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End User License Agreement

This End User License Agreement is entered into between RootsRated, Inc. d/b/a Matcha, a Delaware corporation (“Matcha”), and you and governs the use by you and your authorized employees, agents and/or contractors (collectively, “you” or “your”) of the Matcha Login Credentials in order to access the Matcha Services (this “EULA”). If you have entered into an order form with Matcha setting forth pricing and other terms (your “Order Form”), this EULA is incorporated therein by reference. This EULA, and your Order Form (if any), shall also be referred to as this “Agreement.” Any references to your Order Form shall only apply to you so long as you have an Order Form with Matcha. “Matcha Services” or the “Services” means provision of the Matcha Login Credentials to access and use the Matcha Content Cloud and/or any other services set forth on your Order Form. “Login Credentials” means the unique username and password provided by Matcha to you. “Matcha Content Cloud” means Matcha’s proprietary content software that allows you to plan, staff, and execute content marketing campaigns across multiple platforms by displaying content licensed from Matcha, which Matcha either owns or licenses from third party licensors (the “Content Licensors”), but excludes content owned or licensed separately by you (“Client Content”) on a digital property(ies) of your choosing (the “Approved Client Property(ies)”). In the event of a conflict between the terms of your Order Form and this EULA, the terms of your Order Form shall control.

  1. Licensed Services.
    1. Matcha hereby grants to you, on the terms and conditions set forth herein, a limited, non-exclusive, non-assignable, non-sublicensable, revocable right and license to use the Matcha Login Credentials in order to access and use the Matcha Services and to display the Matcha Content on the Approved Client Property during the Term (as defined in Section 10 below) of your Agreement in accordance with the terms and conditions of your Agreement. All rights not expressly granted to you in this Agreement are reserved by Matcha.
    2. You agree that:
      1. You shall not copy and/or distribute the Matcha Login Credentials or provide access to the Services to anyone outside of permissioned employees, agents and/or contractors, and shall protect the Services from unauthorized access, modification or distribution;
      2. In the event that you become aware of the Login Credentials being used by a person not authorized to access the Services, or become aware of any other breach of security, you shall take prompt action to remedy such breach and promptly notify Matcha thereof;
      3. You will not use the Matcha Content or the Services in contravention of any laws or regulations, including, but not limited to, intellectual property law and/or privacy laws;
      4. Within twenty-four (24) hours of receipt of written notice from Matcha, you will remove from your Approved Client Property(ies) any Matcha Content that Matcha asks you to remove;
      5. You shall not download, store (beyond the Term of this Agreement), modify, copy, redistribute, sell, re-sell, lease, assign or create derivative works from the Services and/or any Matcha Content, and shall not reverse engineer, disassemble, decompile, publicly expose, distribute or modify the source code underlying the Services;
      6. You shall not use the Services in a manner that adversely impacts the stability of Matcha’s servers or adversely impacts the behavior of other applications using the Matcha platform; and
      7. You will not use the Services to build or support, or assist a third party in building or supporting, products or services competitive to Matcha.
    3. You agree that you will not remove the cookie underlying each image and/or article provided to you, as such cookie powers Matcha’s analytics dashboard within the Matcha Content Cloud (the “Analytics Cookie”). Matcha will use the Analytics Cookie to track anonymized data on usage of Matcha Content, measure interest in certain topics, and capture information on page views, uniques, browser information, IP address, referrals from paid search, and engagement metrics, such as time on site. Separately, Matcha will also collect personally identifiable information (“PII”), including name, demographic information and social actions (i.e. likes, shares, and Tweets), from third party data providers in order to power an insights database that allows you to view and analyze customer engagement with your content. Finally, Matcha may compile statistical information (i.e. page views and uniques) with respect to the Matcha Content, and may make such information available to your particular Content Licensors so that they may track their content’s performance on an aggregated basis (the “Licensor Performance Data”); provided, however, such Licensor Performance Data shall not be associated with you. Matcha retains all intellectual property rights in the Licensor Performance Data.  Please see the Matcha Privacy Policy, located at www.getmatcha.com/privacy for more details on Matcha’s collection, use, disclosure and other processing of end user data. Matcha may update its Privacy Policy from time to time, in its sole discretion, and post an updated version. You are responsible for ensuring that your relevant privacy notices are consistent with the Matcha Privacy Policy.
    4. You agree that, to the extent Matcha can no longer provide access to a portion of the Matcha Content as defined in your Order Form, Matcha may replace said Matcha Content with substantially similar Matcha Content within ninety (90) days.
    5. With respect to any images in the Matcha Content, you may not use such images:
      1. for pornographic, defamatory or other unlawful purposes;
      2. in electronic templates used to create electronic or printed products;
      3. in physical or digital retail products, such as e-cards, calendars, posters, or screensavers;
      4. for the purpose of enabling file-sharing of the image file;
      5. in logos, trademarks, services marks or any other branding or identifiers; or
      6. in connection with a sensitive, unflattering or controversial subject, unless you include a statement (as a text overlay on the image) that the image is used for illustrative purposes only and the individual is a model.
      7. in such a manner that knowingly infringes upon any third party’s trademark or intellectual property rights;
      8. in a way that places any person depicted in the Image in a bad light or in a way that they may find offensive – this includes, but is not limited to the use of images that depict a recognizable person;
      9. in “adult oriented” products;
      10. in products related to or promoting tobacco or drug use;
      11. in products related to or promoting politicians, political ideologies or positions; and/or
      12. in merchandise relating to pharmaceutical, healthcare, herbal or medical products, or the use thereof.
  2. Intellectual Property.  You acknowledge and agree that (i) as between Matcha and you, Matcha owns all right, title and interest in the Matcha Services (excluding the Matcha Content which is owned or licensed by the Content Licensors but including all other Matcha Content and the Matcha Cloud) and Matcha’s name and trademarks, whether now existing or which may subsequently come into existence (collectively, the “Matcha Property”), (ii) nothing in this Agreement shall confer in you any right of ownership in the Matcha Property and/or the Matcha Content, and (iii) any goodwill generated through your use of the Matcha name and trademarks will inure solely to Matcha. All suggestions, feedback, enhancement requests, recommendations or other input provided by you or any other party relating to the Services shall be owned by Matcha and you hereby do and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership.
  3. Notice, Credit and Branding.
    1. You agree to publish any copyright notice, footnote or disclaimer included with the Matcha Content by Matcha or the Content Licensor, as applicable.
    2. You shall maintain a link back to the original article or image if Matcha or the Content Licensor has included such link.
    3. You will attribute Matcha or the original Content Licensor, as applicable, as the source and will not replace or alter any byline provided by Matcha or the original Content Licensor.
    4. You will only use logos of Matcha or the original Content Licensor by seeking written permission from Matcha on a case-by-case basis.
    5. You hereby permit Matcha to use your trademarks in the marketing and promotion of the Matcha Services.
  4. Confidentiality.  The parties acknowledge that each party may have access to confidential and proprietary information, in any form, whether written or oral, of a business, financial or technical nature, which is (i) marked or otherwise indicated as being, or (ii) is, or ought reasonably to be known to be confidential (“Confidential Information”). Each receiving party agrees to preserve and protect the confidentiality of the Confidential Information of the disclosing party, and the receiving party will use Confidential Information of the disclosing party solely in connection with the performance of this Agreement. The receiving party agrees not to disclose the Confidential Information of the disclosing party without the prior written consent of the other party; provided, however, that the receiving party may disclose to any other party information which: (i) is or becomes publicly known through no fault of the receiving party; (ii) is discovered or developed independently of any involvement with the disclosing party; (iii) is learned through legitimate means other than from the disclosing party; or (iv) was known to the recipient before receipt from the disclosing party.
  5. Fees.
    1. Fees shall be billed in accordance with the terms set forth in your Order Form. Unless otherwise stated in your Order Form, all invoices shall be due within thirty (30) days of receipt, subject to a late charge of five percent (5%) of the balance due per month. In all cases, the amounts due under this Agreement shall be paid by Client to Matcha in full without any withholding or right of set-off or deduction.
    2. The parties shall be responsible for their own respective taxes including, but not limited to, their own income taxes, sales taxes and/or VAT.
  6. Modifications.
    1. Matcha reserves the right at any time to make necessary modifications and/or improvements to the Services with or without notice. Unless Matcha provides otherwise, the then-current EULA shall also apply to your use of any modified or new version of the Services, or your use of any updates, upgrades, changes, enhancements or new features added to the Services that may be made available by Matcha from time to time.
    2. This EULA may be modified from time to time, and shall be indicated by the “Date Updated” above (the “Modifications”). Continued use of the Services past the Modifications constitutes acceptance of the Modifications.
    3. If you do not agree with any such Modifications, you may provide prompt notice in writing to support@getmatcha.com. Should the parties be unable to reach a mutually acceptable compromise, you may terminate this Agreement on the effective date of the Modifications, and any unused fees shall be refunded to you.
  7. Representations and Warranties.
    1. Each party represents and warrants to the other party that it has the power and authority to enter into the Agreement. Matcha warrants that it will provide the Services in a manner consistent with generally accepted industry standards.
    2. NOTWITHSTANDING THE FOREGOING, Matcha DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR ARE RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1, THE SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND. Matcha EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, NON-INFRINGEMENT AND/OR TITLE. YOU ACKNOWLEDGE THAT Matcha DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND ANY THIRD PARTY PLATFORMS OR SYSTEMS, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH SYSTEMS. Matcha IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
  8. Limitation of Liability.  Matcha SHALL NOT BE LIABLE FOR ANY DAMAGES, COSTS OR LOSSES ARISING OUT OF ANY MODIFICATIONS MADE TO THE IMAGES OR THE CONTEXT IN WHICH YOU USE THE IMAGES, AND YOU SHALL INDEMNIFY Matcha FOR ANY LOSSES RESULTING FROM THE FOREGOING. IN ADDITION, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE), OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFITS, LOSS OF SALES OR BUSINESS, LOSS OF CONTRACTS OR CUSTOMERS, OR LOSS OF GOODWILL. EXCEPT FOR LIABILITY (A) UNDER SECTION 9 BELOW, NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES HEREUNDER SHALL EXCEED THE TOTAL AMOUNT OF FEES DUE AND PAYABLE DURING THE SIX MONTH PERIOD OF THE TERM OF YOUR AGREEMENT PRECEDING THE EVENT GIVING RISE TO SUCH DAMAGES.
  9. Indemnity.
    1. You agree to indemnify and hold harmless Matcha against any loss, damages or cost, including reasonable attorney’s fees, incurred in connection with any claim or action brought against Matcha to the extent that such claim or action is based on or arises from (i) your use of the Services outside the scope of this Agreement; (ii) any breach or alleged breach by you of your representations, warranties, or covenants provided herein; and/or (iii) images that have been modified by you.
    2. Matcha agrees, at its own expense, to defend, or at its option to settle, any claim or action brought against you to the extent that such claim or action is based on or arises from (i) any claim that use of the Matcha Services and/or the Matcha Content as contemplated under this Agreement infringes any third party’s intellectual property rights and/or (ii) Matcha’s breach or alleged breach by Matcha of its representations, warranties, or covenants provided herein, and to indemnify you against any and all damages and costs, including reasonable legal fees, that a court awards against you under any such claim or action.
    3. Matcha shall have no liability respecting any claim of infringement or breach as aforesaid to the extent such claim is based upon the combination, operation or use of the Services and/or Matcha Content (i) with other equipment or software not supplied by Matcha and/or the Client Content, or (ii) in a manner not consistent with Matcha’s instructions and/or the terms of this Agreement. If Matcha reasonably believes that your use of any portion of the Services is likely to be enjoined for the aforementioned reasons, then Matcha may, at its expense: (i) procure for you the right to continue using the Services; (ii) replace the same with other services or other material of equivalent functions that is not subject to a legal action; (iii) modify the applicable Services so that there is no longer any infringement or breach; and/or (iv) terminate the Services and refund any unused fees paid in advance.
    4. Each party seeking indemnification hereunder (the “Indemnified Party”) will provide the party providing indemnification hereunder (the “Indemnifying Party”) with (i) prompt written notice of any claim for indemnification under this Agreement (provided, however, that any failure to provide such notice shall not relieve the Indemnifying Party of its indemnification obligations hereunder unless the Indemnifying Party’s ability to defend such claim is actually prejudiced by such failure), and (ii) proper and full information and reasonable assistance to defend and/or settle any such claim. The Indemnified Party shall have the right to participate fully, at its own expense, in the defense of an indemnified claim. Any compromise or settlement by the Indemnifying Party of an indemnified claim shall require the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld or delayed. An Indemnifying Party, in settling an indemnified claim, shall not make any admission of wrongdoing on behalf of any Indemnified Party or impose any obligation on any Indemnified Party without the Indemnified Party’s prior written approval.
  10. Term and Termination.
    1. This Agreement becomes effective on the earlier of (i) the Effective Date in your Order Form or (ii) the date you use the Matcha Login Credentials to access the Services (the “Effective Date”), and shall remain in effect until the later of (i) the Expiration Date in your Order Form or (ii) the date you cease using the Services (the “Expiration Date”), unless earlier terminated in accordance with this Agreement  (the duration of which is the “Term”). Your Order Form shall automatically renew unless a party gives sixty (60) days’ written notice prior to the Expiration Date.
    2. Either party may terminate this Agreement (i) upon the other party’s material breach without cure within one (1) day of written request; (ii) if the other party files for bankruptcy and/or enters into a composition with its creditors; (iii) if an order is made for the winding up of the other; or (iv) if the other has a receiver, manager, or administrator appointed in respect of it.
    3. Matcha may suspend or shut down your Services if (i) you fail to pay in full any license fee within seventy-five (75) days of the invoice date (unless otherwise agreed in your Order Form); or (ii) you violate Sections 1.1, 1.2, 1.5 or 4 of this EULA. Matcha also reserves the right to charge you for all costs of collection, including collection agency and attorney’s fees and court costs.
    4. If, due to any reason within Matcha’s control, there is an interruption in the Services which continues for five (5) days following written notice to Matcha of such interruption, you may terminate your Order Form immediately, in which case Matcha’s only obligation to you will be to refund, pro rata, any unused fees paid in advance.
    5. On the effective date of cancellation or termination for any reason under this Agreement, you must erase or destroy any Matcha Content accessed or displayed by you. Your license to use the Matcha Content is temporary and specific to the Term in your Order Form.
    6. The following provisions shall survive termination or expiration of this Agreement: Sections 2, 4, 5, 7, 8, 9, 10.6, and 11.
  11. Miscellaneous.
    1. This Agreement and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of law.
    2. The parties hereby agree that any controversy, claim or dispute arising out of or relating to this Agreement, shall be settled by binding arbitration in Hamilton County, Tennessee. Such arbitration shall be conducted in accordance with the then prevailing commercial arbitration rules of JAMS Arbitration, Mediation and ADR Services (“JAMS”), with the following exceptions if in conflict: (a) one arbitrator shall be chosen by JAMS; and (b) each party to the arbitration will pay its pro rata share of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator. The award may be confirmed and enforced in any court of competent jurisdiction. The parties hereby agree that any federal or state court sitting in Hamilton County, Tennessee is a court of competent jurisdiction. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity; provided however, that nothing in this section shall be construed as precluding the bringing of an action for injunctive relief or other equitable relief. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.
    3. Neither party may assign the Agreement without the prior written approval of the other; provided that such approval shall not be required in connection with the acquisition of all or substantially all of the assets of Matcha by a third party.
    4. If one or more provisions of this Agreement are held to be unenforceable, then the balance of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable. The relationship between the parties shall be that of independent contractors, and neither you nor Matcha nor any consultant or contractor shall be deemed an agent or employee of any other party hereunder.
    5. Any notices shall be in writing and shall be deemed to have been delivered the next business day after sending by confirmed facsimile or email and/or three (3) business days after being sent by first class mail to the contact(s) in your Order Form. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof.