Master Platform Agreement
Terms and Conditions
Effective Date:September 1, 2023
These FEEEL Master Platform Agreement Terms and Conditions (these “Terms and Conditions”) are entered into by and between FEEEL NY Inc., a Delaware corporation (“FEEEL”), and the counterparty identified as the customer in the applicable Order Form (“Customer”). These Terms and Conditions, together with all Order Forms, constitute this “Agreement”. If you are accepting these Terms and Conditions or an Order Form on behalf of your employer or another entity (which will be deemed to the case if you sign up for an account on the FEEEL Platform (as defined below) using an email address from your employer or such entity), then the “Customer” under this Agreement will be such employer or other entity, and you represent and warrant that (a) you have read and understand this Agreement, (b) you have full legal authority to bind your employer or such entity to this Agreement and (c) you agree to this Agreement on behalf of your employer or such entity.
1. Definitions
The following terms, when used in this Agreement will have the following meanings:
“Affiliate” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Customer Materials” means any data, content or materials that Customer (including any Customer User) submits to its FEEEL Platform accounts.
“Customer User” means anyone that Customer allows to use its accounts for the FEEEL Platform, consisting of Customer’s employees and contractors (solely for purposes of providing services to Customer).
“Documentation” means FEEEL’s then-current standard usage documentation for the FEEEL Platform.
“Effective Date” means the date of the initial Order Form entered into between Customer and FEEEL.
“FEEELOnboarding” means the (a) capturing of on-site footage of Customer’s Venue(s) by FEEEL’s representatives using FEEEL’s specialized equipment (the raw, unprocessed video files captured with such equipment, the “Raw Footage”), (b) generation of VR Content for such Venue, and (c) uploading of such VR Content to the FEEEL Platform.
“Event Organizer” means any individual, organization or other third party that is seeking to book or that has booked a Venue, including event organizers and planners.
“FEEEL Platform” means the SaaS-based platform provided by FEEEL that allows venue owners and managers to promote and market their venues by making available to prospective event planners or booking users VR Content generated by FEEEL, as well as Customer Materials provided by Customer, as may be further described in the applicable Order Form.
“Order Form” means an ordering document or online order entered into between Customer and FEEEL, or online ordering flow completed by Customer, in each case that sets forth the applicable features of the FEEEL Platform to which Customer is subscribing, pricing therefor, Venues for which Customer may use the FEEEL Platform, Onboarding timing, and FEEEL Platform subscription term, and that references these Terms and Conditions.
“Third Party Platform” means any product, add-on or platform not provided by FEEEL that Customer elects to use with the FEEEL Platform.
“Venue(s)” means the venue(s) offered by Customer to be featured on the FEEEL Platform as set forth in each Order Form
“VR Content” means the specialized 3D renderings and adaptation to virtual reality (“VR”) content generated by FEEEL based on the Raw Footage and the Customer Materials, using FEEEL’s proprietary technology.
2. Onboarding and FEEEL Platform.
2.1 FEEEL Onboarding. Subject to this Agreement and the applicable Order Form, FEEEL will use commercially reasonable efforts to perform the FEEEL Onboarding for each Venue in accordance with the applicable Order Form.
2.2 Provision of FEEEL Platform. Subject to this Agreement and the applicable Order Form, FEEEL will use commercially reasonable efforts to make the FEEEL Platform available to Customer pursuant to this Agreement and the applicable Order Form, and hereby grants Customer a limited, non-exclusive right to access and use the FEEEL Platform solely for the promotion and marketing of Customer’s Venue(s) that are the subject of such Order Form. Customer may permit Customer Users to use the FEEEL Platform on its behalf. Customer is responsible for provisioning and managing its Customer User accounts, its Customer Users’ actions through the FEEEL Platform and their compliance with this Agreement.
2.3 Customer Responsibilities.
(a) Customer acknowledges that FEEEL’s provision of the FEEEL Platform and FEEEL Onboarding is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer’s Venue(s), personnel, cooperation and materials as reasonably required and any other access as may be specified in the applicable Order Form), and Customer will provide all such cooperation in a diligent and timely manner. Without limiting the foregoing, Customer will (i) make its Venue(s) available for FEEEL and its representatives to capture the Raw Footage at mutually agreed upon times and dates, (ii) provide access to all areas of the Venue(s) to be captured in the Raw Footage, (iii) clean, stage, and otherwise prepare such Venue(s) for Raw Footage capture; and (iv) obtain all rights and consents relating to the Venue(s) necessary for FEEEL and its representatives to capture the Raw Footage.
(b) Customer will (i) use commercially reasonable efforts to prevent unauthorized access to or use of its accounts for the FEEEL Platform and notify FEEEL promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the FEEEL Platform and (ii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the FEEEL Platform, including VR headsets. Customer will be solely responsible for its failure to maintain such equipment, software and services, and FEEEL will have no liability for such failure.
2.4 Technology Restrictions. The rights granted herein are subject to the following restrictions (the “Technology Restrictions”). Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the FEEEL Platform; (b) attempt to probe, scan or test the vulnerability of the FEEEL Platform, breach the security or authentication measures of the FEEEL Platform without proper authorization or wilfully render any part of the FEEEL Platform unusable; (c) use or access the FEEEL Platform to develop a product or service that is competitive with FEEEL’s products or services or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license, or assign the FEEEL Platform or otherwise offer the FEEEL Platform on a standalone basis; or (e) otherwise use the FEEEL Platform in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.
2.5 Affiliates. Any Affiliate of Customer will have the right to enter into an Order Form and this Agreement will apply to each such Order Form. With respect to any such Order Form, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that enters into such Order Form, and no other Customer entity has any liability or obligation under such Order Form
3. Fees
3.1 Fees. Customer will pay FEEEL the fees set forth in the applicable Order Form. Customer will pay those amounts due within thirty (30) days of the date of receipt of the applicable invoice (the “Payment Period”), unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified. Except as otherwise specified herein or in such Order Form, fees are quoted and payable in United States dollars, payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. If Customer disputes an invoice in good faith, it will notify FEEEL within the Payment Period and the parties will seek to resolve the dispute as soon as reasonably practicable. FEEEL may provide Customer with written notice of a change or increase in pricing for such Order Form at least sixty (60) days prior to the end of the then-current Order Form term, and such modified pricing will become effective thereafter at the time of the renewal.
3.2 Late Payment. FEEEL may suspend access to the FEEEL Platform immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date. If FEEEL has not received payment within five (5) days after the applicable due date, interest will accrue on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by FEEEL.
3.3 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of FEEEL. Customer will not withhold any taxes from any amounts due to FEEEL.
4. Privacy Rights and Choices
4.1 Ownership Rights. As between the parties, FEEEL exclusively owns all right, title and interest in and to: (i) the FEEEL Platform, (ii) the VR Content (including any moral rights thereof, whether the holder of such moral rights is FEEEL, Customer or Customer User) , Platform Data and FEEEL’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Raw Footage, Customer Materials and Customer’s Confidential Information. “Platform Data” means data collected by FEEEL regarding the FEEEL Platform that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the FEEEL Platform.
Notwithstanding the foregoing, in case it shall be determined by a competent court, that the VR Content or any part thereof is deemed to be owned by the Customer, then Customer hereby grants FEEEL an unlimited, perpetual, irrevocable, worldwide, royalties free, sublicensable license to use, reproduce, modify, adapt, publish, assign, distribute and resell the VR Content or any applicable part thereof, during the Term and thereafter for no additional charge.
4.2 Raw Footage and Customer Materials. Subject to this Agreement, FEEEL assigns to Customer its right, title and interest in the Raw Footage. Customer hereby grants FEEEL a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sublicensable right and license to: (i) use, reproduce, modify, adapt and publish the Raw Footage for purposes of (a) performing the Onboarding and providing the FEEEL Platform for Customer, and (b) during and after the term hereof, improving FEEEL’s products and services; and (ii) use, reproduce, modify, adapt, publish, assign, distribute and resell the VR Content for the purpose of (a) performing FEEEL obligations hereunder, and (b) during and after the term hereof improving FEEEL’s products and services.
4.3 Feedback. Customer may from time to time provide FEEEL suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the FEEEL Onboarding and/or FEEEL Platform. FEEEL will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. FEEEL will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
5. Confidentiality
Each party (the “receiving party”) agrees that it will use the Confidential Information of the other party (the “disclosing party”) solely in accordance with the provisions of this Agreement and it will not disclose the same to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 5 or the Technology Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
6. Warranties and Disclaimers
6.1 Warranty. Customer warrants that (a) it has the legal power and authority to enter into this Agreement; and (b) it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit FEEEL to use the same as contemplated hereunder.
6.2 DISCLAIMERS. THE FEEEL PLATFORM AND ONBOARDING ARE PROVIDED TO CUSTOMER “AS IS”. FEEEL DOES NOT PROVIDE ANY INDEMNITIES, WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, FEEEL DOES NOT REPRESENT OR WARRANT THAT THE FEEEL PLATFORM WILL BE ERROR-FREE, AND DOES NOT GUARANTEE THAT CUSTOMER WILL BE ABLE TO RENT OUT ANY VENUES TO ANY EVENT ORGANIZERS. FEEEL IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY PLATFORMS AND DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH.
6.3 No-Charge Products. FEEEL may offer certain features or services at no charge, including free accounts, trial use and pre-release, alpha or beta versions or features (collectively, “No-Charge Products”). Customer’s use of No-Charge Products is subject to any additional terms that FEEEL may specify. Except as otherwise set forth in this Section, these Terms and Conditions apply to No-Charge Products. FEEEL may modify or terminate Customer’s right to use No-Charge Products at any time. NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FEEEL DISCLAIMS ALL OBLIGATIONS, WARRANTIES AND LIABILITIES WITH RESPECT TO NO-CHARGE PRODUCTS, AND FEEEL’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER IN RESPECT OF NO-CHARGE PRODUCTS WILL BE US$100.
7. Indemnification
Customer will defend, indemnify and hold FEEEL and its Affiliates harmless against any actual or threatened claim, loss, liability, proceeding, governmental investigation or enforcement action arising out of or relating to [Customer’s breach of this Agreement, violation of law, negligence or willful misconduct] /[activities under this Agreement or Customer’s acts or omissions in connection with the FEEEL Product or Onboarding] (“Claim”). FEEEL and its Affiliates will cooperate as reasonably required in the defense of any Claim, at Customer’s expense. FEEEL reserves the right, at Customer’s expense, to retain separate counsel in connection with any Claim or, if Customer has not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim. Customer will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against FEEEL in connection with any Claim. Customer will also be liable to FEEEL for any costs and attorneys’ fees FEEEL incurs to successfully establish or enforce FEEEL’s right to indemnification under this Section.
8. Limitations of Liability
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL FEEEL BE LIABLE TO CUSTOMER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE, OR (B) ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
Customer is solely responsible for its interactions with Event Organizers. FEEEL is not involved in or a party to transactions with Event Organizers (including but not limited to the leasing of Venue(s) for events), and FEEEL is not a party to any disputes arising therefrom. FEEEL reserves the right, but does not have any obligation, to monitor disputes between Customer and Event Organizers. FEEEL will have no liability for Customer’s interactions with Event Organizers, or for any Event Organizer’s acts or omissions. Customer hereby releases FEEEL and its Affiliates from all claims, demands and damages arising out of or in any way connected with any disputes between Customer and any Event Organizers or other third parties related to Venue or events at Venues, including any damage, personal injury, death that may be connected to any such Venue or event, or any goods or services that may be made available at any such Venue or event.
9. Termination
9.1 Term. The term of this Agreement will commence on the Effective Date and continue until terminated as set forth below. The initial term of each Order Form will begin on the start date indicated in such Order Form and will continue for the term set forth therein. Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term. If Customer does not agree to automatic renewals, Customer may opt-out of automatic renewals by providing written notice to FEEEL within fourteen (14) days of the date of the initial Order Form.
9.2 Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
9.4 Survival. Upon expiration or termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the Technology Restrictions the terms and conditions relating to proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
10. Changes to This Privacy Policy
10.1 Publicity. Customer agrees that FEEEL may refer to Customer’s name and trademarks in FEEEL’s marketing materials and website; however, FEEEL will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email). If Customer does not agree to FEEEL’s use of Customer’s name or trademark in FEEEL’s marketing materials, Customer may opt-out of such use by providing written notice to FEEEL within fourteen (14) days of the date of the initial Order Form.
10.2 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. In addition, you agree that FEEEL may have any of its obligations performed through an Affiliate of FEEEL, provided that FEEEL will remain responsible for its obligations hereunder and will be liable for such Affiliate’s performance hereunder as if it were FEEEL hereunder. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
10.3 Amendment. FEEEL reserves the right in its sole discretion and at any time and for any reason to modify these Terms and Conditions. With respect to each Order Form, any modifications to these Terms and Conditions will become effective upon the date of Customer’s next renewal of such Order Form. It is Customer’s responsibility to review these Terms and Conditions from time to time for any changes or modifications. If Customer does not agree to the modified Terms and Conditions, Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s next renewal. Notwithstanding the foregoing, in some cases (e.g., to address compliance with laws, or as necessary for new features) FEEEL may specify that such modifications become effective during Customer’s then-current Order Form term. If the effective date of such modifications is during Customer’s then-current Order Form term and Customer objects to the modifications, then (as Customer’s exclusive remedy) in FEEEL’s sole discretion, FEEEL may (a) consider the amendment request rejected and have this Agreement continue without such amendment or (b) terminate the affected Order Form upon written notice to Customer (which may be sent by email), and FEEEL will refund to Customer any prepaid platform or subscription fees for the terminated portion of the applicable Order Form term. To exercise this right, Customer must provide FEEEL with notice of its objection within thirty (30) days of FEEEL providing notice of the modifications. Except as set forth in this Section, no amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties.
10.4 Waiver. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
10.5 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
10.6 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
10.7 Governing Law. This Agreement will be governed by the laws of the State of New York, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
10.8 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the Customer may be sent to the address listed on the Customer’s applicable Order Form or email address provided by Customer when Customer creates its FEEEL Platform account. Notices to FEEEL must be sent to the following:
FEEEL NY, Inc.
73 Hudson Street
New York, NY 10013
Attn: Legal
10.9 Entire Agreement. This Agreement (consisting of these Terms and Conditions and each Order Form) comprises the entire agreement between Customer and FEEEL with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by FEEEL, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. In the event of a conflict between these Terms and Conditions and an Order Form, the terms of the Order Form will control.
10.10 Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber-attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
10.11 Government Terms. FEEEL provides the FEEEL Platform, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the FEEEL Platform, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The FEEEL Platform was developed fully at private expense.
10.12 Interpretation. For purposes hereof, “including” means “including without limitation”.
