Last updated: February 12, 2018
These Terms provide that all disputes between you and Indix will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT A JUDGE OR JURY and your claims cannot be brought as a class action. Please review Section 8.8 below for the details regarding your agreement to arbitrate any disputes with Indix.
You must be at least eighteen (18) years of age to use the Service. By agreeing to these Terms, you represent and warrant to us: (i) that you are at least eighteen (18) years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to these Terms and you agree to be bound by these Terms on behalf of such organization
1.1 “Indix Data Service” means Indix’s proprietary database of product-related information, data, attributes and other content, all compilations of the foregoing, data structures and formats, file structures and formats, algorithms, applicable to such and similar compilations, as well as all other taxonomies contained within the database, including all documentation.
1.2 “Indix Tools” means any web application, API endpoint, feed service, mobile application or software plugin, extension, adapter or connector or any other access method made available to you by Indix as a means of accessing, or in connection with your use of, the Indix Data Service.
1.3 “Intellectual Property Rights” means all worldwide rights in, arising out of, or associated with: (a) published and unpublished works of authorship, including compilations, databases, derivative works, maskworks, and software (including source code and object code), and all copyrights and all other rights corresponding thereto, including moral rights; (b) inventions and discoveries, including all United States and foreign patents, and all registrations and applications therefor and all reissues, divisionals, re-examinations, corrections, renewals, extensions, provisionals, continuations and continuations-in-part thereof; (c) trademarks, service marks, internet domain names, URLs, and other designations of origin, including all trademark and service mark registrations and applications therefor and all goodwill associated therewith throughout the world; and (d) trade secrets, know-how, and confidential or proprietary information, including algorithms, customer and supplier lists, formulas, know-how, methods, processes, programs, prototypes, systems, and techniques, including all trade secrets and other rights in know how; and (e) the right to sue for past, present, or future infringement of any of the foregoing.
1.4 “Licensed Data” means any data or other content that is delivered to you via the Indix Data Service in accordance with these Terms.
1.5 “Plan” means the particular plan selected by you on the Plans and Pricing page located ator on your Indix Order Form, if applicable, which specifies your cost to use the Service, the frequency and timing of payment by you, the API end points or other access method, the Purchased Credit Amount and the frequency at which you may make calls on the Service.
1.6 “Purchased Credit Amount” means the number of credits you have purchased (or which have been allotted to you), as specified in the Plan chosen by you, which entitles you during the term to access a certain number of product records.
1.7 “Service” means, collectively, the Indix Data Service, the Licensed Data and the Indix Tools.
2. LICENSE GRANT AND RESTRICTIONS
2.1 License Grant. Subject to the terms and conditions of these Terms, Indix hereby grants to you a limited, personal, non-exclusive, nonsublicenseable, and nontransferable license to:
(a) make calls as specified in your Plan up to the amount of product records your Purchased Credit Amount allows at a rate per minute not to exceed the rate specified in your Plan;
(b) use, reproduce, distribute, modify and publicly display Licensed Data as part of your product, service, application or internal business use;
(c) download, install, and use the Indix Tools solely in connection with your use of the Indix Data Service; and
(d) internally use a reasonable number of copies of any documentation or materials provided or made available by Indix to you under these Terms solely in connection with your use of the Indix Data Service.
2.2 License Restrictions. Notwithstanding Section 2.1, you will not directly or indirectly (and will not permit any third party to):
(a) fail to correctly identify yourself to the Indix Data Service when requesting API or other authorization;
(b) access, store, use, or otherwise exploit any Licensed Data for longer than necessary for your use expressly permitted by these Terms or aggregate any data or other content contained in the Indix Data Service to create databases or other compilations except as necessary for your product, service, application or internal business use, or modify or otherwise create derivative works of any part of the Service except as permitted by Section 2.1(b);
(b) transfer, disclose or distribute any portion of the Service, access to it or any data or other content contained in it to any third party except as permitted by Section 2.1(b) or use the Licensed Data to compete in any way with the Service;
(c) reverse engineer, disassemble, decompile, or otherwise attempt to gain access to the source code of the Service (except to the extent permitted by applicable law) or remove, alter, or cover any copyright notices or other proprietary rights notices placed or embedded on or in any part of the Service;
(d) interfere with the normal operation, or disable or circumvent any security features, of the Service or subject any portion of the Service to the terms of any “open source” or “creative commons” license or use, copy or store in any way images, photos, or other visual representations or any creative product descriptions provided as part of the Service;
(e) facilitate or promote illegal activity, including, any activity that is fraudulent; and/or
(f) incorporate any materials, or encourage your end users to post or upload any materials, that infringe or assist others to infringe any Intellectual Property Right or violate any applicable laws, regulations or generally-accepted industry guidelines.
