OpenAI Merchant Feed Terms of Service

These OpenAI Merchant Feed Terms of Service (“Terms”) are entered into by OpenAI OpCo, LLC and its Affiliates (together, “OpenAI”) and the entity agreeing to these Terms (“Merchant”). These Terms govern the sharing of Merchant content with OpenAI and OpenAI’s use of such content with its products and services. You represent that you are lawfully able to enter into these Terms and bind Merchant.

Merchant may submit (itself or through its agent(s)) product content (“Merchant Content”) to OpenAI using agreed-upon means, including through feeds. Merchant agrees to submit Merchant Content in a manner that complies with the instructions and specifications at https://developers.openai.com/commerce/specs/feed⁠(opens in a new window) (as may be updated by OpenAI periodically) (the “Product Feed Spec”). Merchant will be responsible for the acts and omissions of any such agent.

• Merchant is responsible for Merchant Content it submits to OpenAI.
• Merchant will ensure that Merchant Content complies with (i) OpenAI’s Prohibited Products Policies at https://openai.com/policies/commerce-policies/⁠ and all other policies made available by OpenAI to Merchant, as may be modified by OpenAI periodically (collectively, “Policies”), (ii) these Terms and (iii) applicable law(s).
• If Merchant Content contains any Personal Data (as defined in Exhibit A) such as reviews, the parties will comply with Exhibit A with respect to such Personal Data. 

• Merchant hereby grants to OpenAI and its Affiliates a worldwide, royalty-free license to reproduce, distribute, modify, publicly perform and display Merchant Content (to the extent protected by intellectual property rights and such license is necessary) in connection with OpenAI’s or its Affiliates’ products and services to enable OpenAI to surface, recommend, or display Merchant products to users (“OpenAI Services”). 
• In addition, OpenAI and its Affiliates may access the Merchant Content for purposes of a search index and improving the OpenAI Services. 
• For purposes of these Terms, “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with OpenAI. OpenAI and its Affiliates may use suppliers, contractors, and service providers to perform services for OpenAI and its Affiliates using the Merchant Content. 
• Nothing in these Terms requires OpenAI to use or surface any Merchant Content. OpenAI may remove or decide not to display any Merchant Content at its sole discretion.
• By submitting Merchant Content, Merchant authorizes OpenAI to use Merchant’s name, brand, logos, and trademarks in connection with OpenAI’s authorized use of Merchant Content, such as to attribute Merchant products to Merchant.
• If OpenAI becomes aware and notifies Merchant that any Merchant Content might infringe upon a third-party’s intellectual property rights, involve counterfeit goods, or otherwise violate a third-party’s proprietary or privacy rights, then Merchant will expeditiously remove the offending Merchant Content from Merchant Content accessible to OpenAI until the issue is resolved. 
• Upon OpenAI's request, Merchant will collaborate with OpenAI to identify and remediate any discrepancies between the Merchant Content and information displayed on Merchant properties, formatting inconsistencies, missing data fields, or technical integration problems and will promptly work to resolve the issue identified by OpenAI. Merchant will provide reasonable technical support and subject matter expertise to ensure Merchant Content quality and system compatibility.

• Merchant warrants that it: (i) has full power and authority to enter into these Terms; and (ii) will comply with applicable law in the exercise of its rights and performance of its obligations under these Terms.
• Merchant represents and warrants that:
  • it holds, and will maintain, the rights to provide the Merchant Content as set forth herein and to grant the licenses and rights set forth in Section 3;
  • it will not provide any Merchant Content that violates Policies, applicable law or any applicable privacy policies, infringes any third party intellectual property rights, or is threatening, harassing, defamatory, libelous, fraudulent, or otherwise tortious;
  • Merchant’s provision of the Merchant Content to OpenAI and its Affiliates under these Terms will comply with applicable law, including data protection legislation; 
  • the Merchant Content includes all necessary warnings, disclaimers, and other labels required for the products described in the Merchant Content,
  • all products described in the Merchant Content are genuine, legally offered for sale, and comply with applicable safety standards and regulatory requirements in the jurisdictions where they will be marketed;
  • the information contained in the Merchant Content (including pricing information regarding Merchant’s products and services) is and will remain complete, correct and current; and
  • the Merchant Content does not include any Personal Data, biometric data, or other Personal Data of individuals, including any information subject to data protection legislation, except for Personal Data contained within the Merchant Content that is publicly available in mass media.
• Except as otherwise expressly set forth in these Terms, neither party makes (and each party expressly disclaims) any other representations or warranties, whether express or implied, with respect to these Terms or its subject matter, including any implied warranties of merchantability or fitness for a particular purpose, and any warranties that may arise from course of performance, course of dealing, or usage of trade.

• Limitation on Indirect Liability. To the fullest extent permitted by law, except for (a) gross negligence/willful misconduct or (b) indemnification obligations, neither party is liable for indirect, incidental, special, consequential, or punitive damages (including lost profits), even if foreseeable.
• Liability Cap. To the fullest extent permitted by law, OpenAI’s total liability will not exceed $1,000.

• Merchant will indemnify, hold harmless, and defend OpenAI and its Affiliates (and their respective employees, officers, and directors) from and against all liabilities, damages, losses, costs, fees (including reasonable legal fees), and expenses relating to any third-party allegation, claim, action, suit, or proceeding (“Third Party Claim”) arising out of or related to Merchant Content or any breach of these Terms by Merchant. 
• OpenAI will provide prompt written notice when seeking indemnification, reasonable cooperation, and allow you sole control of the defense/settlement (with customary consent limits), provided that OpenAI may participate in its own defense at its sole expense.

Either party may terminate these Terms by written notice to the other party for any reason or no reason upon 30 days’ written notice. Merchant may cease to provide the Merchant Content to OpenAI at any time. Neither termination of these Terms nor any other provision of these Terms will require OpenAI or its Affiliates to modify, delete, or cease providing any OpenAI Service (and Merchant hereby waives and agrees not to assert any claim for any equitable remedy, including injunctive relief, against OpenAI or any of Affiliates with respect to any of the foregoing matters).

With respect to all of its activities pursuant to these Terms, Merchant, including its respective officers, directors, employees, subsidiaries, and/or any other person acting on its behalf: shall comply with all applicable international trade, economic sanctions, and export control laws and regulations with respect to its activities pursuant to these Terms, including U.S. (including the regulations administered by the U.S. Department of the Treasury’s Office of Foreign Asset Controls (“OFAC”) and the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”)), EU, UK, and UN laws, regulations, and resolutions (“International Trade Laws”); represents that neither Merchant nor any of its respective parents or subsidiaries is (1) included on any sanctioned party or export control restricted party list maintained by the United States, EU, UK, or UN (collectively, “Restricted Party Lists”; such persons on Restricted Party Lists, a “Restricted Party”), (2) owned or controlled by a Restricted Party, (3) owned or controlled by or acting on behalf of any individual or entity located or resident in or organized under the laws of Cuba, Iran, North Korea, or the Crimea region of Ukraine or the so-called Donetsk or Luhansk People’s Republics (each of these, a “Sanctioned Jurisdiction”); or (4) owned or controlled by or acting on behalf of the government of Venezuela; and represents and warrants that Merchant will not take any action pursuant to these Terms that will cause OpenAI to violate International Trade Laws, including with respect to their products; and will promptly notify, to the extent legally permissible, OpenAI of any known noncompliance with this provision.

OpenAI may make non-material changes to these Terms at any time without notice, but OpenAI will provide advance notice of any changes to these Terms that materially impact Merchant’s rights or obligations. Changes to the Terms will not apply retroactively and will become effective at least 15 days after being posted or otherwise made available to Merchant. However, changes made for legal reasons or in urgent situations (such as preventing ongoing abuse) will be effective immediately upon notice.

Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through the notice procedures in Section 11 below. If a dispute is not resolved within thirty days of such notice, Merchant or OpenAI may initiate a formal proceeding pursuant to this Section. These Terms will be governed by the laws of the State of California, without regard to its conflict of laws provisions. Any dispute, controversy, or claim arising out of or relating to these Terms or to a breach thereof, including its interpretation, performance, or termination, will be finally resolved by arbitration in San Francisco, California, using the English language in accordance with the Commercial Arbitration Rules of the American Arbitration Association, JAMS, or equivalent, by one independent, disinterested commercial arbitrator appointed in accordance with such rules. The prevailing party in the arbitration will be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. The parties agree that all claims will be brought solely in their individual capacities and not as plaintiffs or class members in any purported class, consolidated, or representative proceeding. The arbitrator may not consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.

• (a) These Terms are the parties’ entire agreement relating to their subject matter and supersede any prior or contemporaneous agreements on those subjects. (b) Merchant may not make any public statement regarding the relationship contemplated by these Terms (except when required by law with notice to OpenAI). 
• (c) Except for modifications to the Terms by OpenAI under Section 9, any amendment to these Terms must be agreed to in writing by both parties and must expressly state that it is amending these Terms. 
• (d) Notices must be in writing and are deemed given when received, as confirmed by written or electronic means. Notices to OpenAI must be sent to: contract-notices@openai.com, with a copy to 1455 Third Street, San Francisco, CA 94158, Attn: Legal.  Notices to Merchant will be addressed to Merchant’s Legal Department (or if the contact information for Merchant’s Legal Department is not known then to Merchant's primary contact or other address on file). 
• (e) No waiver of any of the provisions of these Terms will constitute a waiver of any other provision (whether or not similar). No waiver will be binding unless executed in writing by the party to be bound by the waiver.
• (f) If any provision of these Terms is found unenforceable, that provision will be severed and the remaining provisions of the Terms will continue in full force and effect. 
• (g) Neither party may assign any of its rights or obligations under these Terms without the written consent of the other party, except to an Affiliate but only where (i) the assignee agrees in writing to be bound by these Terms, (ii) the assigning party remains liable for obligations under these Terms if the assignee defaults on them, and (iii) the assigning party has notified the other party in writing of the assignment. OpenAI may assign any of its rights or obligations under these Terms without consent or notice in the event of a corporate reorganization. Any other attempt to transfer or assign is void.  
• (h) There are no third-party beneficiaries to these Terms. These Terms do not create any agency, partnership, joint venture or employment relationship among the parties. The parties do not intend to create any joint works under these Terms.
• (j)The following provisions will survive any expiration or termination of these Terms: 3-7 and 10-11. 

“Data Protection Legislation” means the following legislation to the extent applicable from time to time: (a) national laws implementing the Directive on Privacy and Electronic Communications (2002/58/EC); (b) the General Data Protection Regulation (2016/679) and any national law issued under that Regulation; and (c) the UK GDPR, Data Protection Act 2018 and Privacy and Electronic Communications (EC Directive) Regulations 2003; and (d) any other similar national or state privacy law relevant to the processing of Personal Data hereunder.

“Personal Data” means any personal data (as such term is defined in Data Protection Legislation) processed pursuant to these Terms.

For the purposes of these Terms, the terms “data controller” and “processing” shall have the meaning given to them in Data Protection Legislation. 

The parties acknowledge and agree that the Merchant Content may include Personal Data. Each party acts as an independent data controller in respect of such Personal Data (and not as joint controllers, or controllers in common), and may process the Personal Data for its own purposes, in accordance with the rights and obligations set forth in these Terms and in compliance with Data Protection Legislation. The parties acknowledge that any such Personal Data contained within the Merchant Content was made publicly available in mass media.  

To the extent the Merchant Content includes Personal Data, OpenAI understands the nature and sensitivity of such Personal Data and shall at all times: (i) comply with Data Protection Legislation, rules, and regulations in respect of its processing of the Personal Data; (ii) ensure that it has measures in place to provide accurate transparency information; and (iii) ensure that it has measures in place to comply with rights requests received from individuals in respect of individuals’ rights under Data Protection Legislation.

Unless prohibited from doing so by applicable law, in the event that either party receives a request, enquiry or complaint from a regulator appointed under Data Protection Legislation or any other regulatory or governmental body in respect of Personal Data processed under these Terms, the other party shall, as requested, assist them in responding to any such complaints.