Terms of
Use

Subject to Customer’s continued compliance with this Agreement, Rotten Grapes grants Customer a non-exclusive, non-transferable, and non-sublicensable license to access and use the Platform during the applicable subscription term solely for its internal business operations and in accordance with any user count, volume metrics, or other restrictions described in the Order.

Customer will be responsible for ensuring its users comply with this Agreement and will be liable for their acts and omissions as though they were its own. Customer is responsible for maintaining the security of its and its users’ login credentials and will be responsible for any actions taken using such credentials. Customer is responsible for ensuring it provides complete and accurate information and keeps such information up to date. Customer will be responsible for any liability or damages arising from false, fraudulent, inaccurate or incomplete information.

Customer’s subscription begins on the date of purchase (unless a different commencement date is set forth in the Order) and continues for the duration stated in the Order or selected at the time of purchase. Unless otherwise set forth in the Order, at the end of the initial term, the Order will automatically renew for consecutive renewal terms of equal length as the initial Term unless either party provides notice of non-renewal at least 14 days prior to the end of the then-current Term. Orders are non-cancellable except as expressly set forth herein.

Customer will pay all fees pursuant to the Order. Unless otherwise stated in the Order: (a) all fees are in USD; (b) Rotten Grapes will charge (or invoice, as applicable) Customer in advance for any subscription fees (monthly for month-to-month subscriptions, and annually for subscriptions of 12 months or longer); (c) if paid by invoice, all fees are due within 30 days of invoice date; and (d) late payments will incur interest at a rate of 1% per month or the maximum rate permitted by law, whichever is less (plus a late fee of $50 USD per late payment). Unless otherwise expressly set forth herein, all payments are non-refundable. Customer is responsible for paying any applicable sales, use, or similar taxes arising out of the transactions under the Order (excluding, for avoidance of doubt, any taxes on Rotten Grapes’s net income or property). In the event that any deduction or withholding is required to be made under applicable law, Customer will gross-up the amount paid so that Rotten Grapes receives the full amount that would otherwise have been due.

Pricing and fees may be based on API call volume. In such cases, initial pricing may be based on Customer’s self-reported estimated call volume. If Customer’s usage exceeds the applicable volume thresholds for the selected plan, Rotten Grapes may: (a) suspend Customer’s ability to make additional usage for the relevant payment period; (b) charge Customer additional fees as set out on the website or otherwise indicated to Customer; and/or (c) at the next renewal, automatically move Customer into the lowest price tier that accommodates Customer’s demonstrated peak volume.

Rotten Grapes may increase its pricing from time to time by posting updated prices on its website or otherwise notifying Customer. Any such increase will automatically take effect on the next subscription renewal.

Customer will not, directly or indirectly: (i) remove any trademark or copyright notices contained in the Platform; (ii) reproduce, modify, publish, distribute, transmit, disseminate, transfer, license, sell, lease, or create derivative or competing works based upon the Platform; (iii) use the Platform on behalf of third parties or allow third parties to use the Platform (including permitting use in connection with any timesharing or service bureau, outsourced or similar service to third parties); (iv) use manual or automated means to trawl, mine, scrape, frame, or mirror the Platform; (v) disassemble, decompile or reverse engineer the Platform; (vi) attempt to hack, defeat, or overcome any encryption technology or security measures regarding the Platform or Rotten Grapes’s other systems or those of any third party, or gain any unauthorized access to any systems or accounts; (vii) interfere with or disrupt the operation of the Platform or any other systems or otherwise interrupt or interfere with any other user’s use or enjoyment of the Platform; (viii) promote illegal activity or violate any applicable local, state, national or international law; (ix) post or transmit any information or data that is discriminatory, unlawful, defamatory, abusive, harassing, threatening, indecent, pornographic, obscene, fraudulent or otherwise inappropriate or infringes any intellectual property or privacy or other rights of any person; (x) send unsolicited advertisements through the Platform; (xi) impersonate any person or misrepresent its identity or affiliation; (xii) use the Platform in a way that is not for its intended purposes or that will adversely affect Rotten Grapes or reflect negatively on it or any of its goodwill, name or reputation; (xiii) provide any false or misleading information or any information that it does not have the right to provide; (xiv) publish or distribute any analysis or benchmarking of the Platform or its effectiveness; or (xv) otherwise violate any of Rotten Grapes’s published rules, policies, or guidelines.