2.3 Availability. Indix will make commercially reasonable efforts to make the Service available, other than during periods of planned maintenance and when performance issues are caused by factors beyond Indix’s reasonable control or result from your actions or omissions.
2.4 Images and Creative Product Descriptions. These Terms do not grant you any rights to copy, use or otherwise exploit any images or creative descriptions contained in the Indix Data Service. Please see our copyright policy located here https://www.indix.com/copyright/. If you believe any materials made available via the Service infringe any copyrights or other rights please contact us in accordance with our copyright policy.
2.5 No Warranties. You will not make any representation or any express or implied warranty to third parties (including, to any end users of your product, service or application) on behalf of Indix.
2.7 Ownership of Indix Data Service and Reservation of Rights. You agree and acknowledge that the Service, including all Intellectual Property Rights in the Service, is the sole and exclusive property of Indix and its licensors. You agree that the Service includes significant originality and creative authorship in the selection, organization, processing, and presentation of the information comprising the Service and that the Service includes material or an organization of material which is subject to national and international copyright protection. All rights not expressly granted to you in these Terms are reserved to Indix, including all rights to Indix trademarks and goodwill.
2.8 Export Restrictions. You agree to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Specifically, you covenant that you shall not -- directly or indirectly -- sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology acquired by the use of the Service to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Additionally, you represent that you are not located in a sanctioned country (currently Cuba, Iran, North Korea, Sudan, and Syria and the Crimea Region of the Ukraine) and are not a prohibited person or entity as defined in the laws and regulations listed above.
2.9 Confidentiality. You will maintain the confidentiality of and not disclose to any third party: (a) these Terms, (b) all non-public information disclosed by Indix to you pursuant to these Terms, and (c) all feedback, all Service performance data, and all other information obtained through use or access to the Service.
3. FEES AND PAYMENT
3.1 Fees and Payment Terms. You will pay Indix all fees specified in your Plan and Indix may charge your credit card for such fees without additional notice. Indix may choose to use a third party service provider for the purpose of effectuating these and other payments, and you understand and agree that your payments may be processed by, and may be subject to the terms of, such payment processors. If you fail to pay any amount due, Indix may terminate or suspend your license to the Service. If you believe that Indix incorrectly charged you, you must contact Indix in writing within 30 days of the applicable charge date, specifying the purported calculation error and the amount of adjustment or credit requested.
3.2 Taxes. Other than Indix’s own income taxes, you will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from these Terms. Taxes may be charged separately by Indix. If you have a tax exemption, you must notify Indix prior to Indix’s issuance of an invoice. Upon request, you will provide Indix with appropriate evidence of tax payment or exemption.
3.3 Recurring Payments. Indix may enable you to select automatically renewing payments for your use of the Service on monthly basis. The recurring fee for your Plan for use of the Service is paid in advance for the month following each recurring charge and is non-refundable except as expressly set forth in these Terms. Taxes may apply on the fee. If we change the fee for the Service, we will notify you in advance and allow you to accept the new fee amount or cancel your use of the Service. If the credit card(s) we have on file for you is/are declined for payment of your Plan fee, you have 30 days to provide us a new credit card or your Service use will be canceled. If you provide us with a new card and are successfully charged within 30 days, your new Service usage period will be based on the original renewal date and not the date of the successful charge. If your Service is terminated, you may be entitled to a refund, subject to limitations provided in this Section 4 of these Terms. UNLESS YOU NOTIFY US BEFORE A CHARGE THAT YOU WANT TO CANCEL OR DO NOT WANT TO AUTO RENEW, YOU UNDERSTAND YOUR ACCESS TO AND ABILITY TO USE THE SERVICE WILL AUTOMATICALLY CONTINUE INDEFINITELY AND YOU AUTHORIZE US (WITHOUT NOTICE TO YOU, UNLESS REQUIRED BY APPLICABLE LAW) TO COLLECT THE THEN-APPLICABLE SERVICE RECURRING FEE AND ANY TAXES, USING ANY CREDIT CARD WE HAVE ON RECORD FOR YOU.
4. TERM AND TERMINATION
4.1 Term. The term of these Terms begins when you login to your account and will continue for the period specified with respect to your Plan or until earlier terminated in accordance with the provisions of these Terms.
4.2 Effect of Termination. All unpaid amounts due under the terms of your Plan are due in full upon termination for any reason. If these Terms are terminated by you for cause or by Indix without cause, then Indix will provide you with a pro-rata refund of any unused Purchased Credit Amount within 30 days of the date of termination. No other refunds will be given, including for any unused credits at the end of the term. Upon termination of these Terms for any reason, your licenses to the Service under these Terms will end and you will cease all use of the Service and destroy and discontinue use of any Licensed Data. Sections 1, 2 (except for 2.1 and 2.3), 3, 4.3 and 6 through 8 will survive any expiration or termination of these Terms.
5.1 Publicity and Marketing. You agree that Indix may issue a press release relating to your use of the Service, subject to your reasonable approval, and that Indix may use your name and logo (following your brand guidelines) in digital and print marketing materials indicating that you are customer of Indix.
5.2 Use of the Indix Marks. Upon request of Indix, if your externally-facing application, website or other use displays Licensed Data, you will show a "Powered by Indix" logo (approved by Indix) identifying the source of the Licensed Data.
6.1 Indemnification. We will defend, indemnify, and hold you harmless from and against any harms, expenses, damages, and losses (“Losses”) arising out of any third party claim that the Service, as provided by Indix and when used by you in accordance with these Terms, infringes any United States patent or copyright that is issued or registered as of the Effective Date, excluding any claims where the alleged infringement is caused by the combination of the Service with any material or technology not provided by Indix. You will defend, indemnify, and hold Indix harmless from and against any Losses arising out of or in connection with any third party claim related to your use of the Service, any breach of these Terms, or any content provided by you.
6.2 Procedure for Indemnification. In the event of any claim under which a party (the “Indemnifying Party”) is obligated hereunder to indemnify the other party (the “Indemnified Party”), the Indemnified Party will provide the Indemnifying Party with prompt written notice of the claim and reasonable assistance, at the Indemnifying Party’s request and expense, with the defense and settlement of the claim, provided that Indemnifying Party must not settle any indemnified claim that requires any admission of wrongdoing or any obligation other than the payment of money that is the Indemnifying Party’s obligation to pay without the Indemnified Party’s prior written consent, which consent will not be unreasonably withheld, conditioned, or delayed.
6.3 Limited Remedy. This Section 6 states Indix’s sole and exclusive liability, and your sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party Intellectual Property Rights by the Service.
7. LIMITATIONS OF LIABILITY
7.1 DISCLAIMER OF WARRANTIES. THE SERVICE AND ALL INTELLECTUAL PROPERTY RIGHTS MADE AVAILABLE OR LICENSED BY INDIX UNDER OR IN CONNECTION WITH THESE TERMS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. INDIX EXPRESSLY DISCLAIMS ALL WARRANTIES, DUTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO THE SERVICE, THE SECURITY OF ANY DATA PROCESSED IN RELATION TO THE SERVICE, AND ALL INTELLECTUAL PROPERTY RIGHTS RELATED TO THE SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON‑INFRINGEMENT.
7.2 LIMITATION OF LIABILITY. NEITHER INDIX NOR ITS LICENSORS WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER, OR CONSEQUENTIAL DAMAGES ARISING FROM OR OTHERWISE RELATED TO THESE TERMS, EVEN IF INDIX OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. INDIX’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE FEES PAYABLE BY YOU TO INDIX UNDER THESE TERMS DURING THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO ANY CLAIM.
7.3 INDEPENDENT ALLOCATIONS OF RISK. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE TERMS BETWEEN THE PARTIES AND WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED TO YOU BY INDIX AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS.
