Master Services Agreement

This Feedvisor Master Services Agreement (“MSA” or “Agreement”) applies to your use of the Service (as defined below) provided by Feedvisor, Inc. (“Feedvisor”, “us”, “we” or “our”). By signing this MSA or a Feedvisor Service Order Form which references this MSA (“Order Form”) you agree to be bound by the terms of this MSA (“you” or “your” means the legal entity identified below or in the Order Form). You represent and warrant to Feedvisor that you have read this MSA, understand it, and that you have full legal authority to bind to this MSA the legal entity identified below or in the Order Form. You represent and warrant to Feedvisor that you are at least 18 years of age. Each of Feedvisor and you, a “party” and, collectively, the “parties.”

Subject to your compliance with this MSA and the Order Form (if applicable) and payment of all applicable fees, Feedvisor hereby grants you, and you hereby accept, solely during the Term, a limited, non-exclusive, non-transferable, non-sub-licensable, and fully revocable right and license to access and use the Service for your internal purposes only.

In order to use the Service, you have to create an account (“Account”). You must not allow anyone other than yourself or an authorized employee or agent acting on your behalf (each, an “End User”) to access and use your Account. You acknowledge and agree: (i) to provide accurate and complete Account and login information; (ii) to keep, and ensure that End Users keep all Account login details and passwords secure at all times; (iii) you remain solely responsible and liable for the activity that occurs in connection with your Account, (iv) that the Account login details may only be used by End Users; and (v) to promptly notify Feedvisor in writing if you become aware of any unauthorized access or use of your Account or the Service. You may use the Service tools to disable and enable certain Service features or activities at any time.

6.1. Interaction with E-Commerce Channels: The Service enables you to link to and interact with e-commerce channels, and to access, use, and transmit content and Data to and from e-commerce channels (“e-commerce channels Materials”). In order to: (i) interact with an e-commerce channel, you may need to have, and actually be signed-in to, an active e-commerce channel account; (ii) fully utilize the Service you may need to obtain a specific e-commerce channel user status or account-type (“Status”). You must grant us authorization to access your e-commerce channel account in accordance with the terms and conditions prescribed by the applicable e-commerce channel and you will need to provide the e-commerce channel with our development account identifier and any other information requested by the e-commerce channel to enable us to access your account You are solely responsible for registering your e-commerce channel account and obtaining any Status you need to fully utilize the Service, as well as the payment of any e-commerce channel fees in connection with the foregoing. You acknowledge and agree to review and be bound by the terms of use and privacy policy of any e-commerce channel, and agree to hold us harmless, and expressly release us, from any and all liability arising from your linking to and interaction with an e-commerce channel. You must provide all equipment and licenses necessary to access and use the Internet, and pay all fees associated with such access and use. You acknowledge that failure to comply any of the foregoing requirements may restrict us from accessing your e-commerce channel account and may prevent you from being able to link your e-commerce channel account to the Service.

6.2. Data: The Service may also enable you to upload, export or transmit your Data to e-commerce channels. We do not own or control the e-commerce channels and we do not have any control over, and assume no responsibility for, the content, privacy policies or practices of any e-commerce channel. Accordingly, to the extent the Service and/or any part thereof is dependent on the corresponding availability of any e-commerce channel, Feedvisor shall not be liable in the event (i) you are not compliant with the terms and conditions related to your use of the e-commerce channel; and (ii) changes in and/or by the e-commerce channels cause the unavailability of the Service and/or any part thereof.

6.3. No Representations or Warranties: We do not make any representation or warranty regarding the number of goods or services (“Products”) that you will sell, or any outcomes you may achieve, by using the Service. You remain solely responsible and liable for your Products, Product warranties, and providing any Product maintenance and support to your customers.

8.1. Package Plans: In consideration for the Service, you will be required to pay Feedvisor various fees which may include a Base Fee, a Monthly Variable Fee and a Services Fee, if applicable, as set forth in the Order Form (“Fees”). You will pay all Fees specified in the Order Form. Unless expressly set forth otherwise herein or in the Order Form, the Fees are charged based on Services purchased and not on actual usage. The “Base Fee” is a fixed payment payable to Feedvisor on a periodic basis as agreed upon in the Order Form, and the “Monthly Variable Fee” means the amount payable to Feedvisor based on a percentage of the Aggregate Managed Sales and/or the Monthly Media Spend, as applicable, in each calendar month. The “Services Fee” means the amount payable for consulting services, at hourly rates or a fixed project rate, as set forth in the Order Form.

(i) “Aggregate Managed Sales” means (i) the aggregated total of all amounts payable by your customers for the sale of Products with respect to which the Service is being utilized (e.g., the “Reprice” option in the Service is turned on with respect to a Product) in all your Accounts in any e-commerce channel during a calendar month with respect to which Feedvisor’s invoice was issued, less (ii) return credits and refunds associated with a particular Managed Product sold to your customers during a calendar month with respect to which Feedvisor’s invoice was issued; provided that such return credits and refunds are submitted to Feedvisor by you by no later than the 8th day of the successive calendar month (the “Cut-off Date”). Feedvisor reserves its right to bring forward the Cut-off Date by up to 2 days.

(ii) “Monthly Media Spend” means the amount you spend each month on advertising on Amazon calculated on a “cost per click” basis, namely, the price you pay for each click in your pay-per-click marketing campaigns according to which you pay a fee to Amazon each time one of your advertisements is clicked.

At its discretion, Feedvisor may offer different Service subscription plans to choose from (each a “Plan”). The details of all available Plans, including but not limited to, the applicable Base Fee, the Monthly Variable Fee and the Services Fee, are set forth in the Order Form forwarded to you separately or on the Site. The Plans may be amended from time to time. Your access to and use of the Service under any Plan is subject to your payment in full of the relevant fee applicable to the Plan you choose, as set forth in the Order Form.

8.2. Payments:

(i) We will invoice you the Fees and any other applicable charges and costs according to the schedule and payments terms detailed in the Order Form. In no way derogating from the foregoing, you shall be afforded a period of seven (7) days from the date of the invoice (the “Dispute Period”) to dispute the Monthly Variable Fee invoiced therein by providing Feedvisor, within the Dispute Period, with written records in support thereof. Feedvisor will consider your dispute and any supporting documentation provided by you, and in the event Feedvisor, in its sole discretion, accepts your dispute, in whole or in part, it shall re-issue the applicable invoice with the adjusted Monthly Variable Fee. This dispute mechanism shall not relieve you from settling any undisputed portion of the Monthly Variable Fee when due. The Fees may be payable by wire transfer, through PayPal, Credit Card or other payment methods acceptable to Feedvisor as specified in the Order Form. You hereby acknowledge and agree that no dispute arising or relating to the Monthly Variable Fees may be raised following the applicable Dispute Period.

(ii) If we use the tools, software or services of third party payment service providers, such as PayPal or credit card companies, to complete your purchase of a Plan and/or any other products or services via the Site, you acknowledge and agree to (a) review and be bound by the terms of use and privacy policy of any such third party payment service provider; and (b) hold us harmless, and expressly release us, from any and all liability arising from your interaction with any such third party payment service provider.

(iii) All Fees and payments: (a) shall be paid in US Dollars; and (b) are non-refundable, non-cancellable and non-contingent. You may not set-off any amounts owing to you against any payments owing to Feedvisor hereunder.

(iv) Payments which are not received when due shall bear interest at the lesser of the maximum amount chargeable by law or one and a half percent (1.½%) per month commencing with the date payment was due.

(v) Feedvisor reserves the right to change the Fee at any time upon thirty (30) days prior written notice to you. If we have changed the Fee then you may terminate this MSA in accordance with Section 9.2(ii) below. Your continued receipt and use of the Service following the change in the Fee shall conclusively demonstrate your acceptance of such change.

(vi) In the event you fail to timely pay any Fees or charges when due, Feedvisor may, in its discretion, suspend or terminate the Service and/or any part or portion thereof in accordance with Section 9.2.

8.3 Taxes and Duties: Except for taxes based on Feedvisor’s net income, you are liable and responsible for paying all federal, state and local sales, foreign withholding, value added, use, property, excise, service and other taxes, and all duties and customs fees relating to your receipt or use of the Service or sale of the Products, whether or not Feedvisor invoices you for such taxes, duties or customs fees.

10.1. Each party agrees to hold the other’s Confidential Information in strict confidence and protect it from unauthorized dissemination and use with the same degree of care that each uses to protect its own like information, but not less than a reasonable degree of care. Each party shall limit the use and access to the others’ Confidential Information to those of its employees and contractors whose use or access is necessary to effect the purpose of the Order Form or this MSA and who are under written contractual non-disclosure and non-use obligations that are no less restrictive or protective than the terms of this Section 10. Neither party will use the others’ Confidential Information for purposes other than those necessary or appropriate to exercise rights or fulfill obligations under the Order Form or this MSA. Each party shall be liable for any unauthorized disclosure or use by its employees and contractors of the others’ Confidential Information.

10.2. “Confidential Information” means all information and data furnished by a party to the other or to which a party has been exposed in performance of the Order Form or this MSA, which information and data have been marked or otherwise specifically identified as confidential or proprietary, or can by their nature reasonably be presumed to be confidential or proprietary including but not limited to personal information that is protected by law, in any form, including but not limited to inventions, discoveries, ideas, processes, products, designs, technology, specifications, software, equipment, trade secrets, pricing information, customer and supplier information, third party confidential information and all other information related to a party’s business. Confidential Information shall not include information which is: (i) publicly known and/or made generally available in the public domain, either prior to or after the time of disclosure by the disclosing party, through no wrongful act of the receiving party, (ii) already known by the receiving party at the time of disclosure through no wrongful act of the receiving party, (iii) rightfully obtained by the receiving party from a third party free of any obligation to such third party to keep it confidential, or (iv) independently developed by the receiving party without use of or reference to the disclosing party’s disclosure. For clarification, the features and functionality of the Service, the Proprietary Rights, Data Aggregations, Feedback, applicable Fees, and the terms of the Order Form and this MSA shall be considered as Feedvisor’s Confidential Information, and Anonymous Information as defined in the Privacy Policy shall not be considered to be your Confidential Information.

10.3. In the event that a party shall be required by legal or regulatory process to disclose Confidential Information of the other, it shall promptly (if legally permitted to do so) notify the disclosing party, reasonably cooperate therewith in seeking to quash such request or obtain an appropriate protective order, and only disclose such disclosing party’s Confidential Information to the extent required.

10.4. Each party shall advise the other promptly in the event it learns or has reason to believe that any person who has had access to the other’s Confidential Information has violated or intends to violate the terms hereof and reasonably cooperate with the other in seeking injunctive or other equitable relief. The obligations of confidentiality and non-use herein shall survive for the Term and for a period of five (5) years thereafter; provided, however, that with respect to Confidential Information that constitutes a trade secret, the obligations of confidentiality and non-use herein shall survive for so long as such Confidential Information constitutes a trade secret under applicable law, but in no event less than the Term and for a period of five (5) years thereafter; and similarly for Confidential Information including personal information that is protected by law, the obligations of confidentiality and non-use herein shall survive for so long as the information remains protected by law, but in no event less than the Term and for a period of five (5) years thereafter.

Feedvisor shall not be held responsible or liable for any actions taken by you, either wholly or in part, based on the Data or information provided to Feedvisor by you or any third party, or for any loss, damage, expense or injury resulting from any transactions conducted by you with any third party as a result, by way of or through the use of the Service. THE SERVICE, INCLUDING WITHOUT LIMITATION, ALL SOFTWARE, CONTENT, REPORTS AND INFORMATION PROVIDED AS PART OF THE SERVICE, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. You assume all responsibility for the selection of the Service to achieve your intended results. In addition, since Feedvisor cannot verify all Data or information provided by you or other third parties, and errors in gathering or reporting such Data or information may occur, Feedvisor does not represent or warrant that the Service is always accurate, complete or current and shall not be liable for or responsible for decisions taken by you as a result thereof FEEDVISOR HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FEEDVISOR DOES NOT WARRANT THAT THE SERVICE WILL BE COMPLETE, ACCURATE, SECURE, UNINTERRUPTED, ERROR FREE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT DEFECTS WILL BE CORRECTED. FEEDVISOR DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY SOFTWARE, CONTENT, REPORTS, INFORMATION, OR RESULTS THAT YOU OBTAIN THROUGH THE SERVICE. YOUR USE OF AND RELIANCE UPON THE SERVICE AND YOUR DATA AND ANY E-COMMERCE CHANNEL MATERIALS IS ENTIRELY AT YOUR SOLE DISCRETION AND RISK, AND FEEDVISOR SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER TO YOU IN CONNECTION WITH ANY OF THE FOREGOING. YOU AGREE THAT WE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES THAT MAY RESULT FROM THIRD PARTY’S HARDWARE, SOFTWARE, COMMUNICATIONS SERVICES OR MATERIALS, OR FROM TECHNICAL PROBLEMS, INCLUDING WITHOUT LIMITATION IN CONNECTION WITH, THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION, DELAYS OR INTERRUPTIONS OR OVERLOAD OF OUR OR OTHER SERVERS) ANY TELECOMMUNICATIONS, INTERNET PROVIDERS OR OTHER THIRD PARTY SERVICE PROVIDERS. Applicable law may not allow the exclusion of certain warranties, so to that extent the above exclusions may not apply.

