Henoscene Supplemental Commercial Terms
This policy was last reviewed and updated: 28th October, 2023
These Henoscene Supplemental Commercial Terms (“Commercial Terms”) apply to access to or use of the Site, by Brands and Maestros, and by any other users accessing or using the Services for any business or commercial purpose. Business or commercial purposes include (without limitation): (a) hosting an Impact Campaign with an Impact Partner, and (b) any services or deliverables that we perform to enable you to plan and run your Impact Campaign(s) on our Site (collectively, the “Platform Services”), as agreed to by the parties in an order form (the “Impact Campaign Order Form”). The Impact Campaign Order Form together with these Commercial Terms are hereby incorporated by this reference into the Henoscene Terms of Service (“Henoscene Terms”) and collectively form the agreement between you and Henoscene. References to “you” or “your” herein mean you personally and the company, corporation, organization, business, partnership, sole proprietorship, or other entity (each herein referred to as an “entity”) on whose behalf, or for whose benefit, you are using the Platform Services. Further, if you are an entity using any Platform Services pursuant to these Commercial Terms, you may make available such Platform Services to your employees and representatives for their use on your behalf or for your benefit, in which case references to “you” or “your” herein will also include such employees and representatives.
You will ensure that any entity on whose behalf you access or use the Site for any Impact Campaign will abide by the applicable terms and conditions, including these Commercial Terms, the Henoscene Terms, and any applicable supplemental terms. You represent and warrant that you have the authority to bind that entity to all such applicable terms. These Commercial Terms are in addition to, and not in lieu of, your rights and obligations under the Henoscene Terms. Capitalized terms not defined in these Commercial Terms have the meanings assigned to them in the Henoscene Terms. In case of conflict between these Commercial Terms and the Henoscene Terms, these Commercial Terms will govern to the extent of that conflict.
- Your Obligations
- General. You will cooperate with Henoscene in Henoscene’s provision of Services or Platform Services, and Henoscene will have no liability for any delays in the performance of its obligations to the extent due to any delays caused by you and/or any of your affiliates. Without limiting the foregoing, you will provide a lead contact to coordinate Services or Platform Services with Henoscene. You will, and it is your sole responsibility to, comply with all laws, rules, ordinances, regulations, orders, licenses, permits, and other legal and governmental requirements applicable to your Impact Campaigns, your use of the Platform Services, and any of your acts or omissions relating to the Henoscene Terms or these Commercial Terms (“Applicable Law”).
- Marketing and Promotional Activities. Without limiting the generality of subsection (a) above, the marketing or promotional activities in connection with the Impact Campaigns, and compliance with Applicable Law related thereto, are your sole responsibility and Henoscene disclaims any responsibility or liability related to such activities and any Impact Campaigns. Without limiting the foregoing, you will (a) conduct all marketing or promotional activities in accordance with Applicable Law, including (without limitation) any such laws, rules, ordinances, and regulations relating to advertising, advertising disclosures, contests, sweepstakes, rewards programs, commercial co-ventures, commercial fundraising, professional fundraising, charitable solicitations, promotional offers, anti-touting, or use of endorsements or influencers (including the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. Part 255, and related guidance); and (b) take sole responsibility for drafting the official rules, disclosures, and/or terms related to all Impact Campaigns. Prior to hosting any contests or sweepstakes associated with the Impact Campaign, you will send to Henoscene the promotion’s official rules for written approval within seven (7) days prior to the launch of the promotion.
- Impact Partners. You are responsible for all acts and omissions of Impact Partners in connection with or relating to an Impact Campaign. If you or your Impact Partner are subject to Sanctions (including geographic Sanctions), you may not engage in activities with us.
- Sanctions Compliance. In connection with or in relation to an Impact Campaign or the Services, you shall not act in any manner that causes, or would create a material risk of causing, Henoscene to violate any Sanctions (including geographic Sanctions) or expose Henoscene to penalties under any Sanctions (including geographic Sanctions). Unless prohibited by applicable law, you agree to immediately notify Henoscene in writing should you know or have reason to suspect any violation of Sanctions, including geographic Sanctions, occurring in connection with or otherwise relating to an Impact Campaign or the Services.
- Data Restrictions
- Creative Work License
- Proprietary Rights
- Fees, Payments & Taxes
- Fees. You will pay to Henoscene all fees as described in the Impact Campaign Order Form or as otherwise mutually agreed in writing.
- Payments. Subject to these Commercial Terms, you will pay Henoscene within thirty (30) days of the date of an invoice from Henoscene for fees described in the Impact Campaign Order Form or as otherwise mutually agreed in writing. All amounts will be in U.S. Dollars unless otherwise denoted. If you dispute in good faith the amount of an invoice or other payment obligation to Henoscene, you must notify Henoscene prior to the due date of such payment, and the parties will meet in an effort to resolve the dispute; if the dispute is not so resolved, the parties will submit the dispute for expedited resolution pursuant to Section 13(f) below. Upon the dispute being resolved, you will promptly pay any amount that is determined through the dispute resolution process to be the amount due to Henoscene. Unless otherwise specified in writing, payments will be made via electronic bank transfers as designated by the payment recipient which may be changed from time to time by providing notice to the other party in writing.
- Taxes. All amounts set forth are exclusive of any applicable taxes.
- Confidential Information
- Confidential Information. Each party acknowledges that it may receive Confidential Information (as defined below) (“Recipient”) of the other party (“Discloser”) in connection with the performance or receipt (as applicable) of Platform Services under these Commercial Terms. For purposes of these Commercial Terms, “Confidential Information” means any and all information and materials of or related to Discloser that are disclosed during the Impact Campaign (whether in writing, or in oral, graphic, electronic or any other form) by or on behalf of Discloser to Recipient under circumstances that would indicate to a reasonable person that such information or materials are confidential or proprietary. Without limiting the foregoing, Henoscene’s Confidential Information will include, without limitation, the following: (i) the Technology; (ii) any trade secrets, know-how, ideas, inventions, processes, software (in source code and object code form), and designs; and (iii) any technical, product, marketing, financial, and other information and materials of Henoscene.
- Nondisclosure and Limited Use. Recipient will hold the Confidential Information of Discloser in trust and confidence, and will take at least the same degree of care that it uses to protect its own confidential and proprietary information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use or disclosure of the Confidential Information of Discloser. Except as expressly provided herein, Recipient will not disclose or otherwise make available to any third party any Confidential Information of Discloser without Discloser’s prior written approval. The obligations of this Section 7(b) will survive any expiration or termination of these Commercial Terms for a period of three (3) years from the date of such expiration or termination.
- Scope. The obligations set forth in Section 7(b) above will not apply with respect to any Confidential Information of Discloser to the extent such Confidential Information: (i) is or has become generally publicly known or available other than by any act or omission of Recipient; (ii) was rightfully known by Recipient prior to the time of first disclosure to Recipient by Discloser; (iii) is rightfully obtained without restriction from a third party who has the right to make such disclosure and without breach of any duty of confidentiality to Discloser; or (iv) is independently developed by Recipient without use of, reliance upon or reference to any Confidential Information of Discloser.
- Exclusions. Additionally, (i) nothing in this Section 7 will restrict the use or disclosure by Henoscene of any Confidential Information of You in a manner consistent with the rights and licenses granted hereunder, including disclosures to any licensees or sublicensee(s); and (ii) Recipient may use or disclose Discloser’s Confidential Information (x) to the extent approved in writing in advance by Discloser; (y) to the extent Recipient is legally compelled to disclose such Confidential Information, including by a court or by the rules of a securities self-regulatory organization, provided that prior to any such compelled disclosure, Recipient will make commercially reasonable efforts to provide Discloser reasonable advance written notice of such anticipated disclosure and will cooperate with Discloser in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information; or (z) in confidence, to legal counsel or to accountants, banks, and financing sources and their respective advisors, and, with respect to Henoscene as Recipient, third-party contractors assisting Henoscene in the performance of the Platform Services, who are, in each case, bound by duties of confidentiality consistent with those set forth in these Commercial Terms.
- Representations and Warranties
- Mutual Representations and Warranties. Each party represents and warrants to the other party that the execution, delivery, and performance of these Commercial Terms: (i) is within its corporate powers; (ii) has been duly authorized by all necessary corporate actions on such party’s part; and (iii) does not and will not contravene or constitute a default under, and is not and will not be inconsistent with, any judgment decree or order, or any contract, agreement, or other undertaking, applicable to such party.
- Your Representations and Warranties. You represent and warrant that: (i) the Creative Work does not, and will not, infringe, misappropriate or violate any intellectual property or any other rights of any party, and you have no knowledge of any basis for a claim of such infringement, misappropriation or violation; (ii) the Creative Work, in the form delivered to Henoscene, will be free from material defects and errors; (iii) your access to and use of the Services and Platform Services, including any Impact Campaign, complies with all Applicable Law, including (without limitation) those (A) listed in Section 2(b), (B) relating to commercial co-ventures, commercial fundraising, professional fundraising, charitable solicitation, and registrations related thereto, and (C) data privacy and security; and (iv) you and your Impact Partner are not subject to Sanctions (including geographic Sanctions).
- Henoscene’s Representations and Warranties. Henoscene represents and warrants that (i) it will perform the Platform Services in a diligent and professional manner, and (ii) the Technology does not and will not infringe the intellectual property rights of any party.
- Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, HENOSCENE MAKES NO, AND HEREBY DISCLAIMS, ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATED TO THE SUBJECT MATTER OF THESE COMMERCIAL TERMS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HENOSCENE MAKES NO WARRANTY THAT ALL ERRORS, FAILURES, OR DEFECTS WILL BE CORRECTED, OR THAT ACCESS TO OR USE OF THE SERVICES OR PLATFORM SERVICES, THE SITE OR THE TECHNOLOGY WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY HENOSCENE, ITS AGENTS, OR ITS EMPLOYEES, WILL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES EXPRESSLY PROVIDED IN THESE COMMERCIAL TERMS.
- You will indemnify, defend (at Henoscene’s option), and hold harmless Henoscene from and against any and all losses, damages, liabilities, awards, settlements, judgments, fees, costs and expenses (including reasonable outside attorneys’ fees and expenses) (“Claims”) arising out of or relating to any third-party claim, allegation, action, demand, proceeding, investigation, or suit incurred by, involving or asserted against Henoscene in connection with: (i) any actual or alleged breach of your obligations, representations, warranties, or covenants hereunder, including any breach arising from actions taken by your Impact Partner; (ii) your gross negligence or willful misconduct; or (iii) your or your Impact Partner’s violation of Applicable Law.
- Henoscene will (i) promptly notify you in writing of any indemnifiable claim (but, in any event, notice in sufficient time for you to respond without prejudice), (ii) grant you the right to control and direct the investigation, defense, or settlement of such claim, except that you will not settle any Claim without Henoscene’s prior written consent, and (iii) provide reasonable cooperation to you.
- Limitation of Liability
- Termination for Cause. If either party materially breaches any of its obligations under these Commercial Terms, the other party will have the right to terminate these Commercial Terms by written notice to the breaching party, unless such breaching party remedies the breach within fifteen (15) days after receipt of written notice of such breach.
- Termination for Bankruptcy. Either party may terminate these Commercial Terms if the other party (i) becomes insolvent; (ii) is declared insolvent or admits in writing its insolvency or inability to pay its debts or perform its obligations; or (iii) becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment, or composition, or makes a general assignment for the benefit of creditors, provided that, in the case of an involuntary proceeding, the proceeding is not dismissed with prejudice within sixty (60) days after the institution thereof.
- Effect of Termination. Within thirty (30) days after any termination, each party will return or destroy all Confidential Information of the other party (and all copies thereof) then in the possession or under the control of the party. Termination of these Commercial Terms by either party will not act as a waiver of any breach of these Commercial Terms and will not act as a release of either party from any liability for breach of such party’s obligations under these Commercial Terms. Neither party will be liable to the other for damages of any kind solely as a result of terminating these Commercial Terms in accordance with its terms. Either party’s termination of these Commercial Terms will be without prejudice to any other right or remedy that it may have at law or in equity, and will not relieve either party of breaches occurring prior to the effective date of such termination. Sections 4, 5, 7, 8, 9, 10, 11, 12(b), 12(c), and 13 of these Commercial Terms, will survive any expiration or termination of these Commercial Terms.
- General Provisions
- Updates. We may need to update these Commercial Terms from time to time, including to accurately reflect the access to or uses of our Services or Platform Services for business or commercial purposes, and so we encourage you to check them regularly for any updates. By continuing any access or use our Site for business or commercial purposes after any notice of an update to these Commercial Terms, you agree to be bound by them. Any updates to Section 13(f) of these Commercial Terms will apply only to disputes that arise after notice of the update takes place. If you do not agree to the updated terms, please stop all access or use of our Site for business or commercial purposes.
- Notices. All notices required hereunder will be given by hand or overnight delivery service to the addresses, with a required copy sent via electronic mail to the email addresses in the Impact Campaign Order Form. Either party may amend its address set forth above at any time by written notice to the other party. All such notices will be deemed given when delivered, so addressed, by hand, facsimile or overnight delivery service.
- Assignment. This Commercial Terms may not be assigned by either party, other than to any affiliate under common control with such party, without the other party’s prior written consent, such consent not to be unreasonably withheld or delayed; provided that these Commercial Terms shall be binding upon and inure to the benefit of the assigning party’s permitted successors and assigns. Any attempted assignment other than in accordance with this Section 13(c) will be null and void.
- Interpretation. Use of the word “including” will be interpreted to mean “including without limitation.”
- No Third Party Rights. There are no third party beneficiaries to these Commercial Terms.
- Governing Law; Venue. These Commercial Terms will be construed in accordance with the laws of the State of New York, without reference to its conflicts of law provisions. Any controversy or claim arising out of or relating to these Commercial Terms (including these Commercial Terms), or the breach thereof, will be resolved by arbitration before a single neutral arbitrator and administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration and Mediation Rules available at https://www.adr.org/sites/default/files/Commercial-Rules_Web.pdf (“Commercial Arbitration Rules”), and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof (the parties acknowledge and agree that any court located in the Borough of Manhattan in the State of New York will have jurisdiction thereof). Notwithstanding the foregoing, in the event that a party timely disputes any amount of an invoice in accordance with Section 6(b), upon the request of either party, the parties will engage in an expedited arbitration proceeding pursuant to AAA’s Commercial Arbitration Rules, using a single neutral arbitrator appointed by AAA; such arbitrator will be required to conduct a hearing within fifteen (15) days of being appointed and to issue a decision within thirty (30) days of such appointment. Any in-person hearings or appearances will be held in the Borough of Manhattan in the State of New York. The parties irrevocably agree to waive trial by jury in any action, claim, or counterclaim brought by or on behalf of either party related to or arising out of these Commercial Terms. These Commercial Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
- Subcontractors. Henoscene may subcontract or otherwise delegate any of its obligations under these Commercial Terms.
- No Waiver; Cumulative Remedies. No delay, failure or waiver by either party to exercise any right or remedy under these Commercial Terms, and no partial or single exercise of any such right or remedy, will operate to limit, preclude, cancel, waive or otherwise affect such right or remedy, nor will any single or partial exercise of such right or remedy limit, preclude, impair or waive any further exercise of such right or remedy or the exercise of any other right or remedy.
- Independent Contractors. Nothing contained in these Commercial Terms will be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the parties. Neither party nor its agents have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times will continue to be, that of independent contractors.
- Force Majeure. Neither party will be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, error in the coding of electronic files, Internet or other network “brownouts” or failures, power failures, unanticipated product development problems, and acts of civil and military authorities; provided that such party gives the other party prompt written notice of the failure to perform and the reason therefor and uses its reasonable efforts to limit the resulting delay in its performance.
- Public Announcements. You will cooperate with Henoscene so that Henoscene may issue a press release regarding the Impact Campaign; provided, however, Henoscene may not release any such press release without your prior written approval (which will not be unreasonably withheld, delayed, or conditioned). Henoscene will have the right to use your name as a reference, and to use your trademarks (with your approval) on the Site.
Notwithstanding Sections 4(b) and 4(d) of the Henoscene Terms, you must be at least 18 years old or the age of legal majority in your jurisdiction to (a) access or use the Services or Platform Services for any business or commercial purpose, and (b) enter into a binding contract with us.
You may not use your Impact Campaign to collect from people information other than is strictly necessary in order to administer awards or rewards associated with your Impact Campaign. Except as expressly set forth herein, you may not: (i) use information relating to Henoscene account holders that is posted on the Henoscene Services to market to those individuals; or (ii) scrape or otherwise copy, collect, store, or download information relating to Henoscene account holders that is posted on the Henoscene Services for any purpose. Notwithstanding the foregoing, the collection and sharing of data will be in accordance with the requirements of all applicable laws and in accordance with any data processing terms agreed to by the parties.
In the event you own or control rights in Creative Work and provide such Creative Work to Henoscene, you hereby grant to Henoscene a non-exclusive, perpetual, worldwide, non-transferable (except as provided under Section 13(c) below), sublicensable license to access, host, modify, reformat, create derivative works of, reproduce, display, perform, and otherwise use the Creative Work in connection with the performance of Henoscene’s obligations under the Impact Campaign Order Form and to operate the Services. In the event any third party owns or controls rights in Creative Work and you provide such Creative Work to Henoscene, you will obtain all necessary third-party rights, consents, and clearances in connection with the Creative Work, including for the use of such Creative Work as contemplated hereunder.
As between you and Henoscene, (a) Henoscene owns all right, title, and interest in and to the Site, all designs, models, materials, software, tools, works of authorship, and other content and materials created by Henoscene, and all modifications, enhancements, and improvements thereto (“Technology”), including all intellectual property rights therein, and, except as set forth herein, (b) you own all right, title, and interest in and to the Creative Work (other than as set forth in Section 4, including all intellectual property rights therein.
EXCEPT FOR A PARTY’S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL (A) EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS OR LOST REVENUE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, EVEN IF THE BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE COMMERCIAL TERMS (REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED IN AGGREGATE THE LESSER OF $500 OR AMOUNTS PAID BY YOU TO HENOSCENE PURSUANT TO THESE COMMERCIAL TERMS AND THE HENOSCENE TERMS. The parties acknowledge that the limitation of liability set forth in this Section 10 is an essential element of the bargain agreed to by the parties, without which the parties would not have entered into these Commercial Terms.