8.1 No Partnership, Joint Venture or Franchise. These Terms will not be construed as creating a partnership, joint venture, or agency relationship or as granting a franchise. The parties are performing their obligations under these Terms as independent contractors.
8.2 Assignability. You may not assign (including by way of merger, reorganization, consolidation, or the sale of all or substantially all your assets or equity) your rights, duties, or obligations under these Terms without Indix’s prior written consent, which consent will not be unreasonably withheld. Indix may assign these Terms without your consent to a successor if the successor agrees to assume and fulfill all of Indix’s obligations under these Terms.
8.3 Notices. Any notice required or permitted to be given in accordance with these Terms will be effective two business days after mailing if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested to the address supplied by you upon registration for the Service in the case of notice by Indix and to the address set forth below in Section 8.8(d) in the case of Indix.
8.4 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond its reasonable control.
8.5 Construction and Interpretation. If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect. The headings appearing at the beginning of sections have been inserted for identification and reference purposes only and must not be used to interpret these Terms. The word “or” is used in the inclusive sense of “or” and the words “or,” “any,” and “either” are not exclusive. If any limitation or restriction on the grant of any license to you under these Terms is found to be illegal, unenforceable, or invalid, the license will immediately terminate. Failure by a party to enforce any provision of these Terms will not be deemed a waiver of future enforcement of that or any other provision. The parties have had an equal opportunity to participate in the drafting of these Terms and no ambiguity will be construed against any party based upon a claim that the party drafted the ambiguous language.
8.6 Entire Agreement. These Terms are the final and complete expression of the agreement between the parties regarding the subject matter of these Terms and supersede all previous communications. If you have entered into an Order Form with us, such Order Form shall be deemed to be part of these Terms and in the event of any inconsistency between these Terms and the Order Form, the terms of the Order Form shall prevail.
8.7 Governing Law and Disputes. These Terms will be governed in all respects in accordance with the local laws of the State of Washington, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Indix agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within King County, Washington, USA, for the purpose of litigating all such disputes. We operate the Service from our offices in the State of Washington, USA, and we make no representation that the Service is appropriate or available for use in other locations.
8.8 Dispute Resolution and Arbitration
(a) Generally. In the interest of resolving disputes between you and Indix in the most expedient and cost effective manner, you and Indix agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claimds arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND INDIX ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(b) Exceptions. Notwithstanding subsection 8.8(a), we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief or other provisional relief in aid of arbitration from a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.
(c) Arbitrator. Any arbitration between you and Indix will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Indix.
(d) Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail ("Notice"). Indix's address for Notice is: Indix Corporation, 600 Stewart St, Suite 2000, Seattle, WA 98101, USA. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Indix may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Indix shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, Indix shall pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by Indix in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00, whichever is greater.
(e) Fees. In the event that you commence arbitration in accordance with these Terms, Indix will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in King County, Washington, USA, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Indix for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(f) No Class Actions. YOU AND INDIX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Indix agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
(g) Modifications. In the event that Indix makes any future change to this arbitration provision (other than a change to Indix's address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Indix's address for Notice, in which case your account with Indix shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.
(h) Enforceability. If subsection 8.8(f) is found to be unenforceable or if the entirety of this Section 8.8 is found to be unenforceable, then the entirety of this Section 8.8 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 8.7 shall govern any action arising out of or related to these Terms.
8.10 Changes to the Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, we will make reasonable efforts to notify you of such change. We may provide notice through a pop-up or banner within the Service, by sending an email to any address you may have used to register for an account, or through other mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, we may require you to provide consent by accepting the changed Terms. If we require your acceptance of the changed Terms, changes are effective only after your acceptance. If you do not accept the changed Terms, we may terminate your access to and use of the Service. All other changes are effective upon publication of the changed Terms. Disputes arising under these Terms will be resolved in accordance with the Terms in effect that the time the dispute arose.
8.11 Contact Information. The services hereunder are offered by Indix Corporation, located at 600 Stewart St, Suite 2000, Seattle, WA 98101, USA. You may contact us by sending correspondence to the foregoing address or by emailing us at email@example.com. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms.