Distributor Terms of Service
Effective Date: September 9, 2021 | v2.0
THESE DISTRIBUTOR TERMS OF SERVICE GOVERN YOUR ACQUISITION AND USE OF THE SERVICES DESCRIBED IN AN ORDER BETWEEN YOU AND US. BY ACCEPTING THESE DISTRIBUTOR TERMS OF SERVICE, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER THAT REFERENCES THESE DISTRIBUTOR TERMS OF SERVICE, YOU AGREE TO THE TERMS OF THESE DISTRIBUTOR TERMS OF SERVICE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE DISTRIBUTOR TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE DISTRIBUTOR TERMS OF SERVICE, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
As used in this Agreement:
“Agreement” means this Terms of Service.
“Anonymized Data” means Company Data that is aggregated or de-identified in a format such that neither Company, its customers or any other person or household may be identified.
“Company” means you or your entity.
“Company Data” means any files, graphics, text, emails, data or other information provided by Company to Vendor in connection with this Agreement, or uploaded by Company to the Platform or collected by the Vendor from Company, including without limitation Company’s contact information, employee information, products, promotional information, information regarding product purchasing and transactions, or other material submitted by Company through the Services. Company Data does not include Customer Data (as defined hereunder).
“Content” means the audio and visual information, Documentation, software specifications, software, products and services made available via the Platform, other than Company Data and Company Confidential Information. Content includes Anonymized Data and any information or data derived from Vendor’s monitoring of access to or use of the Platform by Company or end-users, but does not include Company Data.
“Customer” means Company’s customers who purchase Company products.
“Customer Data” means any data, information, or other materials provided and/or uploaded by Customer to the Platform or collected by Vendor from Customer via the Services for any purpose and may include without limitation: (i) contact information, (ii) information about a transaction, (iii) payment method information, and (iv) and location information.
“Customer Orders” orders placed by Customers for Company Products through the Platform.
“Documentation” means any manuals, instructions or other documents or materials that Vendor provides or makes available to Company in any form or medium and which describe the functionality, components, or requirements of the Platform or Content, including any software specifications and any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof, excluding any marketing or other publicly available materials.
“Order” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us, including any addenda and supplements thereto.
“Personal Information” means any information (i) relating to an identified or identifiable natural person; (ii) that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, persistent identifiers, and (iii) that may otherwise be considered “personal data” or “personal information” under applicable Data Protection Laws.
“Platform” means Vendor’s baseline subscription software as a service product made available to Company under this Agreement, including Vendor’s proprietary online ordering software platform called Shop and Shop+ by Cut+Dry, which will allow Company’s Customers to order products from Company.
“Professional Services” are certain professional services that are performed by the Company under an Order.
“Services” means the Platform and if applicable certain products or services related to the Platform, including but not limited to the Premium Services, and Professional Services, each to the extent ordered or activated by Company in connection with an Order and made available by Vendor.
“Vendor,” “we,” “our,” or “us” means Cut and Dry Inc., a Delaware Corporation (formerly Codify AI Inc.).
Services. Subject to the terms of this Agreement, and pursuant to mutually agreed-upon Orders, Vendor will provide Company the Services. Services may be provided by Vendor in partnership with its affiliate Cut+Dry Inc. Each Order will be deemed incorporated into this Agreement by reference. To the extent that a conflict arises between the terms of an Order and the terms of this Agreement, the Order will control. Vendor may utilize subcontractors to perform all or a portion of the Services.
3. Integration Requirements; Access and Use of the Platform; Customer Acquisition.
3.1: ERP Integration. Integration with Company’s Product Book is required prior to Company’s use of the Platform. In order to effectuate the Services, Vendor will use commercially reasonable efforts to integrate the Platform with Company’s existing Product Book (and enterprise resource planning solution (“ERP”) if applicable), including migrating Company’s existing online ordering system to the Platform (the “ERP Integration”). Following the completion of the ERP Integration, Vendor will provide Company and its Authorized Users access to the Platform. To complete the ERP Integration, Company agrees to:
- provide Vendor with the resources and assistance required for completing the ERP Integration;
- provide Vendor with a list of all the items it sells (“Company Products”) including their respective prices, SKUs, existing product photography and other applicable information regarding such items as requested by Vendor (“Product Book”), which may be updated by Company from time to time upon notice to Vendor;
- ensure that Company has acquired the necessary rights from Company’s ERP provider to allow Vendor to integrate the ERP to the Platform; and
- direct its ERP’s provider to work with and assist Vendor in completing the ERP Integration.
The parties agree that Company’s fulfillment of its responsibilities above are necessary for the successful integration of the Platform and that Vendor will not be liable for any delays in performing the ERP Integration or failure to provide the Platform resulting from the acts or omissions of Company or its ERP provider.
3.2: Platform Access. Following the completion of the ERP Integration and subject to the terms herein, Vendor hereby grants Company, during the term set forth in the applicable Order, a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Platform solely for Company’s internal business purposes. No implied license(s) are granted herein, and Company may not use the Platform except pursuant to the limited rights granted in this Agreement and the applicable Order. Any additional rights of Company to any deliverables developed, or any Platform licensed, under this Agreement will be set forth in the applicable Order. For clarity, Customers do not have a right to use and access the Platform under the Agreement and will be required to enter into an independent and separate agreement with Vendor upon signing up for the Platform.
3.3: Platform Restrictions. The Platform constitutes protected copyrighted material and valuable trade secrets of Vendor. Accordingly, Company will not (a) authorize or permit use of the Platform by persons other than its employees, agents and independent contractors of Company who are authorized by Company to use it (“Authorized Users”), (b) sublicense, lease, rent, loan or otherwise transfer to any third party the right to access and use the Platform, (c) use or access the Platform for the purpose of building a competitive product, (d) copy, frame, modify or create any derivative works of the Platform (or any component, part, feature, function, user interface, or graphic thereof), except to the extent such restriction is prohibited by applicable law, (e) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Platform is compiled or interpreted, (f) use the Platform as part of a time-share, cloud services or service bureau or on a hosted basis for its own ASP or software offerings, (g) perform or disclose any benchmark or performance tests of the Platform, (h) perform or disclose any security testing of the Platform or associated infrastructure, including, but not limited to, network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing, (i) remove or modify any program markings or any notice of Vendor’s or its licensors’ proprietary rights, (j) send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights, (k) send or store malicious code in connection with the Platform, (l) attempt to gain access to the Platform or its related systems or networks in a manner not authorized by Vendor, or (m) cause or permit any Authorized Users or any other party to do any of the foregoing. Company is responsible for its Authorized Users’ compliance with the terms of this Section 3.2.
Company hereby acknowledges that the Platform is intended only to allow Customers and Company’s Authorized Users to use the Platform for the purposes set forth in this Agreement and any applicable Order (such as (as applicable to the Order) product marketing, search and purchase and post-purchase order tracking) and that the Platform is not intended for storage or use of any data not related to such purpose, such prohibited data including, without limitation, social security numbers, location of persons, health information, driver’s license, or passport or visa number (“Prohibited Data”). Company and its Authorized Users will not input any Prohibited Data into or derive Prohibited Data from the Platform.
3.4: Access Protocols. Vendor shall provide to Company the necessary access credentials and protocols to allow Authorized Users to access the Platform (the “Access Protocols”). As between Company and Vendor, Company shall be responsible for all acts and omissions of Authorized Users, including those which, if undertaken by Company, would constitute a breach of this Agreement, and any act by a person (whether or not an Authorized User) using Company’s Access Protocols. Company is responsible for maintaining the confidentiality of all Access Protocols and will immediately notify Vendor of any suspected security breach or unauthorized access to the Access Protocols.
3.5: Account Administration. Company shall designate at least one Authorized User to act as an administrator and principal point of contact with Vendor for purposes of this Agreement and any applicable Order.
3.6: No Interference with Service Operations. Company and its Authorized Users will not (a) interfere with or disrupt performance of the Platform or the data contained therein, (b) circumvent, disable, or interfere with security-related features of the Platform or features that prevent or restrict use, access to, or copying the Platform or any content or other data belonging to other users, or that enforce limitations on use of the Platform or any content belonging to other users, or (c) impose an unreasonable or disproportionately large load on the Platform’s infrastructure.
3.7: Scheduled Maintenance. Vendor reserves the right to take down applicable servers hosting the Platform to conduct scheduled and emergency maintenance. Vendor will use commercially reasonable efforts to perform scheduled maintenance outside regular business hours and will provide advance notice for nonemergency maintenance. Vendor will not be responsible for any damages or costs incurred by Company due to unavailability of the Platform during scheduled or emergency maintenance.
3.8: Products and Fulfillment. Company represents and warrants that it will comply, and prepare, sell, market, and fulfill all Company Products in compliance, with all federal, state, and local laws, rules, regulations, and standards pertaining to the sale, marketing, safety and delivery of foods products and as otherwise applicable to the Company’s operation of its business and it will not offer for sale any potentially hazardous food, alcoholic beverage, tobacco product, or any other item prohibited by law. In the event that Company includes alcohol in its Company Products, Company further represents and warrants that it maintains any applicable liquor license or other permits and registrations for the sale, distribution and (if applicable) delivery of alcohol (collectively, “Liquor Licenses”) and will immediately notify Company if any Liquor License is not renewed or is revoked, cancelled or surrendered at any time the Vendor is providing Company Services. Company is responsible for any non-performance, non-delivery, misdelivery, theft, or other mistake or act in connection with the fulfillment of its products. Company is also responsible for any non-conformity or defect in, any public or private recall of, or safety alert of any of its products or other products provided in connection with Company products. Company will notify Vendor promptly as soon as it has knowledge of any public or private recalls, or safety alerts of its products made available on the Platform
3.9: Customer Acquisition and Competitive Marketing. Vendor will use commercially reasonable efforts to acquire Vendor Acquired Customers (defined below) through marketing and cross-selling Company Products and other offerings to end users of the Platform (“Customer Acquisition Services”). The fees for Customer Acquisition Services shall be as set forth in an Order. All Vendor Acquired Customers will be required to use the Platform to place all orders for Company Products. During the Initial Term and any renewal term, Vendor will not, without Company’s written consent, knowingly and proactively market any products of Partners that are substantially similar to the products in the Product Book provided to the Vendor for integration into the Platform (“Similar Products”) directly to Company Acquired Customers in the geographic region in within which such Similar Products are made available to such Company Acquired Customers.
3.10: “Company Acquired Customers” means any Customer, who as a result of Company’s marketing efforts (including but not limited to email marketing, sales person communications, flyers in shipped boxes, etc.) created a Customer account on the Platform and placed an order for Company Product(s) within the last 90 days or any Customer account that Vendor has manually created after Company provides Customer Data (account name, primary user first and last name, and primary user cell phone and email) and placed an order for Company Product(s) within 90 days of Customer account creation date. Upon Vendor’s request, Company will provide supporting documentation reflecting the method of acquisition of the Company Acquired Customer. “Vendor Acquired Customers” means all Customers other than Company Acquired Customers. “Partners” means foodservice distributor entities, other than Company, that distribute and/or sell products wholesale to restaurants or other end-customers through the Platform.
4. Fees and Payment Terms
4.1: General. Company will pay all applicable fees as set forth in each Order. Unless otherwise set forth in the Order, Company will reimburse all reasonable expenses Vendor incurs in the performance of the Professional Services. Unless otherwise set forth in an Order or the Premium Service Terms, Vendor will invoice Company for the Services on a calendar-monthly basis following the close of each calendar month and Company will pay all invoiced amounts within 15 days after receipt of each invoice. Vendor may charge interest for any past due amounts at a rate of the lesser of 1.5% per month or the highest rate allowed by law, and Company will indemnify Vendor for all costs, including expenses and attorney’s fees, Vendor incurs in the collection of overdue payments.
4.2: Computation of Transaction-Based Fees. To the extent that any Fees are based on a percentage of a Customer Order (defined below) arising from the Platform, such percentage shall be based on the gross amount charged for such Customer Order, including sales and any other applicable taxes attributable to the purchase price (“Net Sales Proceeds”).
4.3: Invoicing. Services subject to monthly subscription fees will be invoiced by the Company on a calendar-monthly basis following the close of each calendar month and due and payable within 15 days after receipt of each invoice. Set-up and hardware fees will be invoiced upon receipt by Company of the applicable services or hardware and due and payable within 15 days after receipt of each invoice. To the extent that Company activates the Pay+ Service, then the transaction-based fees for the Pay+ Service will be charged and collected against payment receipts as set forth in Premium Services Terms.
4.4: Service and Hardware Taxes. Fees quoted in any Order are exclusive of, and unless otherwise expressly specified, Company is responsible for, all sales, use, excise, value added, and other taxes, duties, levies, or similar charges, however designated, that are levied by any governmental or taxing authority relating to the activities governed by the Agreement, including any taxes assessed or required to be collected, paid, or withheld in connection with Company’s receipt of the Services or products (“Service and Product Taxes”), but excluding taxes in respect of Vendor’s net income. Vendor may its sole discretion calculate, collect, or pay estimated Service and Product Taxes and, if it does so, Vendor reserves the right to charge and Company will pay any Service and Product Taxes (in addition to Fees) as reasonably calculated by Vendor. Calculation of Service and Product Taxes by Vendor may be estimated at the time an order under an Order is placed, based on, among other things, rates applicable to the billing address provided to Vendor, and subsequently adjusted to conform to applicable law or regulation.
4.5: Customer Transaction Sales Tax Computation and Reporting.
- Services subject to monthly subscription fees will be invoiced by the Company on a calendar-monthly basis following the close of each calendar month and due and payable within 15 days after receipt of each invoice. Set-up and hardware fees will be invoiced upon receipt by Company of the applicable services or hardware and due and payable within 15 days after receipt of each invoice. To the extent that Company activates the Pay+ Service, then the transaction-based fees for the Pay+ Service will be charged and collected against payment receipts as set forth in Premium Services Terms.
4.6: Fee Increases. For any renewal term Vendor may increase the applicable Fees by providing Company with written notice prior to the commencement of the applicable renewal term.
5.1: Confidential Information. “Confidential Information” means any and all proprietary or confidential data and information disclosed by a party (the “Discloser”) to the other party (the “Recipient”), or obtained by or on behalf of the Recipient through inspection or observation of the foregoing; in any case whether in writing, or in oral, graphic, electronic or any other form, and whether disclosed or obtained before, on, or after the Effective Date. The Confidential Information of Vendor includes (a) any software, including both source and object code, (b) any other deliverables and documents furnished by Vendor (including, without limitation, the oral and visual information relating thereto and provided in Vendor publications), (c) the terms of and pricing under any Order, (d) any software specifications, (e) the architecture, structure, protocols, business, operational and technical information including but not limited to any and all strategies, formulas, product formulations, concepts, techniques, processes, designs, secrets, methods, cost data, computer programs, software, scientific or technical know-how, and financial, marketing, (f) the business plans, forecasts, projections and analyses related to Vendor’s business, (g) business procedures, marketing plans, and client lists or personal data, any and all information concerning the suppliers or customers of Vendor, and (h) any and all other information in any form or media supplied to Company by Vendor or that Company obtained or received or developed or otherwise acquired in the course of or as a result of Company’s relationship with Vendor (collectively “Vendor Proprietary Information”).
5.2: Exclusions. Confidential Information does not include information that (a) is or becomes publicly known through no act or omission of the Recipient, (b) was rightfully known by Recipient without confidential or proprietary restriction before receipt from the Discloser, (c) becomes rightfully known to Recipient by a third party without confidential or proprietary restriction from the Discloser, (d) is independently developed by the Recipient without the use of or reference to the Confidential Information of the Discloser, or (e) is otherwise expressly excluded in an applicable Order.
5.3: Nondisclosure and Nonuse. Except as otherwise set forth in this Agreement or in an applicable Order, each party (a) will maintain in confidence the Confidential Information of the other party, (b) will not use or grant the use of the Confidential Information of the other party except to the extent reasonably necessary in connection with such party’s activities as expressly authorized by this Agreement, and (c) will not disclose the Confidential Information of the other party except on a need-to-know basis to such party’s directors, officers, employees, and consultants, to the extent such disclosure is reasonably necessary in connection with such party’s activities as expressly authorized by this Agreement. To the extent that disclosure to any person is authorized by this Agreement, prior to disclosure, a party will require that the recipient be bound by similar confidential obligations with respect to the use of the Confidential Information of the other party except as expressly permitted under this Agreement. Each party will notify the other party promptly upon discovery of any unauthorized use or disclosure of the other party’s Confidential Information. Each party agrees that the terms and conditions of this Agreement will be treated as Confidential Information of both parties and will not be disclosed to any third party, provided, however, that each party may disclose the terms and conditions of this Agreement (i) to such party’s legal counsel, accountants, banks, financing sources and their advisors, (ii) in connection with the enforcement of this Agreement or rights under this Agreement, or (iii) in connection with an actual or proposed equity investment, merger, acquisition or similar transaction.
5.4: Permitted Disclosure. The confidentiality and non-disclosure obligations under this Section 5 will not apply to the extent that a party is required to disclose information by applicable law, regulation, rule (including rule of a stock exchange or automated quotation system), or order of a governmental agency or a court of competent jurisdiction or legal process, including tax authorities; provided, however, that the party will provide advanced written notice of such disclosure to the other party and provide the other party sufficient opportunity to object to any such disclosure or to request confidential treatment or a protective order (if applicable).
6. Intellectual Property Ownership
6.1: IP Ownership. Notwithstanding any terms to the contrary in this Agreement, as between the parties Vendor owns and will continue to own all right, title, and interest in and to all intellectual property rights embodied in or related to all discoveries, inventions, developments, improvements, works of authorship, information, data, know-how, ideas or other technology, intellectual property or results conceived, created, generated, developed or reduced to practice, whether directly or indirectly or solely or jointly with others, resulting from the performance of the Services, as well as the Platform and all Vendor Proprietary Information. Vendor may use, without limitation, the general knowledge, skills and experience of its personnel, and any ideas, concepts, know-how and techniques that are acquired or used in the course of providing the Services. Any derivative work Company or any Authorized Users may create of any part of the Services, and all rights be therein, shall be owned solely by Vendor. To that end, Company hereby irrevocably transfers and conveys to Vendor, without further consideration, all right, title and interest that Company or any Authorized User may have or acquire in any such derivative work.
6.2: Company’s Trademarks. Company hereby grants to Vendor during the term of this Agreement, a non-exclusive, worldwide, royalty-free license to use and display the Company’s name, logo and other trademarks (“Company Trademarks”) designated by Company to provide the Services to Company’s customers and to market and/or cross-sell Company product offerings to other customers of the Platform. Subject to the foregoing license, Company will retain all intellectual property rights that it may have in and to the Company Trademarks, and all use thereof by Vendor shall inure to the sole benefit of Company.
6.3: Company Data. Subject to Section 6.4 Company hereby grants to Vendor during the term of this Agreement a non-exclusive, non-transferable right and license to access, use, host, copy, display, process, transmit, create derivative works of and deliver Company Data (including the Product Book (as defined in the applicable Order)) as necessary for Vendor to (a) provide any of the Services to Company and its customers, (b) provide Company any applicable support as set forth in the applicable Order, (c) to improve the operation of the Services, (d) provide the Services to new customers as described in the applicable Order, and (e) to cross sell and/or market Company’s product offerings to other customers using the Services. Company hereby authorizes Vendor to store copies of any or all of Company Data as Vendor deems necessary in order to facilitate the operation of the Service. Company represents and warrants that (a) it has all rights, consents and/or permissions necessary to grant the licenses in this Section 6.3, including under any and all copyright, trademark, and other intellectual property rights, as well as any moral rights, rights of privacy, rights of publicity and similar rights of any type in or to Company Data, (b) use of any such Company Data (including derivative works) by Vendor, Customers, or Vendor’s partners, and in compliance with the foregoing licenses, does not and will not infringe any intellectual property rights of any third party, and (c) the Company Data do not violate any state or federal law, rule, or regulation applicable thereto, including with respect to electronic advertising. Company may not upload to or otherwise make available on the Platform or to Vendor any content or data for which Company does not have all necessary rights, licenses, consents or permissions needed to so make available such content or data on the Service. If Company Data includes data of third party persons (such as data licensed to Company by third parties) Company is responsible for ensuring such third parties have consented to the collection and sharing of such data with Vendor for the purposes set forth herein and shall not include in Company Data any content or data for which it does not have all necessary rights, licenses, consents or permissions. If Company elects to utilize any third-party application in connection with its use of the Service, by doing so Company consents to its content and data being shared with such third-party applications and agrees that Vendor is not an agent or broker or otherwise responsible for the activities or policies of those third-party applications. Company is solely responsible for the accuracy, quality, content and legality of Company Data and any transfer of Company Data outside of the Platform by Company or any Authorized User. Company is responsible for ensuring its systems are fully protected against unauthorized breaches and maintaining backups of Company Data at all times. While Vendor may archive certain Company Data while the Company’s accounts are active and not in default, if there is any loss of Company Data, Company’s exclusive remedy is for Vendor to use commercially reasonable efforts to attempt to replace or restore the lost data from the latest backup (if any) of the Company Data that Vendor has maintained in accordance with its ordinary storage procedures. Without limiting any of the foregoing, Company is solely responsible for archiving Company Data for use after the close of an account.
6.6: Feedback. Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback provided by Company to Vendor with respect to the Services or Vendor’s business (collectively, “Feedback”) will be owned by Vendor and constitute Confidential Information of Vendor which may not be disclosed to any third party. Vendor will be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind, on account of intellectual property rights or otherwise.
7.1: Mutual Warranties. Each party represents and warrants to the other party that (a) such party has full power and authority to enter into this Agreement and to perform its obligations under this Agreement, (b) this Agreement is a legal and valid obligation binding upon such party and enforceable in accordance with its terms, and (c) this Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which such party is a party or by which such party is bound.
7.2: Professional Services Warranty. Vendor warrants that the Professional Services will be performed with reasonable care in a diligent and workmanlike manner, consistent with industry standards. Vendor’s sole obligation and liability and Company’s sole and exclusive remedy for breach of this warranty will be for Vendor to re-perform any Professional Services brought to its attention by Company within 10 days after the Professional Services are performed.
8. Disclaimer and Limitation of Liability
8.1: EXCEPT AS SET FORTH IN SECTION 2, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VENDOR PROVIDES THE SERVICES, INCLUDING THE PLATFORM AND ANY SOFTWARE RELATED TO THE SERVICES, ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND AND USE OF THE PLATFORM AND RELATED SOFTWARE IS AT COMPANY’S OWN RISK. VENDOR HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. COMPANY ASSUMES COMPLETE RESPONSIBILITY, WITHOUT ANY RECOURSE AGAINST VENDOR, FOR THE SELECTION OF THE SERVICES TO ACHIEVE COMPANY’S INTENDED RESULTS AND FOR ITS USE OF THE RESULTS OBTAINED FROM THE SERVICES OR ANY SOFTWARE RELATED TO THE SERVICES IN COMPANY’S BUSINESS. COMPANY ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED FROM USE OF THE SERVICES, INCLUDING THE COMPLETENESS, ACCURACY, AND CONTENT OF SUCH RESULTS. VENDOR DOES NOT WARRANT THAT THE SERVICES WILL MEET COMPANY’S REQUIREMENTS, THAT THE OPERATION OF THE PLATFORM OR ANY SOFTWARE COMPRISING THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
8.2: EXCEPT TO THE EXTENT PROHIBITED BY LAW IN NO EVENT WILL VENDOR BE LIABLE TO THE COMPANY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT.
8.3: SUBJECT TO THE EXCLUSION EXCEPTIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT IN AN AMOUNT THAT EXCEEDS THE TOTAL AMOUNT PAID TO VENDOR IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE FIRST CLAIM UNDER THIS AGREEMENT. “EXCLUSION EXCEPTIONS” SHALL MEAN THE PARTIES’ LIABILITY FOR:
ITS INDEMNIFICATION OBLIGATIONS IN SECTION 9;
ITS BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION 5;
ITS FRAUD OR FRAUDULENT MISREPRESENTATION;
COMPANY’S FEES OBLIGATIONS (UNDER SECTION 4 OR OTHERWISE)
COMPANY’S VIOLATION OF LAW UNDER SECTION 11; OR
MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY IN SECTION 7 FAILS OF ITS ESSENTIAL PURPOSE.
9.1: Company Indemnity. Subject to Section 3, to the maximum extent permitted by applicable law, Company will defend, indemnify and hold Vendor harmless from all losses, liabilities, damages and expenses (including reasonable attorneys’ fees and costs) incurred as a result of any claim, demand, action or proceeding by a third party to the extent arising out of or caused by (a) Company’s unauthorized use of the Platform or any deliverables created for Company as a result of any Professional Services, (b) Company’s breach of the representations and warranties in Section 6.3 (Company Data) and Section 7.1 (Mutual Warranties), (c) Company’s breach of the obligations set forth in Section 5 (Confidentiality), (d) Company products or services, including the offer, sale, fulfillment (except to the extent directly attributable to the Services), refund, cancellation, return, or adjustments thereof and for the avoidance of doubt any product liability or similar claims arising or resulting from the use of any products, (e) the sales, use, or other taxes and regulatory fees assessed, incurred, or required to be collected or paid for in connection with any advertisement, offer or sale of Company products (made on through or in connection with the Services), or the failure to meet Company’s related tax registration obligations or duties or (f) Company’s breach of the obligations set forth in Section 11 (Compliance with Law).
9.2: Vendor Indemnity. Subject to Section 3, to the maximum extent permitted by applicable law, Vendor will defend, indemnify and hold Company harmless from all losses, liabilities, damages and expenses (including reasonable attorneys’ fees and costs) incurred as a result of any claim, demand, action or proceeding by a third party to the extent arising out of a claim that Company’s authorized use of the Services infringes the U.S. intellectual property rights of a third party. Vendor has no obligation to indemnify, defend or hold Company harmless (a) if the Services are altered or modified by Company or anyone else authorized by Company other than Vendor, (b) to the extent that an infringement claim is based upon any software, design, specification, instruction, data or other material not furnished by Vendor, (c) to the extent an infringement claim is based upon the combination of the Services with any products or services not provided to Company by Vendor or use of the Services inconsistent with Documentation provided by Vendor. If Vendor believes or it is determined that the Services may violate a third party’s intellectual property rights, Vendor may choose in its reasonable discretion to (x) modify the Services to be non-infringing, provided such modifications do not materially diminish the functionality of the Services, (y) obtain a license for Company to allow for Company’s continued use of the Services, or (z) terminate Company’s access and use of the Services and refund to Company any prepaid but unaccrued fees as of the effective date of termination. This Section 9 provides Company’s exclusive remedies and liabilities for any type of claim or damages described in this section.
