Before selling data on Infochimps, you must agree to the Infochimps Data Supplier Agreement:
This Data Supply Agreement (this Agreement) governs the terms-by which you may provide data and other content to members of the Infochimps.org community, on a non-exclusive basis through the web site located at www.infochimps.org (the Site). This Agreement is in addition to the Website Terms of Use applicable to the Site, as such terms may be amended from time to time (the Terms of Use) and in the event of any inconsistency between this Agreement and the Terms of Use, the terms of this Agreement shall govern.
1. This is a legal agreement between any member intending to upload data or other content onto the Site (in this agreement referred to as you or the Supplier) and Infochimps, Inc. (Infochimps), the operator of the Site. The Supplier wishes to appoint Infochimps as its non-exclusive agent to license, sublicense and distribute Content (as defined below) provided by the Supplier on the terms and conditions set forth in this Agreement and Infochimps’s form of Content License Agreement (a copy of which will be made available on the Site), as such agreement may be amended from time to time or modified for certain clients consistent with the rights granted herein (the Content License Agreement), or any distribution partner, license agreement provided that such agreement is consistent with rights granted to Infochimps herein.
2. Upon accepting the terms of this Agreement, Supplier may make Content available to Infochimps by following the Upload procedures and policies identified on the relevant portion of the Site. Each upload of Content will be governed by the terms and conditions of this Agreement, which will be confirmed by Supplier upon each upload.
3. This is a fairly lengthy document, and it contains many important provisions that affect your rights and obligations. By ticking the correct box at the end of this Agreement and typing I agree, you thereby agree to be bound by the terms of this Agreement. We encourage you to print a copy of this Agreement for your records.
4. This Agreement shall be effective only upon Infochimps’ acceptance of this Agreement following its submission by you and shall remain in full force and effect until terminated in accordance with its terms. If at any time the terms and conditions of this Agreement are no longer acceptable to the Supplier, it must follow the termination procedures set forth below under Term and Termination.
1. The parties acknowledge that the Supplier may, from time to time, provide information, software, data files, code snippets and other material to Infochimps using the Upload procedures of the Site or such other procedures as the parties may mutually agree (collectively, Content) together with descriptive and other information, documents or software relating to such Content or otherwise required to enable Infochimps to realize the commercial potential of the rights granted in the Content (Descriptive Information). Infochimps, in its sole discretion, may determine which of such Content is suitable for posting on the Site or other means of distribution, and only such Content as it deems suitable will be considered Accepted Content for the purposes of applicable provisions of this Agreement.
2. Supplier shall only upload Content for which it has full authorization or rights to publish and/or resell or license. All Content uploaded shall be of commercial quality, be accompanied by a full description of the metadata associated with such Content, and clearly state the origin of and methodology used to gather the data which comprises the Content, giving credit where appropriate.
3. Supplier is responsible for providing its own license terms to govern the use of any Content uploaded to Infochimps’ servers after it is downloaded by an end-user. Any form of license or other terms made available by Infochimps is provided as a courtesy to Supplier only, and Supplier hereby agrees that it shall review such license terms with its own legal counsel prior to utilizing such provided license terms or any portion thereof. Supplier acknowledges and agrees that Supplier uses such license terms at its own risk and Infochimps is not responsible for any damages whatsoever that Supplier may experience as a result of such use.
4. Supplier acknowledges and agrees that any and all sales of Content facilitated by the Site are between end-user customers and Supplier only and Infochimps is neither a party to the transaction nor to the license agreement entered into between each end-user customer and Supplier. Supplier acknowledges and agrees that Infochimps shall not be held responsible for how end-user customers use Content after downloading such Content from the Site, including for all illegal redistribution or other use that violates of the terms of Supplier’s end user license agreement. Supplier bears full responsibility for any dispute with an end-user customer over such end-user customer’s permitted use of the Content or other end-user license disputes.
