CRESCO DATA TERMS OF SERVICE
These Terms of Service apply to the provision by Cresco Data Australia Pty Ltd ("Cresco") of any and all Cresco's services ("Services") agreed between Cresco and its customer ("Customer"):
1.1 In these Terms of Service, the following words and expressions have the following meanings unless the context requires otherwise:
(a) "Affiliate” means, in relation to a party, any other entity which directly or indirectly Controls, is directly or indirectly Controlled by or is under direct or indirect common Control with that party from time to time.
(b) "Business Day" as used in this Agreement means Monday to Friday, excluding gazetted public holidays in Singapore.
(c) "Control" means, in relation to a person, the direct or indirect ownership of more than 50% of the voting capital or similar right of ownership of that person or the legal power to direct or cause the direction of the general management and policies of that person, whether through the ownership of voting capital, by contract or otherwise, and "Controls" and "Controlled" are to be interpreted accordingly.
(d) "Cresco Data Platform" means Cresco’s cloud-based e-commerce software platform that allows a customer to automate the delivery of product information to Publishing Destinations, which may include comparison shopping engines and product listing advertisements.
(e) "Intellectual Property Right" means: (a) copyright, patents, database rights and rights in trademarks, designs, know-how and confidential information (whether registered or unregistered); (b) applications for registration, and the right to apply for registration, for any of these rights; and (c) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world.
(f) "Product Data" means all information and materials related to Customer’s products that Customer provides to Cresco or uploads to the Cresco Data Platform or otherwise stores in the Cresco Data Platform, or that Customer directs Cresco to collect on its behalf, including image files, text, stock availability, templates, product descriptions, trade and service marks and other related information.
(g) "Publishing Destination" means the third party marketplaces, search engines, shopping sites, social commerce sites, digital ad networks, eCommerce Store and other third party channels supported by Cresco from time to time that are the subject of the Services, as set out in each SOW.
(h) “Source Data” The Source Data is defined as the platform, website, system or files where Cresco Data obtains the Customer data
(i) “Cresco Data Management Portal” is defined as the online graphical user interface where Cresco Data Customers can view their Cresco Data Services.
(j) “Neto Platform” The neto Platform refers to the multi-channel eCommerce Platform that powers The Customer’s eCommerce Services
(k) “Application Services” The Application Services refer to the Cresco powered add on’s that automate and sync The Customer data between The Neto Platform and Publishing Destinations
2. APPLICATION OF THESE TERMS OF SERVICE
2.1 These Terms of Service set forth the terms and conditions applicable to Cresco's “Application Services” or Add’on’s (“Services”) on The Neto Platform.
2.2 Cresco may amend, vary or supplement these Terms of Service, the Cresco Support Policy and/or the Cresco Personal Data Protection Policy at any time and any such amendment, variation or supplement will take effect as from the date specified in such notice. Any such notice given by Cresco in accordance with this Agreement by posting on Cresco's website and/or in any other manner deemed appropriate by Cresco will constitute good and sufficient notice thereof to Customer and will be deemed to have been received by Customer in accordance with this Agreement.
3. CRESCO OBLIGATIONS
3.1 Cresco will use commercially reasonable efforts to perform the Services and to deliver any deliverables in accordance with agreed specifications as set out in the Service Overview ("Deliverables").
3.2 In collecting, processing, recording, storing, registering, disclosing, transferring and using Personal Data (as defined in Clause 4.1(c) below), and in maintaining records, Cresco will comply fully with all applicable laws and regulations.
4. CUSTOMER OBLIGATIONS
4.1 General Obligations of Customer:
(b) Customer will provide all Product Data in the languages and the format(s) specified by The Publishing Destination including applicable tax rates and information relating to the products and services of Customer, for purposes of providing the Services, and ensure that all Product Data will at all times be complete, accurate, up-to-date and compliant with applicable law, and the use by Cresco of the Customer Materials will not infringe the Intellectual Property Rights of any other person.
(c) Customer will ensure that Product Data does not include any data, whether true or not, about an individual who can be identified from that data, or from that data and other information to which the organisation has or is likely to have access ("Personal Information"), and will ensure Cresco's collection, storage, processing, use and transfer of Personal Information will not breach or cause Cresco to breach the terms of Cresco Personal Data Protection Policy (which terms are deemed to be incorporated herein by reference and will be made part of this Agreement).
(e) Customer will be solely responsible for the goods and services that it offers for sale, including ensuring it has the right to sell all goods and/or services (which must not be counterfeit goods or otherwise infringe the copyright, trademark or other rights of third parties) and to use all Product Data, fulfilling all buyer orders, complying with its obligations to buyers (including by delivering all products and providing all services within the required time after Customer has received payment and providing buyer support in local languages), and the accounting and payment of all applicable taxes, levies and duties in connection with the sale, import, export and delivery of the products and services that it sells.
(f) Customer will not (and will procure that its directors, employees, agents and contractors will not) use any knowledge of the Cresco Data Platform and Cresco's business for their own benefit or the benefit of any other person or entity, or divulge to others such knowledge, or disparage Cresco or the Cresco Data Platform.
(g) In connection with its obligations under this Agreement, Customer will comply with applicable laws, including those governing the sale of goods and services, and those relating to anti-bribery and corruption (including the UK Bribery Act, the US Foreign Corrupt Practices Act and the Singapore Prevention of Corruption Act), and will have in place all policies and procedures needed to ensure compliance with such applicable laws.
(h) Customer will defend, indemnify and hold harmless Cresco and its Affiliates from any and all claims by any other party (including reasonable attorneys' fees and costs of litigation) resulting from Cresco’s use of the Customer Materials and Product Data provided by Customer in the manner contemplated under this Agreement; or any claims resulting from Customer's access to and use of the Cresco Data Platform in a manner that is inconsistent with or is otherwise not authorised by Cresco under this Agreement.
4.2 Publishing Destinations and Third Party Product Data Sources:
(a) Customer hereby authorises Cresco on Customer’s behalf to access the Publishing Destinations to retrieve and post information in the course of performing the Services.
(b) Customer is solely responsible for opening and maintaining in good standing all necessary accounts with Publishing Destinations (including by paying all associated fees and expenses) and agreeing to and complying with all applicable requirements of and obligations imposed by such Publishing Destinations. Any fees and expenses payable to the Publishing Destinations will be payable by Customer directly to the relevant Publishing Destinations.
5. ACCESS TO CRESCO DATA PLATFORM AND SUPPORT
5.1 Subject to Customer’s compliance with its obligations under this Agreement, Cresco hereby grants to Customer a non-exclusive and non-transferable licence to access the Cresco Data Platform during the validity of this Agreement for the sole purpose of enabling the sale of the Customer’s products via the Publishing Destinations in the manner contemplated under this Agreement.
5.2 Customer acknowledges that its licence to access and use the Cresco Data Platform under this Agreement is conditional upon its compliance with the following:
(a) If any features of the Cresco Data Platform are subject to password protection, Customer will ensure that all its users will keep and maintain a secure password and will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Cresco Data Platform and, in the event of any unauthorised access or use, Customer will promptly notify Cresco.
(b) Customer will be responsible for any activities carried out under Customer’s account on the Cresco Data Platform.
(c) Customer will not access, store, distribute or transmit any viruses or any harmful or malicious code, or otherwise use the Cresco Data Platform or the Services in any way that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, or that facilitates illegal activity, or that is discriminatory, or that is otherwise illegal or causes damage or injury to any person or property, or that infringes the rights of any other person.
(d) Customer will not interfere with, restrict or limit the functionality or performance of the Cresco Data Platform or attempt to do so, or take any action that negatively affects Cresco’s ownership rights in and to the Cresco Data Platform.
(e) Customer will not place an unreasonable or disproportionately large load on the Cresco Data Platform, as determined by Cresco in its sole discretion (including by uploading a number of keywords and/or stock keeping units in excess of the limits imposed by the applicable SOW).
(f) Customer will not attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, distribute, attempt to reverse compile, disassemble or reverse engineer all or any portion of the Cresco Data Platform.
(g) Customer will not access all or any part of the Cresco Data Platform in order to build a product or service which competes with the Services.
5.3 Customer further acknowledges that all rights (including Intellectual Property Rights), title and interest in and to the Cresco Data Platform belong to and remain the sole and exclusive property of Cresco. Cresco grants, and Customer receives, no rights in and to the Cresco Data Platform by implication or otherwise, except those rights expressly granted in Clause 5.1. If Customer's access to and use of the Cresco Data Platform in the manner contemplated under this Agreement is found to infringe, or in Cresco’s opinion is likely to be found to infringe, any Intellectual Property Right of a third party, Cresco will, at its expense and option:
(a) obtain the right for Customer to continue to have access to and use of the Cresco Data Platform in the manner contemplated under this Agreement;
(b) modify Customer's access to and use of the Cresco Data Platform in the manner contemplated under this Agreement so that it becomes non-infringing; and
(c) if neither (a) or (b) is commercially feasible, terminate this Agreement and refund to Customer any pre-paid, but unused Fees.
5.4 Subject to Clause 5.5 below, Cresco will, at its expense defend a claim brought against Customer by a third party alleging that Customer's access to and use of the Cresco Data Platform in the manner contemplated under this Agreement infringes a patent, copyright or trademark registered (“Infringement Claim”) provided that Customer must notify Cresco promptly of any threatened or pending Infringement Claim and give Cresco reasonable assistance and information in the defence or settlement of the Infringement Claim. Cresco will have sole control over the defence and settlement of the Infringement Claim. Customer’s counsel will have the right to participate in the defence of the Infringement Claim, at Customer’s own expense. Customer must not, without the prior written consent of Cresco, settle, compromise or consent to the entry of any judgment with respect to the pending or threatened Infringement Claim.
5.5 Cresco will have no obligation to Customer with respect to any Infringement Claim arising out of:
(a) any modification by Customer to its access to and use of the Cresco Data Platform that is unauthorised or not performed by Cresco and for which the Infringement Claim could have been avoided in the absence of such modification;
(b) any combination, operation, or use of Customer's access to and use of the Cresco Data Platform with any other tools or process and for which the Infringement Claim could have been avoided in the absence of such combination, operation, or use;
(c) any specifications that Customer provides to Cresco for any Services; or
(d) damages attributable to the value of the use of a Service or product provided by Cresco under this Agreement or any third party software.
6. CRESCO SUPPORT:
(a) Cresco offers, without additional cost to Customer, "Basic Support" which includes a web based information centre containing guides on publishing destinations, frequently asked questions and other information needed by customers, and assistance with Incidents reported via email to email@example.com. Cresco support will respond within 2 Business Days of Cresco's receipt of the report on the Incident.
7.1 recurring fees which are payable monthly in advance and will be charged via The Neto Platform
7.2 Unless Fees are expressly stated Cresco may change its fees from time to time.
Each party (“Recipient”) undertakes to the other party (“Disclosing Party”) to treat as confidential all information, in any medium or format, which the Recipient receives from the Disclosing Party, either directly or from any other person, which concerns the business, operations, customers or suppliers of the Disclosing Party and which is marked as confidential; identified in advance of disclosure by the Disclosing Party as being confidential; or ought reasonably to be understood by the Recipient to be confidential (“Confidential Information”) but will not include (a) any information which is in or subsequently enters the public domain other than as a result of a breach of this Clause 7; (b) has been or is subsequently received by the Recipient from a third party which is under no confidentiality obligation in respect of that information; (c) has been or is subsequently independently developed by the Recipient without use of the Disclosing Party’s Confidential Information; or (d) was previously known to the Recipient free of any obligation to keep it confidential. The terms and conditions of this Agreement will constitute Confidential Information of each party. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Disclosing Party to its employees, consultants and advisors on a need-to-know basis, or where the Recipient is required to do so by applicable law or by any competent regulatory authority. This Clause 7 will remain in full force and effect notwithstanding the termination of any SOW or this Agreement.
9. DISCLAIMER AND LIMITATION OF LIABILITY
9.1 Cresco will not be liable to Customer for any delay or non-performance of its obligations under this Agreement to the extent that it arises directly from any cause or causes beyond its reasonable control, or for any error, act or omission of Customer, its agents, subcontractors, consultants or employees, including a failure to provide the required Product Data, to establish or operate the necessary Publishing Destination accounts, or to provide complete and accurate information. If and to the extent that Cresco’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer, its agents, subcontractors, consultants or employees, including a failure to provide the required Product Data or to establish or operate the necessary Publishing Destination accounts, then (without prejudice to Cresco’s other rights and remedies) such failure or delay in performance on the part of Cresco will not constitute a breach of this Agreement and Cresco will not be liable for any costs, charges or losses sustained or incurred by Customer that arise from such failure or delay.
9.2 The Services will involve transmission of Customer Material over networks that are not owned, operated or controlled by Cresco. Cresco is not responsible for any Customer Material lost, altered, intercepted or stored across such networks.
9.3 Subject to Clause 8.4 and to the maximum extent permitted by applicable law, the Services and the Cresco Data Platform are provided “as is” and “as available” and save for the warranties and remedies in this Agreement, Cresco makes no warranties, and specifically excludes all other warranties and remedies, whether in writing, oral, express, implied or statutory, with respect to the Services or the Cresco Data Platform, including any warranties of (a) merchantability, satisfactory quality or fitness for a particular purpose, (b) that the Services or the Cresco Data Platform will be uninterrupted, defect-free or error-free, (c) as to the accuracy, timeliness, truthfulness, completeness or reliability of any content obtained from any Publishing Destination or third party interface, or (d) any warranties that the Services will generate any particular level of sales, revenues or exposure for Customer.
9.4 In no event will Cresco be liable to Customer or any other party for (a) any direct or indirect loss of use, revenue, actual or anticipated profits, business or goodwill resulting directly or indirectly from Customer's use of, or its inability to use, the Services and the Cresco Data Platform; and (b) any special, incidental or consequential damages of any nature, that may arise from any breach of warranty or condition or under any legal theory, whether in contract, tort (including negligence), breach of statutory duty or otherwise. Customer's sole and exclusive remedy for any cause of action whether in contract, tort (including negligence), breach of statutory duty or otherwise is a claim for damages which in no event will exceed USD10,000 or the Fees received by Cresco from Customer under this Agreement, whichever is the lower.
9.5 No action arising out of this Agreement, regardless of the form of action, may be brought by Customer more than 12 months after the action accrued.
9.6 Nothing in this Agreement seeks to or will limit or exclude liability for death or personal injury caused by negligence, fraud or for any other type of liability that cannot be limited or excluded under applicable law.
10.TERM AND TERMINATION
10.1 Each Term will commence on acceptance of The Terms of Service ach SOW, incorporating the terms hereof, will take effect when it is signed by Cresco and Customer and unless otherwise terminated in accordance with Clause 9.2, will continue thereafter for an initial term of 12 months ("Initial Term"). On expiry of the Initial Term and unless otherwise terminated in accordance with Clause 9.2, each SOW will automatically renew for successive terms of 12 months each (each, a "Renewal Term"). Each Renewal Term will be subject to this Agreement, except that the Fees that Cresco is entitled to charge for the Services rendered during the Renewal Term will be based on its then prevailing price list.
10.2 (a) Either party may terminate this Agreement without any notice
10.3 Upon expiration or termination of this Agreement:
10.4 all rights granted hereunder by Cresco to Customer will automatically terminate, and any property of each party in possession of the other party will be returned.
10.5 Termination of this Agreement will not discharge or otherwise affect any pre-termination obligations of either party under this Agreement at the time of termination or any provisions hereunder which are intended to survive the termination of this Agreement and/or necessary for the interpretation or enforcement of any rights under this Agreement.
11.1 Customer may not assign, sublicense, transfer or otherwise dispose of any of its rights, or subcontract, transfer or otherwise dispose of any of its obligations under this Agreement without Cresco's prior written consent.