Except as otherwise expressly stated herein, each party will retain all of its right, title and interest in and to its worldwide copyrights, patents, trade secrets, trademarks, and other intellectual property rights (“IP Rights”).

All IP Rights in and to the Platform and all Documentation and Usage Data (as defined below) are and will remain owned by Rotten Grapes or the relevant third-party owner. If Customer provides feedback, suggestions, improvements, or requests for additional functionality related to the Platform (collectively, “Feedback”), it grants Rotten Grapes an unrestricted, perpetual, irrevocable, royalty-free, worldwide license to use, reproduce, display, perform, modify, transmit, distribute and create derivative works of such Feedback in any way Rotten Grapes deems reasonable, without any attribution or accounting. This paragraph will survive any termination or expiration of this Agreement or of Customer’s account on the Platform.

“Usage Data” means anonymized or aggregated technical or usage data relating to the use and performance of the Platform (which does not include personal information). Rotten Grapes may collect, use, and disclose Usage Data to gather insights, analyze trends and market needs, create and refine models, develop and improve Rotten Grapes’s offerings, and for other legitimate purposes. For avoidance of doubt, Rotten Grapes will not disclose any Usage Data in a manner that can be used to identify Customer or any third-party entity or individual.

“Customer Materials” means any APIs, content, data, or materials submitted or connected by Customer or its users to the Platform. As between the parties, Customer retains ownership of the Customer Materials and will be responsible for the accuracy, quality, integrity and legality of Customer Materials. Customer hereby grants Rotten Grapes a worldwide, non-transferable, non-exclusive, royalty-free license to use Customer Materials to the extent reasonably required for Rotten Grapes to make the Platform and related services available to Customer. Customer is responsible for determining what data fields it chooses to have encrypted or hashed by the Platform. Customer is responsible for keeping its own records and making appropriate backups of any Customer Materials.

Rotten Grapes will not be responsible for any loss of data in its possession or control.Rotten Grapes handles personal information in accordance with Rotten Grapes’s Privacy Policy.

“Confidential Information” means any non-public information provided by one party (“Discloser”) to the other party (“Recipient”) hereunder that is either conspicuously identified as confidential or proprietary or should be reasonably understood to be confidential based on the nature of the information or circumstances of the disclosure. Without limiting the generality of the foregoing, Customer’s Confidential Information includes Customer Materials, and Rotten Grapes’s Confidential Information includes the non-public areas, features, and functionality of the Platform and any Documentation. Confidential Information does not include information that: (a) is already known to Recipient without obligation of confidentiality prior to its disclosure by Discloser; (b) is in or enters the public domain through no fault of the Recipient; (c) is or was lawfully received by Recipient from a third party without confidentiality obligations; or (d) was independently developed by Recipient without access to the Confidential Information, as established by written documentation.

Recipient will only use Confidential Information to perform its obligations or exercise its rights under this Agreement. Recipient will not disclose Confidential Information to any individuals or entities except for its and its affiliates’ officers, employees, agents, and representatives who have a need to know such Confidential Information for purposes of this Agreement and who are bound by confidentiality obligations at least as protective as those set forth herein. Recipient will maintain the Confidential Information in confidence using the same degree of care as it uses to protect its own similar information (but no less than reasonable care) and will be liable for any unauthorized use or disclosure of the Confidential Information, including by any of its personnel. The protections set forth herein will continue to apply to any Confidential Information disclosed hereunder for the greater of five years, or so long as such Confidential Information is protected as a trade secret under applicable law.

If Recipient is legally required to disclose any Confidential Information of Discloser, Recipient will, if legally permitted, provide Discloser with prompt written notice sufficient to allow it an opportunity to appear and object to such disclosure. If such objection is unsuccessful, then Recipient may produce only such Confidential Information as is required by the court order or governmental action.

At Discloser’s request after the subscription period has ended, Recipient will promptly return or destroy all Confidential Information (including any copies thereof) in its possession or control, except that Recipient may retain: (i) any copies required to be retained under applicable law, and (ii) copies in backup or archive media created in the ordinary course of business; provided in each case that the obligations of confidentiality hereunder will continue to apply to such retained copies.

Each party agrees that the other party may have no adequate remedy if there is a breach or threatened breach of these confidentiality obligations and, accordingly, that the non-breaching party will be entitled to seek injunctive or other equitable relief to prevent or remedy such a breach in addition to any legal remedies available to that party.

The Platform may contain links to websites owned or operated by third parties. Rotten Grapes does not control or endorse such parties, websites, products or services, and Rotten Grapes is not responsible for their content, nor is Rotten Grapes responsible for the accuracy or reliability of any information or data provided by Customer or any third parties, or for the performance or functionality of any Customer Materials.

CUSTOMER USES THE PLATFORM AT ITS OWN RISK AND THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Rotten Grapes AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATED TO THE PLATFORM, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, OR THAT USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE OR THE OUTPUT WILL BE COMPLETE OR ACCURATE. Rotten Grapes IS NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY ELECTRONIC NETWORK OR LINES, SERVERS, SOFTWARE, OR FAILURE OF TRANSMISSION AS A RESULT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR ON THE PLATFORM, INCLUDING ANY INJURY OR DAMAGE TO ANY PERSON'S COMPUTER RESULTING FROM PARTICIPATION OR DOWNLOADING MATERIALS IN CONNECTION WITH THE PLATFORM. UNDER NO CIRCUMSTANCES WILL Rotten Grapes BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM USE OF THE PLATFORM OR OUTPUT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER IS SOLELY RESPONSIBLE FOR THE CUSTOMER MATERIALS IT SUBMITS TO THE PLATFORM AND THE RESULTS THEREOF.

SOME STATES DO NOT ALLOW CERTAIN DISCLAIMERS OR LIMITATIONS ON WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER. THESE LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, NEITHER Rotten Grapes NOR ITS LICENSORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR DATA (EVEN IF Rotten Grapes HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OF OR THE INABILITY TO USE THE PLATFORM, UNDER ANY LEGAL THEORY WHATSOEVER (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE). TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, NEITHER Rotten Grapes NOR ITS LICENSORS WILL BE LIABLE TO CUSTOMER FOR ANY AGGREGATE AMOUNT EXCEEDING THE AMOUNTS PAID BY CUSTOMER TO Rotten Grapes IN THE 12 MONTHS PRECEDING THE EVENTS GIVING RISE TO THE CLAIM. SOME STATES DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY FOR DAMAGES, SO THE ABOVE MAY NOT APPLY TO CUSTOMER.

Customer will release, defend, indemnify, and hold Rotten Grapes, its past, present, and future affiliates, licensors, licensees, marketing partners, and suppliers, together with their respective officers, directors, employees, and agents, harmless from and against any damages, losses, claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from Customer Materials, Customer’s violation of this Agreement, and Customer’s use of the Platform. Rotten Grapes may opt to defend such claims at Rotten Grapes’s sole discretion, in which case Customer will indemnify Rotten Grapes for the costs of such defense. California residents hereby waive California Civil Code Section 1542, which states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party.”

Rotten Grapes will indemnify, defend, and hold Customer harmless from and against any third-party claims alleging that the Platform infringes any third party’s IP Rights. Rotten Grapes will have no obligation for any claims arising out of: (a) misuse or modification of the Platform, including any violation of this Agreement or the Order; (b) combination of the Platform with any components not provided by Rotten Grapes; or (c) Customer Materials or Rotten Grapes’s conformance with Customer’s specific requirements or instructions. If a third-party claim of infringement is threatened or occurs, Rotten Grapes may seek to mitigate damages by modifying the Platform to be non-infringing, obtaining a license for Customer to use the Platform, or (if neither of the foregoing are commercially feasible) terminating Customer’s subscription and refunding any unused, prepaid fees. The provisions of this paragraph set forth Rotten Grapes’s exclusive liability, and Customer’s exclusive remedy, for any third-party claims of infringement.

Rotten Grapes reserves the right to modify or discontinue the Platform at any time, with or without notice (provided Rotten Grapes will refund a pro rata portion of any prepaid subscription fees if it chooses to discontinue the Platform during the subscription period). Rotten Grapes may suspend Customer’s account if: (a) Customer is in violation of this Agreement or the applicable Order (including, without limitation, any excess usage or nonpayment); or (b) Rotten Grapes otherwise determines in good faith that such a suspension is necessary to protect the integrity and security of the Platform. Rotten Grapes will use commercially reasonable efforts to promptly restore access once the underlying issue has been satisfactorily resolved. Customer’s obligation to pay subscription fees will not be affected by any suspension in accordance with this paragraph.

Either party may terminate this Agreement if the other party materially breaches this Agreement and such breach is not remedied within thirty (30) days of receiving written notice thereof. Termination will not relieve either party from any obligations incurred or arising prior to such termination, and those sections of these Terms which are by their nature intended to survive termination (including, without limitation, the disclaimers, limitation of liability, indemnity, and general clauses) will so survive. Customer should download any Customer Materials it wishes to download from the Platform prior to the effective date of termination. Unless otherwise agreed in writing, after Customer’s subscription has ended, Rotten Grapes will delete Customer Materials stored on the Platform in accordance with Rotten Grapes’s standard data retention and deletion policies (and subject to any legal retention requirements).

This Agreement and any dispute or claim arising out of or in connection with it will be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to its conflicts of law rules. Any dispute arising out of this Agreement will be settled exclusively through binding arbitration administered in [Wilmington, Delaware] by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (and in accordance with the Expedited Procedures in those Rules). Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief from any court having jurisdiction for any alleged or threatened misappropriation of intellectual property rights or breach of confidentiality. The prevailing party in any dispute hereunder will be entitled to recover its reasonable attorney’s fees and costs.

THE PARTIES HERETO EXPRESSLY WAIVE THE RIGHT TO TRIAL BY JURY AND ANY RIGHT TO PARTICIPATE IN CLASS-ACTION PROCEEDINGS.

Neither party shall export, directly or indirectly, any technical data acquired from the other party hereunder (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations, including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval.

Rotten Grapes may include Customer’s name and logo in customer lists on its website and marketing materials, provided it will discontinue such use reasonably promptly if requested in writing by Customer.

Rotten Grapes will not be responsible or liable for any delays or failures to perform due to causes beyond Rotten Grapes’s reasonable control, which may include natural disasters, terrorist attacks, criminal activity, failure of internet or communications networks, health emergencies including pandemics or similar serious outbreaks of disease, or other force major events.

The parties are independent contractors, and nothing herein will be deemed to create any partnership, joint venture, agency, or fiduciary relationship between the parties.

Customer may not assign this Agreement or these rights and obligations without Rotten Grapes’s prior written consent; any purported assignment in violation of this Agreement will be null and void. If any provision of this Agreement is determined to be void or unenforceable in whole or in part, the remaining provisions of this Agreement will not be affected thereby and will remain in force and effect.

Rotten Grapes may provide notice to Customer by email or regular mail at the address listed in its account profile, or through messages displayed or sent via the Platform.

This Agreement and any policies referenced herein constitute the entire agreement between the parties regarding the subject matter thereof and supersede any prior or contemporaneous agreements with regards to such subject matter. A party's failure to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision.