This Product Data Agreement is entered into by and between Chipmonk Technology, Inc, a California corporation (“Chipmonk”) and the company identified in the “Company name” field on Chipmonk’s online registration page referred to throughout the rest of this agreement as “Company”.
Chipmonk is an electronic component inventory search engine freely available for public use by professional buyers, engineers, researchers, makers as well as hobbyists and hackers alike. Its website is ChipEZ.com which contains authorized and independent distributor’s inventory data as well as component manufacturer’s data.1. Inventory Data. 1.1 Company will deliver the following inventory data types in .csv format:
Other data types and formats may be acceptable. Company will provide updates to the inventory data over the Term to keep it accurate and complete. Updates may be provided via api, email attachment or ftp server.
1.2 Independent Distributors inventory data shall be in-stock.
1.3 Authorized inventory is defined as a distributor identified as authorized on component manufacturer’s website.
1.3 Display on Chipmonk Network. Company hereby grants to Chipmonk a non-exclusive, worldwide license, effective throughout the Term of this Agreement, to use, display, distribute, perform, reformat, edit and publish the Product Data on or in connection with Chipmonk’s search and aggregation services, which is currently accessible via the Internet and via any other means of distribution selected by Chipmonk (collectively, the “Chipmonk Network”) in the future. Chipmonk may format and display the Product Data within the Network in any manner and in any location it chooses. Chipmonk may sublicense any of the foregoing rights for the purpose of making the Chipmonk Network publicly available (such as sublicenses to hosting services and contractors).
1.4 Technical Support. Company will provide commercially reasonable maintenance and technical support for all Product Data. Company’s obligation to provide support under this Agreement will extend solely to requests for support received from Chipmonk. Company will have no obligation under this Agreement to furnish any assistance, information or documentation with respect to any Product Data to any end user of the Chipmonk Network.
1.5 Removal. Chipmonk reserves the right not to make available, or to remove or disable access to, the Product Data without prior notice and without liability to Company. Within a commercially reasonable period of time after Chipmonk’s receipt of a written request from Company that Chipmonk remove Product Data limited to Company marks (if company is a product distributor), Company part number, product pricing information, available product quantities, URLs to pages where products are available for purchase and images, from the Chipmonk Network, Chipmonk will remove or disable access to the limited Product Data identified in the request; provided, however, that Chipmonk will have no obligation to remove any cached copies of Product Data retained by third parties.
2. Financial Terms.
2.1 Fees. Chipmonk reserves the right at any time to charge fees for access to or use of certain products or services made available through the Chipmonk Network. In no event will Company be charged for such access or use unless Chipmonk obtains Company’s prior agreement to pay such fees. Details regarding the products or services Company will receive in exchange for the payment of fees, as well as any additional payment terms and conditions that apply, will be disclosed to Company prior to Company’s agreement to pay such fees (which agreement may be in the form of an exchange of e-mails between Company and Chipmonk confirming their mutual agreement). All such terms shall be deemed to be a part of (and are hereby incorporated by reference into) this Agreement.
2.2 Reports. Chipmonk will deliver to Company monthly invoices for fees, if any, owed by Company to Chipmonk under Section 2.1, together with reasonably-detailed information regarding Chipmonk’s calculation of such amounts. Company will pay each such invoice, in United States dollars, within thirty (30) calendar days after receipt thereof.
2.3 Taxes. Company will be responsible for payment of all taxes (other than taxes based on Chipmonk’s income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of fees to Chipmonk under this Agreement. Company will make all payments of fees to Chipmonk free and clear of, and without reduction for, any withholding taxes.
3. Term. The term of this Agreement (the “Term”) will begin on the date it is accepted by Company (as reflected in Chipmonk’s records) and continue for a period of six (6) months. Thereafter, the Term will be automatically extended on a monthly basis unless a party hereto provides notice of its intent not to renew no later than thirty (30) days prior to the commencement of the next renewal term. Notwithstanding the foregoing, (a) either party may terminate this Agreement at any time if the other party commits a material breach of its obligations hereunder and does not cure such breach within fifteen (15) days after receiving written notice describing the breach and (b) Company may terminate this Agreement upon at least five (5) days’ prior written notice to Chipmonk if Chipmonk changes the fees payable by Company under Section 2.1. The provisions of Sections 4.3 and 5 through 8 will survive any termination of this Agreement, as will Company’s obligation to pay fees to Chipmonk under Section 2 for any products or services for which Company has agreed to pay fees under Section 2.1 and that have been provided by Chipmonk prior to the effective date of termination. Neither party will be liable to the other for damages of any sort resulting solely from terminating this Agreement in accordance with its terms. Chipmonk also may modify terms of this Agreement at any time without liability; provided, however, that Chipmonk will provide Company with prior notice of any such modification (at the email address on file with Chipmonk) and Company will have the right to terminate this Agreement upon receipt of any such notice. Company’s transmission of Product Data to Chipmonk after notice that the terms of this Agreement have changed constitutes Company’s acceptance of the new terms of the Agreement.
4. Intellectual Property.
4.1 Company Marks. In addition to the licenses granted in Section 2, Company also hereby grants to Chipmonk a non-exclusive, worldwide, royalty-free license, effective throughout the Term, to use, display, distribute, perform and publish on the Chipmonk Network, as part of the Product Data or within promotions for the Product Data, any trademarks, trade names, service marks and logos that may be delivered by Company to Chipmonk for such purposes (the “Company Marks”). Any use of Company Marks by Chipmonk must comply with any reasonable usage guidelines communicated by Company to Chipmonk from time to time.
4.2 Warranty. Company represents and warrants that: (a) the Product Data shall be accurate; and (b) the Product Data and Company Marks (and Chipmonk’s use thereof as authorized under this Agreement) shall not violate the rights of any third party, including, but not limited to, intellectual property or other proprietary rights. EXCEPT FOR THE FOREGOING WARRANTIES, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4.3 Ownership. Except for the limited licenses granted herein, Company reserves all rights in and to the Product Data and Company Marks. Chipmonk reserves all right, title and interest in and to the content of the Chipmonk Network that is not Product Data, including any content developed by Chipmonk to integrate the Product Data and Company Marks into the Chipmonk Network. There are no implied licenses.
5. Indemnification. Company shall indemnify, defend and hold harmless Chipmonk, its officers, directors, agents and employees from and against any and all losses, costs, liabilities or expenses (including reasonable attorneys’ fees) that such parties may suffer, incur or be subjected to by reason of any legal action, proceeding, arbitration or other claim by a third party (“Claim”), whether commenced or threatened, if such Claim arises out of or relates to Chipmonk’s use, display, performance or publication of the Product Data or Company Marks on the Chipmonk Network as permitted under this Agreement, including without limitation any claim attributable to Company’s breach of the representations, warranties and covenants contained in Section 4.2. Chipmonk shall notify Company promptly of any Claim for which Company is responsible hereunder and shall reasonably cooperate with Company to facilitate defense of any such Claim; provided that Chipmonk’s failure to notify Company shall not diminish Company’s obligations under this Section except to the extent that Company is materially prejudiced as a result of such failure. Chipmonk shall at all times have the option to participate in any such Claim through counsel of its own selection at its own expense.
6. Limitation of Liability. EXCEPT FOR LIABILITY UNDER SECTION 7, NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Confidentiality. Each party will: (a) maintain the confidentiality of the other party’s Confidential Information using the same degree of care that it uses in safeguarding its own confidential information, but in no event less than a reasonable degree of care; (b) use the other party’s Confidential Information only in connection with the performance of its obligations under this Agreement; and (c) disclose the other party’s Confidential Information only to such of its officers, employees, and agents as have a need to know such Confidential Information in connection with the performance of its obligations under this Agreement. As used herein, the term “Confidential Information” shall mean: (a) pricing and reporting information provided by Chipmonk under Section 2.1 and Section 2.2; (b) any information disclosed in tangible form by a party to the other in connection with this Agreement that is conspicuously designated as “Confidential”; and (c) any information disclosed orally or visually by a party to the other in connection with this Agreement that is identified by at the time of disclosure as confidential, in each case excluding any information that: (i) has been published or made available to the general public by the disclosing party or is otherwise in the public domain through no fault of the receiving party; (ii) is properly within the legitimate possession of the receiving party prior to its disclosure hereunder and without any obligation of confidence; (iii) is lawfully received by the receiving party from a third party having rights in such confidential information when such third party was not restricted from disclosing the information to the receiving party; or (iv) is independently developed by the receiving party without reference to, or use of, the disclosing party’s Confidential Information. The prohibition on disclosure of Confidential Information contained in this Section 7 shall not apply to the extent that such disclosure is: (a) approved in writing by the disclosing party; (b) necessary for the receiving party to enforce its rights under this Agreement in connection with a legal proceeding; or (c) required by law or by the order of a court of similar judicial or administrative body, provided that the receiving party notifies the disclosing party of such required disclosure promptly and in writing and cooperates with the disclosing party, at the disclosing party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. In addition, neither party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law, (b) pursuant to a mutually agreeable press release or (c) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed signs a confidentiality agreement requiring such third party to maintain the confidentiality of the terms of this Agreement).
8. General Provisions. This Agreement shall be governed by the laws of the State of California as applied to agreements made, entered into, and performed entirely in California by California residents. All lawsuits arising from or relating to this Agreement shall be brought in the Federal or State courts located in Los Angeles County, California, and each party hereby irrevocably submits to the exclusive personal jurisdiction of such courts for such purpose. The failure of either party to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties agree that the court should endeavor to give effect to the intentions of the parties as reflected in the provision, and that the other provisions of this Agreement shall remain in full force and effect. This Agreement shall be construed without regard to any presumption or rule requiring construction against the party causing such instrument or any portion thereof to be drafted. Other than in connection with a reorganization, merger or sale of all or substantially all of its assets, neither party may assign its rights or obligations under this Agreement to any third party without the prior written consent of the other party and any such assignment shall be null and void. Subject to the foregoing, this Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements proposals, negotiations, conversations, representations, warranties, or discussions between the parties related to such subject matter, whether oral, written, electronic, or in other form. All notices and approvals under this Agreement must be delivered (a) in the case of notices and approvals by Chipmonk, to the email address on file with Chipmonk and (b) in the case of notices and approvals by Company, to contact@ChipEZ.com and will be effective upon receipt (or three (3) business days after being sent, whichever occurs sooner). Either party may change its address by giving timely notice of the new address (or email address) to the other party and identifying in such notice the date on which such change is effective.PLEASE READ THIS PRODUCT DATA AGREEMENT CAREFEFULLY BEFORE ACCEPTING THIS AGREEMENT. BY SIGNING THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT YOU HAVE BEEN AUTHORIZED TO AGREE TO THE TERMS OF THIS AGREEMENT ON THE COMPANY’S BEHALF.