RIVIR is a membership-based platform and database established and maintained by The Data Council, LLC ( “Data Council”) that allows its members access to independently verified and standardized product information through its online information exchange. RIVIR is a trademark and service of The Data Council.
Data Council requires that before any person may provide information to be included in RIVIR or gain access to the information maintained and supplied by Data Council, such person must become a member of RIVIR (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”).
Subject to the Rules each Member understands and agrees:
1. That The Data Council owns, operates and maintains the RIVIR database.
2. That the Member shall be entitled to all of the rights and privileges due a member in good standing under the Rules.
3. To pay Membership Dues (as defined in the Rules) and other charges for goods and services in accordance with the applicable invoice.
4. THAT ALL MEMBERSHIPS ARE NON-ASSESSABLE, NON-VOTING, NON-PROPRIETARY, NON-TRANSFERABLE and can be terminated at any time at the discretion of The Data Council.
5. That these Rules along with the Membership Agreement (together, the “Agreement”) between the Member and The Data Council is assignable by The Data Council to any successor to the business or assets of The Data Council, but may not be assigned by Member without the written consent of The Data Council.
6. To be bound by the Rules as they exist and as they may from time-to-time be amended or supplemented by The Data Council, subject to the provisions in the Rules, and understands that failure to abide by the Rules may result in termination of all rights as a member.
Each Member acknowledges that by agreeing to become a Member within a specified Class, the Member will be granted access to RIVIR 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 RIVIR 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 RIVIR and the Information is subject to the terms and conditions of the RIVIR End-User License Agreement attached hereto as Exhibit A (the “License Agreement”), and it shall not license, sell, or otherwise transfer, deliver, give or provide access to RIVIR 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 RIVIR from certain third-party founding members of RIVIR, 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 RIVIR, (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.
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 RIVIR.
(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.
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 and shall not exceed 10% per year. 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 RIVIR. In the event Member wishes to discontinue any item(s) from its RIVIR 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 RIVIR 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 RIVIR 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.
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 RIVIR and obtain the full benefits of Membership. Additional Authorized User accounts may be licensed for an additional annual fee listed in Appendix B.
Each Supplier/Vendor Member agrees to provide catalog data on its products set forth in Appendix C in sufficient detail to create a sourcing record in RIVIR. 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.
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.
(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 RIVIR 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 RIVIR 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 RIVIR and the Information shall terminate immediately. All outstanding amounts due to The Data Council by the terminating Member must be paid upon termination.
During its term of Membership:
(i) The Member will have a limited right and license to use the RIVIR logo and name in its marketing materials, including the right to identify itself as a Member of RIVIR; 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 RIVIR.
The use by The Data Council of the trademark of each Member, and the use of the RIVIR 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.
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.
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.
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.
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; provided, however, that The Data Council shall not increase Dues by more than 10% annually, without the consent of the Member party hereto, which consent shall not be unreasonably withheld.
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.”
The Data Council RIVIR End-User License Agreement
Interpretation. The words of which the initial letter is capitalized have meanings defined under the following conditions. The following definitions shall have the same meaning regardless of whether they appear in singular or in plural.
Definitions. For the purposes of this End-User License Agreement:
Scope of License. The Company grants You a revocable, non-exclusive, non-transferable, limited license to access and use the Application strictly in accordance with the terms of this Agreement.
License Restrictions. You agree not to, and You will not permit others to:
The Client understands and agrees:
The Application, including without limitation all copyrights, patents, trademarks, trade secrets and other intellectual property rights are, and shall remain, the sole and exclusive property of the Company.
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 the RIVIR Database, 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 RIVIR Database.
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.
All rights in individual Members’ products including, without limitation, copyright, trademark, trade dress and other intellectual property rights are and shall remain the property of such Member. You agree to utilize the proper trademark designations (® for registered trademarks and ™ for unregistered trademarks) of Members. You acknowledge the 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 Members’ rights in such trademarks and agree that all uses of such trademarks by you shall inure to the sole benefit of the applicable Member. You agree that the nature and quality of your use of such trademarks shall conform to the reasonable standards set by the applicable Member. You agree to cooperate with the Member and The Data Council in facilitating the Members’ monitoring and control of the nature and quality of the use of such trademarks, and to supply The Data Council or the 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 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 Member shall have the sole right to bring any legal proceeding with respect to any such unauthorized use.
The Company shall not be obligated to indemnify or defend You with respect to any third party claim arising out of or relating to the Application. To the extent the Company is required to provide indemnification by applicable law, You shall be solely responsible for the investigation, defense, settlement and discharge of any claim that the Application or your use of it infringes any third party intellectual property rights.
The Company reserves the right to modify, suspend or discontinue, temporarily or permanently, the Application or any service to which it connects, with or without notice and without liability to You.
The Company may from time to time provide enhancements or improvements to the features/functionality of the Application, which may include patches, bug fixes, updates, upgrades and other modifications.
Updates may modify or delete certain features and/or functionalities of the Application. You agree that the Company has no obligation to (i) provide any Updates, or (ii) continue to provide or enable any particular features and/or functionalities of the Application to You.
You further agree that all updates or any other modifications will be (i) deemed to constitute an integral part of the Application, and (ii) subject to the terms and conditions of this Agreement.
The Application may display, include or make available third-party content (including data, information, applications and other products services) or provide links to third-party websites or services.
You acknowledge and agree that the Company shall not be responsible for any Third-party Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. The Company does not assume and shall not have any liability or responsibility to You or any other person or entity for any Third-party Services.
You must comply with applicable Third parties’ Terms of agreement when using the Application. Third-party Services and links thereto are provided solely as a convenience to You and You access and use them entirely at your own risk and subject to such third parties’ Terms and conditions.
This Agreement shall remain in effect until terminated by You or the Company. The Company may, in its sole discretion, at any time and for any or no reason, suspend or terminate this Agreement with or without prior notice.
This Agreement will terminate immediately, without prior notice from the Company, in the event that you fail to comply with any provision of this Agreement. Upon termination of this Agreement, You shall cease all use of the Application.
Termination of this Agreement will not limit any of the Company’s rights or remedies at law or in equity in case of breach by You (during the term of this Agreement) of any of your obligations under the present Agreement.
You agree to indemnify and hold the Company and its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (if any) harmless from any claim or demand, including reasonable attorneys’ fees, due to or arising out of your: (a) use of the Application; (b) violation of this Agreement or any law or regulation; or (c) violation of any right of a third party.
The Application is provided to You “AS IS” and “AS AVAILABLE” and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, the Company, on its own behalf and on behalf of its affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Application, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, the Company provides no warranty or undertaking, and makes no representation of any kind that the Application will meet your requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.
Without limiting the foregoing, neither the Company nor any of the company’s provider makes any representation or warranty of any kind, express or implied: (i) as to the operation or availability of the Application, or the information, content, and materials or products included thereon; (ii) that the Application will be uninterrupted or error-free; (iii) as to the accuracy, reliability, or currency of any information or content provided through the Application; or (iv) that the Application, its servers, the content, or e-mails sent from or on behalf of the Company are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components.
Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to You. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law. To the extent any warranty exists under law that cannot be disclaimed, the Company shall be responsible for such warranty.
Notwithstanding any damages that You might incur, the entire liability of the Company and any of its suppliers under any provision of this Agreement and your exclusive remedy for all of the foregoing shall be limited to the amount actually paid by You for the Application or through the Application.
To the maximum extent permitted by applicable law, in no event shall the Company or its suppliers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, loss of data or other information, for business interruption, for personal injury, loss of privacy arising out of or in any way related to the use of or inability to use the Application, third-party software and/or third-party hardware used with the Application, or otherwise in connection with any provision of this Agreement), even if the Company or any supplier has been advised of the possibility of such damages and even if the remedy fails of its essential purpose.
Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to You.
You expressly understand and agree that the Company, its subsidiaries and affiliates, and its licensors shall not be liable to You under any theory of liability for any direct, indirect, incidental, special consequential or exemplary damages that may be incurred by You, including any loss of data, whether or not the Company or its representatives have been advised of or should have been aware of the possibility of any such losses arising.
If any provision of this Agreement is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
Except as provided herein, the failure to exercise a right or to require performance of an obligation under this Agreement shall not affect a party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute a waiver of any subsequent breach.
The Company does not make any warranties concerning the Application. To the extent You have any claim arising from or relating to your use of the Application, the Company is responsible for addressing any such claims, which may include, but not limited to: (i) any product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection, or similar legislation.
You represent and warrant that (i) You are not located in a country that is subject to the United States government embargo, or that has been designated by the United States government as a “terrorist supporting” country, and (ii) You are not listed on any United States government list of prohibited or restricted parties.
The Company reserves the right, at its sole discretion, to modify or replace this Agreement at any time. If a revision is material, a new EULA will be presented to the user for review and acceptance. What constitutes a material change will be determined at the sole discretion of the Company.
By continuing to access or use the Application after any revisions become effective, You agree to be bound by the revised terms. If You do not agree to the new terms, You are no longer authorized to use the Application.
The laws of the Country, excluding its conflicts of law rules, shall govern this Agreement and your use of the Application. Your use of the Application may also be subject to other local, state, national, or international laws. The Data Council’s performance pursuant to this License Agreement 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 Agreement constitutes the entire agreement between You and the Company regarding your use of the Application and supersedes all prior and contemporaneous written or oral agreements between You and the Company.
You may be subject to additional terms and conditions that apply when You use or purchase other Company’s services, which the Company will provide to You at the time of such use or purchase.
The TDC Website can be accessed from locations around the world. TDC makes no representations that this Website or the Materials available through it are appropriate for use at other locations outside the United States. Access to this Website from locations where this Website or any of its Materials are illegal is prohibited. If you access this Website from a location outside the United States, you are responsible for compliance with all local and/or international laws.
Date Last Modified: May 2021