11.2 Customer consents to Cresco’s display of the name and personal testimonials of Customer and/or identification of Customer as a customer of Cresco on its website, through a press release issued by Cresco and in any other promotional materials. Cresco will provide Customer with a reasonable opportunity to review and request revision of, or changes to, such materials with respect to the use of, placement, depiction and context of Customer's name and/or logo.
11.3 Customer may, with Cresco’s prior review and approval of a “mark-up” or draft, identify itself as a customer of Cresco on its website and other promotional materials used by Customer. Customer will provide Cresco with a reasonable opportunity to review and request revision of, or changes to, such materials with respect to the use of, placement, depiction and context of Cresco name and/or logo.
11.4 This Agreement, as may be revised from time to time, constitutes the entire agreement and understanding of Cresco and Customer relating to the subject matter of this Agreement, and supersedes any previous agreement or understanding between the parties in relation to such subject matter.
11.5 Nothing in this Agreement will be deemed to constitute a partnership between Cresco and Customer, nor constitute either party as the agent of the other party for any purpose.
11.6 The rights of each party under this Agreement may be exercised as often as necessary, are cumulative and not exclusive of rights or remedies provided by law and may be waived only in writing and specifically. Delay in the exercise or non-exercise of any right is not a waiver of that right.
11.7 If any provision of this Agreement is found to be invalid or unenforceable then such invalidity or unenforceability will not affect the other provisions of this Agreement, which will remain in full force and effect.
11.8 A person who is not a party to this Agreement has no right to rely upon or enforce any term of this Agreement.
11.9 Each party represents and warrants to the other party that it has the power to execute and deliver this Agreement and to perform its obligations under it and has taken all action necessary to authorise execution and delivery and the performance of its obligations.
11.10 Any notice or other communication to be given under this Agreement will be in writing and delivered by email to Customer's designated email account. Any such notice or communication addressed and so despatched to Customer is deemed to have been received by Customer (a) in the case of despatch by e-mail immediately upon transmission by Cresco; on the date and at the time it was so delivered
11.11 This Agreement is subject to, and is construed in accordance with, the laws of Singapore.
11.12 Customer and Cresco agree that all claims and disputes relating to or arising from this Agreement, including any question regarding the existence, validity or termination of this Agreement will be resolved:
(a) by referring such dispute to the Small Claims Tribunal, if the dispute falls within the jurisdiction of the Small Claims Tribunal;
(b) if Cresco and Customer so agree, by jointly referring such dispute for final resolution by arbitration at the Singapore International Arbitration Centre ("SIAC") in accordance with SIAC's arbitration rules (“Rules”) for the time being in force, which Rules are deemed to be incorporated by reference into this Clause except as such Rules conflict with the provisions of this Clause, in which event the provisions of this Clause will prevail. The arbitration panel will comprise a single arbitrator to be nominated jointly by Cresco and Customer, or failing such joint nomination, by the Chairman for the time being of the SIAC. The language to be used and all written documents provided in any such arbitration will be in English. Nothing in this Clause precludes Cresco from applying for urgent interlocutory relief from any court of competent jurisdiction. Customer agrees that any arbitration award made pursuant to arbitration commenced pursuant to this Clause may be enforced by Cresco against assets of Customer wherever those assets are located or may be found, and a judgement upon any such arbitration award may be entered into by any court of competent jurisdiction thereof and for this purpose, Customer expressly submits to the jurisdiction of any such court; and
(c) by referring such dispute to any court of competent jurisdiction and, for this purpose, Customer hereby submits to the non-exclusive jurisdiction of the Courts of Singapore with respect to any and all claims and disputes between Cresco and Customer relating to or arising from this Agreement or any SOW provided that Customer will not without Cresco's prior written consent commence or prosecute any action or proceeding in any jurisdiction outside Singapore with respect to any such claim or dispute.
11.13 Without prejudice to Cresco’s right to serve process in any other manner permitted by law, Cresco may effect service on Customer of any writ, summons or other process and delivered by email to Customer's designated email account. Any such notice or communication addressed and so despatched to Customer is deemed to have been received by Customer (a) in the case of despatch by e-mail immediately upon transmission by Cresco; on the date and at the time it was so delivered