5. In addition to the terms of this Agreement, Supplier and Infochimps each acknowledge and agree that the provision of all Content is subject to the policies and procedures outlined in the Site, the terms of which are incorporated by reference into this Agreement. Any breach of the rules relating to acceptable Content outlined in the Site will be deemed to be a breach of this Agreement.
1. The Supplier hereby appoints Infochimps as Supplier’s worldwide, non-exclusive agent and distributor to sell, license or sublicense Content to third parties and to collect and remit funds in connection with those endeavours on the terms set forth in this Agreement. For all Content, Supplier grants Infochimps:
2. In addition to the foregoing grant, Infochimps and its distribution partners may post, reproduce, modify, display, make derivative works of or otherwise use any Accepted Content for their own business purposes relating to the promotion of the Site, the Content and their distribution programs, and expand the market for the licensing of Accepted Content (including, without limitation, the use of the Accepted Content and the Supplier’s registered and unregistered trademarks relating to Content for marketing, sales and promotional efforts whether on the Site or through third parties). No compensation shall be due to the Supplier for use of Accepted Content for such business purposes.
3. The Parties agree that all rights, including title and copyright, in and to the uploaded Accepted Content will be retained by the Supplier, and no title or copyright is transferred or granted in any way to Infochimps or any third party except as provided in this Agreement and any license or sublicense agreements, which Infochimps is authorized to enter into on the Supplier’s behalf.
4. In connection with Infochimps’ appointment, Infochimps shall (i) provide a platform whereby Supplier may upload and describe its Content, provide for license terms, and set purchase prices, (ii) store Content according to standard industry practice, (iii) use commercially reasonable efforts to ensure end-user customers agree to all of Supplier’s license terms prior to initiating any download of Content, and (iv) use commercially reasonable efforts to collect full payment for each purchase prior to any download of Content by any end-user customer.
1. The Supplier acknowledges that Infochimps prohibits any Content or any other material that infringes on any patent, trademark, copyright, trade secret, right to privacy, right to publicity, or any other applicable law or proprietary right to be uploaded to the Site.
2. By uploading Content, you are warranting that you own all proprietary rights, including copyright, in and to the Content with full power to grant the rights contemplated to be provided in the Content License Agreement or distribution partner license agreements.
3. The Supplier agrees that neither Infochimps nor any of its directors, officers, employees, partners, affiliates or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use any Content or Descriptive Information, or any error, omission or other matter relating to a model or property release respecting Content or Descriptive Information.
1. You shall set the purchase price for the Content. The initial schedule of Content Purchase Prices is set forth on Appendix B to this Agreement and incorporated herein by reference, as it may be modified from time to time. Notwithstanding any other provision contained herein, if Supplier shall sell any Content to any end-user customer or to or through any other reseller or distributor at a price which is lower than the prices set forth on Appendix “B” (as it may be modified from time to time in accordance with the provisions hereof), then Infochimps shall simultaneously be allowed, at its discretion and without giving notice to Supplier, to sell the Content at such lower purchase price. Supplier shall be obligated to promptly inform Infochimps if any Content is sold at a price which is lower than the prices set forth on Appendix “B”.
2. Infochimps agrees to pay to Supplier a portion of the fees collected in respect of Accepted Content that is downloaded or otherwise purchased by end-users according to the fee schedule set forth on Appendix A to this Agreement and incorporated herein by reference, as it may be modified from time to time (the Fee Schedule), and the licensing of Content recorded by Infochimps. The Fee Schedule is subject to change in the sole discretion of Infochimps in the ordinary course of its business without notice by posting such changes on the Site. If at any time the Fee Schedule is not acceptable to the Supplier, you may refrain from providing additional Content or terminate this Agreement in accordance with its terms.
3. At the end of each calendar month, Infochimps shall total the sums collected by Infochimps from the purchase of Accepted Content and shall subtract all applicable commissions, data transfer and maintenance fees owing to Infochimps and all other applicable taxes, fees, and sums described below. Infochimps will endeavor to make payment of the remaining net balance in respect of purchased downloads of Accepted Content on a monthly basis on or about the 15th day of the month following the end of the month in which the date of purchase of Accepted Content occurred, except when sales reporting from a distribution partner is delayed, in which case payments will be made in the month following the date such sale is reported. Negative balances shall be charged to the credit/debit card of Supplier on file with Infochimps and positive balances shall be deposited directly into the Supplier’s deposit bank account on file with Infochimps. Supplier is responsible at all times for maintaining with Infochimps current credit/debit card and bank account information. In all cases, payment of fees to the Supplier will be net of:
4. Without limiting the generality of the foregoing, Infochimps is entitled to set-off against any amount owing to Supplier, all amounts to which Infochimps is or may be entitled under this Agreement or otherwise at law, including withholding amounts as security for any pending or threatened claim relating to any matter which is the subject of a representation, warranty or indemnity of Supplier under this Agreement.
5. The parties further agree that Infochimps shall not be required to pay royalties or fees to the Supplier if Infochimps is restrained or otherwise prevented from using rights granted under this Agreement relating to Content because those rights are found to be an infringement or contravention of the intellectual or other property rights of a third party.
You acknowledge and agree that you will be responsible for each and every access or use of the Upload portions of the Site that occurs in conjunction with your username and password, and that Infochimps is authorized to accept your username and password as conclusive evidence that you wish to upload Content pursuant to this Agreement. Infochimps shall have no liability for or responsibility to monitor the provision of Content under your username and password.
1. Infochimps has policies and processes which must be adhered to prior to Content being posted on the Site or otherwise being offered for sale or license. Notwithstanding that some qualitative standards are required to be met, Infochimps does not and cannot review all Content uploaded to the Site and is not responsible for the content, quality, or consequences of your uploading such communications or Content. Notwithstanding the foregoing, Infochimps reserves the right to delete, move, refuse to accept, or edit any Content or Descriptive Information that it may determine, in its sole discretion, violates or may violate this Agreement, the intellectual or proprietary rights of others, any of its policies or is otherwise unacceptable, and you hereby agree to forfeit any fees payable in respect of such Content to Infochimps or as it may direct. Infochimps shall have the right but not the obligation to correct any errors or omissions in any Content or Descriptive Information, as it may determine in its sole discretion. Supplier acknowledges and agrees that any screening of Content performed by Infochimps to determine Accepted Content is done as a courtesy only. Supplier shall notify the Company if the Content contains meaningless data which has been inserted purposefully for steganographic purposes.
2. NOTICE: Supplier acknowledges and agrees that the Content Supplier provides pursuant to this Agreement that becomes Accepted Content may be purchased or licensed by members of Infochimps with the intention that such licensees will adhere to the terms of the Content License Agreement or any distribution partner license agreement. Infochimps cannot take responsibility for the compliance by purchasers and licensees of the terms of such agreements, and you acknowledge and agree to the possibility of Content being used in a manner that is not contemplated in this Agreement or the Content License Agreement or any distribution partner license agreement. Supplier also agrees that, notwithstanding any rights that Supplier may have to pursue the licensees of such Content at law, Infochimps shall have no liability to Supplier or any person claiming through Supplier for any breach by a licensee of the terms of any agreement respecting Accepted Content. Infochimps will use reasonable commercial efforts to assist in the protection of Supplier’s intellectual property rights, at Supplier’s request and expense.
1. The Supplier acknowledges that the Confidential Information (defined below) which it obtains through entering into this Agreement, the use of the Site, and the provision of Content constitutes valuable, confidential, proprietary information of Infochimps, its licensors and licensees, and agrees that during the term of this Agreement and thereafter it shall not, without the express written consent of Infochimps, use or disclose to any other person any such Confidential Information, except as specifically authorized under this Agreement.
2. For the purposes of this Agreement, Confidential Information means any and all data, information, documents, software or materials relating to the business and management of Infochimps, its members, affiliates, licensors or licensees, that is designated as confidential or ought reasonably to be considered confidential, including but not limited to: their business model and operations, processes, products, designs, pricing, promotions, business plans, business opportunities, alliances, Content, graphics, documentation, finances, research, development, know-how, trade-secrets, training materials, personnel, identities or personal information of any kind pertaining to members, clients, methodologies, Site content belonging to others and other intellectual property.
1. The Supplier hereby represents and warrants as follows:
1. Supplier agrees to indemnify, defend and hold Infochimps and its affiliates, and their respective directors, officers, employees, shareholders, agents and licensees of Content (each, an Infochimps Party and, collectively, the Infochimps Parties) harmless from and against any and all claims, liability, losses, costs and expenses (including reasonable attorneys’ fees) incurred by any Infochimps Party as a result of or in connection with or resulting from:
2. If Supplier receives notice of the existence or commencement of any Claim independent of receipt of notice from Infochimps, Supplier shall promptly notify Infochimps of such Claim. Promptly after Infochimps obtains knowledge of the existence or commencement of a Claim, the Infochimps will notify the Supplier of such Claim in writing; provided, however, that any failure to give such notice will not waive any rights of Infochimps except to the extent that the rights of the Supplier are actually prejudiced thereby.
3. Infochimps reserves the right, at Supplier’s expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Supplier, and in such case, Supplier agrees to cooperate with Infochimps’s defense of such claim. In such case, Infochimps may settle such Claim without the Supplier’s written consent.
4. The Supplier agrees that Infochimps shall have the right to determine whether and to what extent to proceed against a licensee or other third party (an Infringer) for any violation of the Content License Agreement, or other license agreement or alleged infringement of other rights of the Supplier. The Supplier hereby releases Infochimps from any and all claims the Supplier might have, either directly or indirectly, arising out of or in connection with a determination by Infochimps to proceed or not to proceed against any Infringer in any instance. Infochimps hereby agrees that any monetary recovery it receives as a result of any legal or enforcement action taken against any such Infringer, to the extent such monies are intended to compensate Infochimps for lost licensing fees or statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, reasonable attorneys’ and experts’ fees) incurred by or on behalf of Infochimps in connection with such action, be divided between the Supplier and Infochimps pursuant to the provisions of the Compensation section above. In the event Infochimps elects not to proceed against an Infringer, the Supplier shall have the right to proceed against such Infringer for such license violation or infringing action. The Supplier hereby agrees that any monetary recovery it receives as a result of any, legal action taken against any such Infringer, to the extent such monies are intended to compensate the Supplier for lost licensing fees or include statutory damages, shall, after deduction of all costs and expenses incurred in gaining such recovery (including, without limitation, reasonable attorneys’ and experts’ fees), be divided between the Supplier and Infochimps pursuant to the provisions of the Compensation section above.
1. This Agreement is effective until terminated. You may terminate this Agreement at any time by giving thirty (30) days written notice to Infochimps using help@infochimps.org or such other means of written notice acceptable to Infochimps which enables confirmation of your identity and your intention to terminate. Infochimps may also terminate this Agreement for any reason by giving you thirty (30) days notice by e-mail at the last address contained in your membership information. If Infochimps terminates your membership to the Site, such termination shall be deemed to be notice of termination of this Agreement, as well.
2. Either party may terminate this Agreement upon written notice effective immediately upon being sent to the last address included on the Site, if the other party:
3. In addition, Infochimps may deem an account to be terminated and may off-set any fees or credits contained in such account against its costs of administration if there has been:
1. Upon the termination of this Agreement, the grant of authority given to
Infochimps shall cease subject to the following conditions:
2. Upon termination, Infochimps will be entitled to retain all amounts owing to the Supplier for a period of thirty (30) days to determine any applicable rights of set-off, and shall be entitled to deduct from such amounts, a reasonable administrative fee for establishing, managing and terminating your account.
3. Notwithstanding any other provision in this Agreement, the termination or expiration of this Agreement shall not alter or affect the rights granted to licensees or sub-licensees by Infochimps pursuant to this Agreement.
4. Termination of this Agreement shall operate without prejudice to Infochimps’s rights, defenses and limitations of liability provided under this Agreement or the Terms of Use, which rights, defenses and limitations of liability shall survive termination of this Agreement. In addition, the provisions of this Agreement set forth in Sections 4, 7, 8, 9, 10, 12, 13, 14, 15, 16 and 18 shall survive termination of this Agreement and continue in full force and effect.
1. THE SITE, INCLUDING ANY CONTENT CONTAINED THEREIN, ARE PROVIDED BY INFOCHIMPS AS IS WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. INFOCHIMPS DOES NOT REPRESENT OR WARRANT THAT THE SITE OR THE CONTENT WILL BE MADE AVAILABLE FOR SALE OR LICENSE OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR FREE.
2. INFOCHIMPS DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY CONTENT AVAILABLE FOR DOWNLOADING THROUGH THE SITE WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
1. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SITE INCLUDING WITHOUT LIMITATION ANY OF THE CONTENT OR INFORMATION CONTAINED THEREIN.
2. IN NO EVENT SHALL INFOCHIMPS OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS OR OTHER INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SITE, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF INFOCHIMPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE.
3. IN ANY EVENT, INFOCHIMPS’S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT OR IN RESPECT OF THE USE OR EXPLOITATION OF ANY OR ALL PART OF THE SITE OR THE CONTENT IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE FEES COLLECTED BY INFOCHIMPS FOR THE CONTENT THAT IS THE SUBJECT MATTER OF THE CLAIM, BUT IN ANY EVENT WILL NOT EXCEED ONE THOUSAND ($1,000.00) UNITED STATES DOLLARS.
4. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF INFOCHIMPS OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, AGENTS OR LICENSEES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
1. This Agreement will be governed and interpreted pursuant to the laws of the State of Texas, United States of America, notwithstanding any principles of conflicts of law. You specifically consent to personal jurisdiction in Texas in connection with any dispute between you and Infochimps arising out of this Agreement or pertaining to the subject matter hereof. The parties to this Agreement each agree that the exclusive venue for any dispute between the parties arising out of this Agreement or pertaining to the subject matter of this Agreement will be in the state and federal courts in Travis County, Texas.
2. You consent to service of any required notice or process upon you by registered mail or overnight courier with proof of delivery notice, addressed to the address or contact information provided by you at the time you are first granted access to the membership portions of the Site or as you may subsequently update by written notice to Infochimps. You agree to waive any right you may have to
3. If Infochimps is obligated to go to court or arbitration to enforce any of its rights, or to collect any fees, you agree to reimburse Infochimps for its legal fees, costs and disbursements if Infochimps is successful.
1. You specifically agree and acknowledge that you have, in addition to the terms of this Agreement, reviewed the terms of the Terms of Use and any other terms or agreements which may be incorporated by reference therein, and to the extent of their incorporation in this Agreement you agree to be bound by them.
2. Infochimps’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
3. This Agreement is personal to you and is binding upon your heirs, executors and legal representatives, as the case may be, and is not assignable by you without Infochimps’s prior written consent. Infochimps may assign this Agreement without your consent to any other party so long as such party agrees to be bound by its terms.
4. If all or part of any provision of this Agreement is wholly or partially unenforceable, the parties or, in the event the parties are unable to agree, a court of competent jurisdiction, shall put in place of such whole or part provision an enforceable provision or provisions, that as nearly as possible reflects the terms of the unenforceable whole or part provision.
5. This Agreement can be amended by the written agreement of the parties or by Infochimps posting amendments on the Upload portion of the Site. Continued provision of Content or failure to terminate this Agreement within thirty (30) days of posting of such amendment will be deemed to be acceptance of the amendment by the Supplier and it will be incorporated by reference into this Agreement.
If you have concerns relating to this Agreement, please contact Infochimps at help@infochimps.org or via phone at (512) 553-5631.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF INFOCHIMPS AGREEING TO PROVIDE A MEANS FOR THE SALE OR LICENSE OF YOUR ACCEPTED CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND INFOCHIMPS, WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND INFOCHIMPS RELATING TO THE SUBJECT OF THIS AGREEMENT.