IX-ONE MEMBER SERVICES

(updated February 2024)

 

Rules, Regulations, and Conditions of Membership

 

IX-ONE is a membership-based platform and database established and maintained by The Data Council, LLC (the “Data Council”) that allows its members access to independently verified and standardized product information through its online information exchange. IX-ONE is a trademark and service of The Data Council.

 

The Data Council requires that before any person may provide information to be included in IX-ONE or gain access to the information maintained and supplied by The Data Council, such person must become a member of IX-ONE (each, a “Member” and the rights associated therewith, the “Membership”). Classes of members include: vendors/suppliers, brokers, distributors, and retailers (each, a “Class”). As a condition for acceptance of Membership, each Member accepts and agrees to be bound by the Rules, Regulations and Conditions set forth below, including any appendices that may be attached hereto (the “Rules”).

Section 1. Terms of Membership.

(a) Access to Database and Information – General.

Each Member acknowledges that by agreeing to become a Member within a specified Class, the Member will be granted access to IX-ONE and certain information contained therein (“Information”), based on such Class. So long as such Member maintains its status as a Member in good standing, such Member will have access to IX-ONE and the Information will be provided as a part of the Membership, subject to the applicable Rules as to the use of the Information. The Member, for itself and its Authorized Users (as defined below), agrees that its access to IX-ONE and the Information is subject to the terms and conditions of the IX-ONE End User License Agreement attached hereto as Appendix A (the “License Agreement”), and it shall not license, sell, or otherwise transfer, deliver, give or provide access to IX-ONE or to any of the Information to any person or entity which is not a Member, except for:

 

(i) access to non-material portions or selections of the items or data included in the Information, which are provided or delivered in the ordinary course of the business of the Member, and not with the purpose or effect of (a) allowing a non-Member to obtain any material benefit of Membership without formal acceptance as a Member; or (b) allowing a Member to access or utilize Information which such Member is not entitled to access or utilize under the terms of its Membership; or

 

(ii) access to portions or selections of the items or data included in the Information, at a time, in a form and for the purpose specifically authorized by The Data Council in a written communication to the Member. Such authorization may be delivered electronically, may be subject to such conditions and limitations as are specified by The Data Council (including being limited to a single instance), and may be withheld or denied (or if granted, revoked at any time) in the sole discretion of The Data Council.

 

Member further acknowledges it will receive access to certain Information (“Subscribed Data”) provided to The Data Council for inclusion in IX-ONE from certain third-party founding members of IX-ONE, and Member agrees (i) to use such Subscribed Data for its internal use only, (ii) not to create any derivative works or combine such Subscribed Data with any other database or system except for IX-ONE, (iii) not to disclose the Subscribed Data to any third parties, except for certain permitted uses as determined by The Data Council, and (iv) not to determine the group, category, subcategory hierarchy of such Subscribed Data, which Subscribed Data will be identified as such.

 

(b) Access to Database and Information Based on Class.

Based on Membership Class. The provisions of this Section 1 notwithstanding, each Member shall have access to the Information as follows:

(i) Vendor/Supplier. Each member who is classified as a Vendor/Supplier shall have access to review only

Information provided by such Vendor/Supplier. Vendor/Supplier Members may publicly share data sourced by such Vendor/Supplier Member so long as that data does not contain any analysis or information from IX-ONE.

(ii) Broker. Each member who is classified as a Broker shall receive access to information for only those Vendor/Suppliers which have allowed access to the Broker.

(iii) Distributor. Each Vendor/Supplier will identify certain product information for dissemination to each member classified as a Distributor, and each member who is classified as a Distributor shall receive access to all Vendor/Supplier and Broker information for products so identified.

(iv) Retailer. Each Vendor/Supplier shall identify product information that may be viewed by particular Retailers and each member who is classified as a Retailer shall receive access to all Vendor/Supplier and Broker information for products identified by such Vendor/Supplier for each Retailer.

 

(c) Membership Dues and Charges.

The Member will pay annual membership dues (“Dues”), the first installment of which will be invoiced and due and payable upon acceptance as a Member, and certain other fees, depending on a Member’s Class, as described in the Pricing Schedule attached hereto. Dues and other charges due from Members may be changed from time to time in the sole discretion of The Data Council. Any increases in Dues or other charges or fees due from Members shall take effect upon the renewal of the term of Membership. Per-SKU pricing for new items and limited captures will be set at the time of initial Membership and Member may not participate in any discount programs offered with respect to additional retailers that are added to IX-ONE. In the event Member wishes to discontinue any item(s) from its IX-ONE platform subscription prior to Member’s annual membership renewal, Member must notify The Data Council at least 30 days prior to Member’s renewal date. Absent such notice, Member’s IX-ONE subscription shall renew for an additional one-year term with all items, as per Section 1(g). For avoidance of doubt, Member shall be responsible and obligated to pay the annual rate for all items in Member’s IX-ONE subscription for which Member does not provide written notice of non-renewal to The Data Council at least 30 days prior to the end of the then-current term.

 

(d) User Information and Authorization.

Each Member shall be eligible to receive up to five (5) user accounts for representatives affiliated with the Member (each, an “Authorized User”) that will enable the Member to access IXONE and obtain the full benefits of Membership.

 

Additional Authorized User accounts may be licensed for an additional annual fee listed in Appendix A.

 

(e) Submission of Products. Each Supplier/Vendor Member agrees to provide catalog data on its products set forth in Appendix B in sufficient detail to create a sourcing record in IX-ONE. Each Suppler/Vendor Member agrees to keep this catalog of products current by providing advance notice to The Data Council when products are added, changed or deleted. Each Supplier/Vendor Member agrees to deliver to The Data Council all regular production products within twenty-one (21) days of notification from The Data Council. Each Supplier/Vendor may also deliver to The Data Council additional seasonal or special products with advanced notice to The Data Council. If any Retailer or Distributor Member requests a Supplier/Vendor Member product, each Supplier/Vendor Member shall promptly deliver such product to The Data Council for processing. Any products received by The Data Council without prior notification from The Data Council will be subject to destruction or donation. If any Member sends any product(s) to The Data Council (at any capture studio or other facility) without providing prior written notice and processing instructions to The Data Council, The Data Council may, in its sole discretion, perform standard capture services at the highest package level available at the time that it processes the product(s) and the Member shall be invoiced for and agrees to pay for such services.

 

(f) Purchase Orders

Unless Member specifies in writing to The Data Council that Member requires a Purchase Order (“PO”) and associated PO Number to accept and process invoices, Member agrees and represents that POs are not required and that Member shall be required to pay all invoices received from The Data Council in the time specified on such invoice. If Member does require POs or PO Numbers and provides sufficient written notice of such requirement to The Data Council, Member remains responsible to provide such PO Number(s) to The Data Council in a timely manner and Member’s failure to do so shall waive such requirement. Further, if Member requires that PO Numbers be updated periodically, it is Member’s sole responsibility to provide such updated PO Numbers to The Data Council whenever needed and Member’s failure to do shall waive such requirement. Under no circumstances, does Member’s failure to provide a PO or PO Number at any time release Member from its payment obligations hereunder.

 

(g) Term; Termination.

(i) The term of each Membership shall be the period of one (1) calendar year from the first day of the calendar month following the date of acceptance by The Data Council of the Membership application, which acceptance shall occur upon the issuance of account information to the Member. Each term shall automatically renew for successive one (1) year terms at the then applicable Membership dues rates, as published by The Data Council from time to time.

 

(ii) A Member may terminate its Membership in IX-ONE and its obligations under these Rules upon no less than thirty (30) days written notice to The Data Council. All outstanding amounts due to The Data Council by the terminating Member must be paid upon termination. There will be no proration or refund for mid-term terminations.

 

(iii) Upon termination or non-renewal of Membership, access to IX-ONE and the Information shall terminate immediately.

 

(iv) The Data Council reserves the right to terminate any Member’s Membership in The Data Council’s sole discretion, and upon termination of Membership, access to IX-ONE and the Information shall terminate immediately.

 

All outstanding amounts due to The Data Council by the terminating Member must be paid upon termination.

Section 2. Conditions of Membership.

 

(a) Mutual Permission to Use Logo and Names. During its term of Membership:

(i) The Member will have a limited right and license to use the IX-ONE logo and name in its marketing materials, including the right to identify itself as a Member of IX-ONE; and

 

(ii)The Data Council shall have a limited right and license to use the Member’s logo and name in its marketing materials, including the right to identify such Member as a Member of IX-ONE.

 

(b) Terms and Conditions relating to the Use of Trademarks and other Intellectual Property. The use by The Data Council of the trademark of each Member, and the use of the IX- ONE trademark by each Member is subject to the following terms and conditions:

 

(i) Neither The Data Council nor any of its Members shall combine the trademark of the other party with any other marks, names or symbols unless it obtains the trademark owner’s prior written consent.

 

(ii) Neither The Data Council nor any of its Members may make any significant change in the presentation of the other party’s trademark, unless such changes are approved by the trademark owner, and the party seeking to make the changes obtains the trademark owner’s prior written consent.

 

(iii) Neither The Data Council nor any of its Members shall authorize any third party to sell, lease or otherwise use the trademark of the other party. In the event either The Data Council or a Member receives a notice, or is informed, of any claim, suit or demand on account of an alleged infringement, unfair competition or similar matter relating to the use of a trademark of the other party, the party receiving such notice shall immediately notify the other party.

 

(iv) The Data Council and its Members will use all trademarks of The Data Council or another Member, as applicable, solely in good faith, and in accordance with good trademark practice.

 

(v) Either party may immediately terminate all licenses to its trademarks under these Rules if the other party breaches any of the terms and conditions set forth in these Rules or otherwise uses any such trademark in a manner to which the trademark owner objects in its sole discretion; provided, however that the breaching party shall have thirty (30) days in which to cure such breach before any and all licenses to the non-breaching party’s trademarks are terminated.

 

(vi) Each Member will comply with the restrictions on use of copyrights, trademarks and other intellectual property rights set forth in the License Agreement.

 

(c) General Update to Member Information. The Member must promptly notify The Data Council of any change in any of the corporate information concerning the Member provided in connection with the creation of the Member’s Membership account. The Member agrees to promptly notify The Data Council if any other information the Member provides to The Data Council changes during the term of the Agreement, including but not limited to Information regarding new products.

Section 3. Authorization; Truthful Information; Privacy; Indemnification; Confidentiality.

 

(a)Authorization; Truthful Information. The Member represents and warrants to The Data Council that the

Member has all requisite authority to execute, deliver and perform all its obligations under this Agreement. The Member agrees that any and all information it provides to The Data Council about itself, its products or otherwise is accurate, true and complete as of the date the Member provides such information to The Data Council.

 

(b) Privacy. The Member has read, understood and accept the terms of The Data Council’s Data Collection, Use and Privacy Policy. This policy governs the collection, use and sharing of personal and non-personal information from the Member when using IX-ONE.

 

(c)Indemnification, Hold Harmless and Duty to Defend. The Member hereby agrees to indemnify, hold harmless and defend The Data Council, and its affiliates, employees, representatives, agents, officers and directors, against any loss or claim arising out of (i) any actual or alleged breach by the Member of this Agreement, including these Rules, (ii) the use or disclosure of any information provided by the Member to The Data Council for use in the business of The Data Council, and (iii) the use of any product information or other information or data provided by the Member to The Data Council.

 

Section 4. Amendments to Terms. The Data Council reserves the right to amend any of the provisions or supplement the terms of these Rules in its sole discretion upon no less than thirty (30) days prior written notice to Member.

 

Section 5. General. These Rules, together with any exhibit, appendix or schedule (including the License Agreement and any Pricing Schedule) contain the complete, final, and exclusive integrated rules, regulations and conditions applicable to the Members of IX-ONE. Any modification or supplement to these Rules shall be provided to all Members no less than thirty (30) days prior to the effective date of such modification or supplement. The termination or expiration of Membership does not terminate any obligation of a Member that continues past the termination. This Agreement, and the application of these Rules to the Member shall be governed by and be construed and enforced in accordance with, the laws of the State of Delaware, excluding principles of conflict of law. The headings do not affect the interpretation of these Rules. Plural terms refer to all members of the relevant Class. “Or” is not exclusive in its meaning. “Including” as used herein shall be deemed to be followed by “but not limited to.”

APPENDIX A

The Data Council LLC – IX-ONE End User License Agreement

 

The Data Council LLC (“The Data Council”) owns, operates and maintains the IX-ONE database (“IX-ONE”). By accessing IX-ONE, you acknowledge and agree to the terms of this IX-ONE End User License Agreement (“License Agreement”). If you do not accept the terms of this License Agreement, you will be denied access to IX-ONE. Inquiries regarding this License Agreement can be submitted to: [email protected]

 

  1. Licensed Use

a) Provided that you comply with all terms of your IX-ONE Membership Agreement

(“Membership Agreement”) (if any), and this License Agreement, The Data Council hereby grants to you a limited, non-exclusive, non-transferable right to use the images and data contained in the current version of IX-ONE solely for the purposes of advertising, merchandising and promoting the brands within IX-ONE. Examples of acceptable use under the foregoing license consist of flyers, coupons, shelf management applications, planogramming, e-commerce, sell sheets or any other activity expressly authorized in your Membership Agreement (if any).

 

b) All other use applications must be specifically authorized by The Data Council in a written communication to you. Such authorization may be delivered electronically, may be subject to such conditions and limitations as are specified by The Data Council (including being limited to a single instance), and may be withheld or denied (or if granted, revoked at any time) in the sole discretion of The Data Council.

 

c) You further acknowledge you may receive access to certain Information

(“Subscribed Data”) provided to The Data Council for inclusion in IX-ONE from certain third-party founding members of IX-ONE, and you agree (i) to use such Subscribed Data for its internal use only, (ii) not to create any derivative works or combine such Subscribed Data with any other database or system except for IXONE, (iii) not to disclose the Subscribed Data to any third parties, except for certain permitted uses as determined by The Data Council, and (iv) not to determine the group, category, subcategory hierarchy of such Subscribed Data, which Subscribed Data will be identified as such.

 

2. Restrictions On Use.

 

a) You may not license, sell, or otherwise transfer, deliver, give or provide access to IX-ONE or to any of the data or images contained in IX-ONE to any person or entity, except as expressly permitted in your Membership Agreement (if any).

 

b) You may not alter the images, disclaimers, and/or data from IX-ONE or any notices or trademark designations that appear therewith.

 

c) Retail application developers may not integrate the images and data in IX-ONE into websites, checkout systems, coupon dispensing machines, in-store electronic shopping carts or other similar uses without the express written consent of The Data Council.

 

d) Images, logos, disclaimers and/or data or other content contained in IX-ONE may not be (i) used or integrated into any other commercial image and data library service or database without the express prior written consent of The Data Council; or (ii) made available to competitors of The Data Council.

 

3. Copyrights, Trademarks And Other Intellectual Property.

 

a) Except as otherwise provided in this License Agreement and pre-existing membership agreements between The Data Council and its members, you acknowledge that The Data Council is the owner of all rights in IX-ONE, including the copyright in the individual images and data and the selection and arrangement of images and data. By accepting this License Agreement, you agree that you shall not challenge The Data Council’s rights, including its copyrights, in the IX-ONE database.

 

b) You will not use or display any trademark, including any logo, owned by The

Data Council except as may be expressly permitted by your Membership Agreement

 

c) IX-ONE is a registered trademark of The Data Council. All other applicable rights, patents, copyrights, trademarks and trade secrets in IX-ONE are and shall remain owned by The Data Council or its licensors.

 

d) All rights in IX-ONE supplier/vendor member (each, a “Supplier Member”) products including, without limitation, copyright, trademark, trade dress and other intellectual property rights are and shall remain the property of such Supplier Member. You agree to utilize the proper trademark designations (® for registered trademarks and ™ for unregistered trademarks) of Supplier Members. You acknowledge the Supplier Members’ ownership of such trademarks, agree that you will do nothing inconsistent with or that may dilute such ownership, agree to use reasonable efforts to preserve the Supplier Members’ rights in such trademarks and agree that all uses of such trademarks by you shall inure to the sole benefit of the applicable Supplier Member. You agree that the nature and quality of your use of such trademarks shall conform to the reasonable standards set by the applicable Supplier Member. You agree to cooperate with the Supplier Member and The Data Council in facilitating the Supplier Members’ monitoring and control of the nature and quality of the use of such trademarks, and to supply The Data Council or the Supplier Member with specimens of use of the trademarks upon request. You shall comply with all applicable laws, rules, regulations, and customs with respect to your use of such trademarks, and shall notify The Data Council and the applicable Supplier Member promptly and in writing of any unauthorized use of the trademarks by your or any third party of which you have any knowledge. The Data Council or the Supplier Member shall have the sole right to bring any legal proceeding with respect to any such unauthorized use.

4. Disclaimer Of Warranty.

 

The Data Council disclaims all warranties, either expressed or implied, by operation of law or otherwise, including, but not limited to, any implied warranties or merchantability, fitness for a particular purpose, or non-infringement. Without limiting the generality of the foregoing, the Data Council specifically disclaims any liability for inaccuracy in the product label or related information furnished to The Data Council by Supplier Members.

 

Any label or ingredient changes are the sole liability of the applicable Supplier Member.

 

5. Termination.

 

Either party to this License Agreement may terminate this Agreement without cause at any time. This License Agreement will terminate automatically if you fail to comply with any of the terms of this License Agreement or if your Membership Agreement (if any) terminates for any reason. Upon any termination of this License Agreement, you are no longer permitted to use any of the images, data or related material within IX-ONE and you will be denied access to IX-ONE and its content.

 

6. Damages.

 

In no event shall The Data Council be liable for special, indirect, incidental or consequential damages in any way relating to the use, or arising out of the use, of IX-ONE, even if advised of the possibility of such damages.

 

7. General.

 

a) You acknowledge that you have (i) read this License Agreement, understand it, and agree to be bound by its terms, and (ii) all requisite authority to execute, deliver and perform all obligations under this License Agreement.

 

b) This License Agreement, together with your Membership Agreement (if any), is the complete and exclusive statement of the agreement between you and The Data Council, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter hereof.

 

c) This License Agreement, the performance hereunder and any dispute arising hereunder shall be governed by and be construed and enforced in accordance with, the laws of the State of Delaware, excluding principles of conflict of law. Supplier Members may enforce their intellectual property rights under this License Agreement, and The Data Council and Supplier Members shall have the right to collect reasonable expenses incurred in enforcing this License Agreement, including reasonable attorney’s fees and court costs.

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