of the Master Agreement will control.

Supplier Terms of Use for Easy Global Data Pool

Attribytes has established a GS1 certified data pool under the name Easy Global™ Data Pool which meets GS1 standards and is authorized and capable of exchanging supplier data describing its products (“Product Content”) and Supplier contact information on the Global Data Synchronization Network (“GDSN”). The Easy Global™ Data Pool may be used in conjunction with Attribytes’ web-based collaboration platform (the “Platform”).

These Supplier Terms of Use for the Easy Global™ Data Pool (“Terms”) are binding You, your company and Attribytes, Inc. (“Attribytes”).

Attribytes may change these Terms at any time, by modifying, adding new Terms, or removing existing Terms. The most current version of these Supplier Terms of Use can be accessed at www.attribytes.com, however, Attribytes will provide You notice of an update to these Terms each and every time there is a material change to the Terms. By continuing to access the Easy Global™ Data Pool, You accept any changes to the Terms.

  1. License to Attribytes Easy Global™ Data Pool
    1. Attribytes grants to You a non-exclusive, non-transferable, non-sublicensable license to use the Easy Global™ Data Pool.
    2. You may connect to the Easy Global™ Data Pool for Product Content upload using email, manually entering the data at attribytes.com, or a machine-to-machine connection authorized by Attribytes, however You may not attempt to access the Easy Global™ Data Pool by any other means. In particular, You are prohibited from scraping, crawling, data-mining, or using any robot, spider, or other automatic device to send queries to Attribytes’ servers or the Easy Global™ Data Pool. You may not use Attribytes to compile data or images for use by any commercial entity.
    3. You agree not to disassemble, decompile or otherwise reverse engineer any part of the Easy Global™ Data Pool or to allow or assist any third party to do so.
    4. You agree not to disrupt, modify or interfere with the Easy Global™ Data Pool or its associated software, hardware, or servers in any way that would cause the Easy Global™ Data Pool to become inoperable or otherwise incapable of being used in the full matter for which it was designed. You agree not to impede or interfere with others’ use of the Easy Global™ Data Pool. You further agree not to alter or tamper with any information or materials on or associated with the Easy Global™ Data Pool.
  1. Supplier Data
    1. You shall promptly update any missing, incorrect, or incomplete Product Content displayed by the Easy Global™ Data Pool.
    2. You shall at all times supply accurate Product Content.
    3. You hereby grant to Attribytes a non-exclusive, non-transferable, non-sublicensable license to use, copy, display, distribute, modify and prepare derivative works of the Product Content for the purpose of implementing the Easy Global™ Data Pool and the Attribytes Platform.
  1. Marketing

You will inform your distributors and brokers that you use the Easy Global™ Data Pool.

  1. Password Access
    1. Access to the Easy Global™ Data Pool is permitted by password only. Attribytes will provide one (1) password to You for you to access the Easy Global™ Data Pool and only one person at a time may access the Easy Global™ Data Pool using that password. Attribytes may supply additional passwords at additional cost to You under a separate agreement.
    2. You shall be responsible for the use of the password(s). Misuse of any password or the Easy Global™ Data Pool, as determined by Attribytes in its sole discretion, shall be considered a material breach of these Terms.
    3. Any unauthorized use of the Easy Global™ Data Pool accessed with Your password by any third party is subject to these Terms as though You were using the Account.
  1. Intellectual Property Rights
    1. To the extent You own the Product Content that is supplied to Attribytes, you retain such ownership subject to the license granted in the Supplier Data section above.
    2. Attribytes is the sole owner of the Easy Global™ Data Pool, the Attribytes Reports published using the Easy Global™ Data Pool, and all intellectual property rights therein.
    3. Certain software components, each of which has its own copyright and its own applicable license conditions (“Third Party Software”), may be used by Attribytes under license from the third party in order to provide the Easy Global™ Data Pool. You acquire no rights to such Third Party Software other than those granted herein that are necessary to provide the Easy Global™ Data Pool. NO REPRESENTATIONS, WARRANTIES OR OTHER COMMITMENTS OF ANY KIND ARE MADE BY ATTRIBYTES REGARDING SUCH THIRD PARTY SOFTWARE.
  1. Confidentiality

You are entirely responsible for maintaining the confidentiality of your password(s) and for any and all activity that occurs under your passwords(s), whether authorized by You or not. You agree to notify Attribytes immediately of any unauthorized use of your password, or any other breach of security.

  1. Privacy
    1. We collect certain information from the Supplier Engagement Profile, including your name, telephone number, and email address, (“Contact Information”). We will not share Contact Information you provide with any third party, except:
      1. We may provide information in response to any valid legal process, such as subpoenas and court orders, or to establish or exercise its legal rights or defend against legal claims.
      2. We may use your Contact Information to contact you about the Easy Global™ Data Pool and products sold or otherwise provided by Attribytes.
    2. We use third parties to provide the necessary hardware, software, networking, storage, and related technology required to run the Easy Global™ Data Pool. We are not responsible for the privacy policies of third party providers and WE DISCLAIM ALL LIABILITY ARISING FROM ANY ACTION OF ANY THIRD-PARTY PROVIDER.
    3. We and third parties automatically collect information from your browser when you use the Easy Global™ Data Pool. This information may include your IP address, your browser type and language, access times, cookies, and the referring website address.
  1. Termination
    1. Attribytes may suspend Your access to the Easy Global™ Data Pool without notice to you if Attribytes, in its sole discretion, believes You are in material breach of these Terms.
    2. Attribytes may terminate your access to the Easy Global™ Data Pool if you are in material breach of these Terms and You fail to cure such breach within thirty (30) days following receipt of written notice thereof.
  1. No Warranties; Limitation of Liability.
    1. The Easy Global™ Data Pool is provided “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ATTRIBYTES DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES TO YOU OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
    2. To the maximum extent permitted by applicable law in no event will Attribytes be liable, whether in contract, tort (including negligence), strict liability or otherwise, for any indirect, special, punitive, exemplary, incidental or consequential damages in connection with these Terms or use of the Easy Global™ Data Pool including, without limitation, lost business or lost profits, whether foreseeable or not, even if the Attribytes has been advised of the possibility of such damages.
  1. Indemnity

Each party will indemnify, defend, and hold the other party and its officers, directors, employees, shareholders, agents, affiliates, partners and suppliers harmless from and against all third-party claims, liabilities, damages, debts, losses, settlements, costs and expenses (including reasonable attorneys’ fees and expenses) arising out of the indemnifying party’s breach of this Agreement, except to the extent arising out of the negligence, breach of contract or violation of law of the indemnified party.

  1. Other Terms
    1. You agree that Attribytes can provide You notice by sending You electronic notices to the e-mail address that You provided to Attribytes at signup or by displaying the notice on Attribytes.com. You agree that all notices, agreements, disclosures, and other communications that we provide to You electronically satisfy any legal requirement that such communications be in writing.
    2. Independent Contractors. The relationship between You and Attribytes created by this Agreement shall be that of independent contractors. Nothing contained in this Agreement shall be construed as constituting a joint venture, partnership or agency between You and Attribytes. Except as permitted in these Terms, You do not acquire any right or benefit by reason of anything contained in these Terms or use of the Easy Global™ Data Pool.
    3. None of the terms of these Terms will be deemed to be waived or modified except by an express Agreement in writing signed by both parties. The failure of Attribytes in enforcing any of its rights under these Terms will not be deemed a continuing waiver or modification by Attribytes of any of its rights under these Terms.
    4. To the maximum extent permitted by applicable law, if any provision of these Terms is held by a court to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of these Terms will not be affected and those provisions will remain in full force and effect.
    5. Force Majeure. Neither party will be deemed in default of any provision of these Terms to the extent that its performance is delayed or prevented by any event reasonably beyond the control of such party, including without limitation, war, hostilities, revolution, riot, civil commotion or embargo; national emergency; strike or lockout; unavailability of supplies; loss or impairment of hosting, network or other third-party service; epidemic, fire, flood, earthquake, force of nature; explosion; any Act of God; or any law, regulatory requirement, or other act or order of any court, government or governmental agency.
    6. Governing Law. This Agreement shall be governed in all respects by the laws of the United States and the State of Delaware, except for conflict of laws provisions. The parties agree that for any dispute, controversy or claim arising out of or in connection with these Terms, venue and personal jurisdiction shall be (1) if brought by You, in the federal, state or local court with competent jurisdiction located in Maricopa County, Arizona and (2) if brought by Attribytes, in the federal, state or local court with competent jurisdiction located in Tarrant County, Texas. The prevailing party shall be awarded reasonable costs and attorney’s fees.
    7. Entire Agreement. These Terms, and if signed by You, the License Agreement and any other documents referenced in the License Agreement, constitute the entire agreement between You and Attribytes and supersedes all prior discussions and agreements between the parties with respect to the subject matter hereof. To the extent any terms and conditions of these Terms conflict with the terms and conditions of the License Agreement and any other documents referenced in the License Agreement, the terms of the License Agreement shall control