You agree to defend, indemnify and hold harmless Feedvisor and our affiliates and our respective officers, directors, agents, consultants and employees (each an “Indemnified Party”) from any claims, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Claims”) by you and /or any third party arising from: (i) your or your End Users’ use of the Service; (ii) your breach of the Order Form or this MSA; (iii) your sale and distribution of the Products; or (iv) your failure to pay any taxes, duties or assessments due hereunder. An Indemnified Party need not seek recovery from a third party or otherwise mitigate its losses in order to make a claim under this Section 14. We have the right to participate in the defense of a Claim and in selecting counsel therefore. You shall not, without first obtaining our prior written consent, settle any Claim in any manner that (a) restricts or limits our ability to deliver the Service; or (b) involves a remedy relating to admission of liability by, injunctive relief against, or other affirmative obligations by an Indemnified Party without the Indemnified Party’s consent.

From time to time we may offer you additional or ancillary features or services (“Additional Services”) that may be subject to additional or different terms of service and/or may be rendered by third party service providers (“Third Party Providers”). Any Additional Services will form part of the Service. Your use of such Additional Services shall be deemed your consent to such additional terms of service, including without limitation the Third Party Providers’ terms of service. We and/or the Third Party Providers may need you to provide Data to enable us and/or the Third Party Providers to provide you with the Additional Services.

Each party shall comply with all applicable laws relating in any way to its performance of its obligations under the Order Form and this MSA. You agree to comply fully with all applicable export laws and regulations as well as any data privacy laws in any jurisdiction to ensure that neither the Service nor any technical data related thereto are shared, exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.

In the event of any dispute, claim or litigation between us relating to this MSA or an Order Form, if we prevail, we shall be entitled to reimbursement of all of our costs and expenses, including reasonable attorneys’ fees, incurred in connection with such dispute, claim or litigation, including any appeal therefrom. For purposes of this Section 19, the determination of whether we are the prevailing party shall be decided by the court of competent jurisdiction or independent party (i.e., mediator or arbitrator) that resolves such dispute, claim or litigation.

The Order Form, this MSA, the Site Terms of Use, and the Privacy Policy represent the complete agreement concerning the Service between you and Feedvisor and supersede all prior agreements and representations related to the subject matter hereof. Any amendments must be in writing and executed by the parties. Section headings are provided for convenience only and have no substantive effect on construction. Feedvisor will not be liable for any loss, damage or delay resulting from any event beyond Feedvisor’s reasonable control. Nothing in the Order Form or this MSA shall be construed to create any employment relationship, partnership, joint venture or agency relationship or other form of business association or to authorize any party to make any representation on behalf of the other party enter into any commitment or agreement binding on the other party. In the event that any provision of the Order Form or this MSA is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of the Order Form and MSA, and the application of such provision in any other circumstances, will not be affected thereby. The failure by a party to exercise any right hereunder or under the Order Form or this MSA shall not operate as a waiver of such party’s right to exercise such right or any other right in the future. The Order Form and this MSA shall be governed by the laws of the State of Delaware, USA, without reference to its conflict of laws rules. The exclusive jurisdiction and venue for all disputes under the Order Form and this MSA shall be the state and federal courts located in New Castle County, Delaware, USA, and each party hereby irrevocably consents to the jurisdiction of such courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act are excluded from the Order Form and this MSA. All proceedings shall be conducted in English. All definitions not otherwise defined in this MSA shall have the meaning ascribed to them in the Order Form. This Agreement may be executed in duplicate and either copy or both copies are considered originals.