9.3: Indemnification Procedures. If any action shall be brought against either party in respect to which indemnity may be sought from the other pursuant to the provisions of this Section 9, the indemnified party shall promptly notify the indemnifying party in writing, not later than 30 days after the indemnified party receives notice of the claim, specifying the nature of the action and, to the extent possible, the total monetary amount sought or other such relief as is sought therein. The indemnified party shall cooperate with the indemnifying party in all reasonable respects in connection with the defense of any such action. The indemnifying party will have sole control over the defense and settlement of the action, provided the indemnifying party shall not enter into any settlement that involves any admission of liability or payment by the indemnified party without its written consent. Subject to the indemnified party’s compliance with the terms of this Section 9, the indemnifying party shall pay any and all costs, damages and expenses, including, without limitation, all reasonable attorneys’ fees and costs, awarded against the indemnified party by a court of competent jurisdiction as a result of any claim for which the indemnified party is being indemnified.
10. Term and Termination
10.1: Term and Termination. This Agreement commences on the date Company first accepts it (by signature) and continues and continues through the initial term described in the Order (the “Initial Term”) until terminated as set forth in this Section and the Order. Unless specified otherwise in an Order the Initial Term of the Order shall automatically renew for additional, successive thirty-six (36) month periods (each a “Renewal Term”), unless either party provides written notice of its intent not to renew at least ninety (90) days prior to the end of the Initial Term of the then-current Renewal Term. Either party may terminate this Agreement (a) upon 60 days’ written notice in the event there are no operative Orders outstanding, or (b) if the other party breaches this Agreement and fails to cure the breach within the 30-day period commencing upon its receipt of written notice of the breach.
10.2: Effect of Termination. In the event of any termination or expiration of this Agreement, (a) all rights granted to Company hereunder will immediately cease, (b) Company will immediately discontinue all use of the Services, (c) Company will promptly cease use of any applicable Platform, (d) Company will certify to Vendor in writing that it has completed (a) and (c) above, (e) Vendor will immediately cease providing all Services under this Agreement, (f) Company will immediately pay to Vendor all amounts due and payable up to the effective date of termination of this Agreement, and (g) this sentence and Sections 4, 5, 6, 1, 8, 9, 11, and 12 will survive any expiration or termination of this Agreement.
11. Compliance with Law
In connection with this Agreement, Company and its agents will comply with all applicable laws and regulations, including (without limitation) health and safety laws, state licensing laws and data privacy and security laws. Company agrees not to use the Services, including the Platform, in a manner that would violate applicable law. In no event will Vendor be liable for any Company violation of law.
12.1: Exclusivity. Except as otherwise set forth in an applicable Order, the relationship, if any, established by this Agreement is of a non-exclusive nature.
12.2: Entire Agreement. In the event of a conflict between this Agreement and an attached exhibit (Order), the exhibit will govern. This Agreement (together with the attached exhibit(s)) sets forth the entire agreement and understanding of the parties relating to the subject matter of this Agreement and supersedes any other agreements or understanding with respect to such subject matter, unless made in writing and expressly incorporated into the Agreement and subject to Section 12.7.
12.3: Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by a party, by operation of law or otherwise, without the prior written consent of the other party, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Notwithstanding the foregoing, Vendor may assign this Agreement to any successor to substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise without such consent. This Agreement will be binding upon and enforceable against any successor or permitted assignee.
12.4: Force Majeure. Neither party will be liable for delays in its performance caused by events beyond its reasonable control, such as fires, floods, epidemics, computer viruses, earthquakes, riots, acts of terror, acts of God, storms, labor shortages or strikes, acts of civil or military authority or similar occurrences.
12.5: Publicity. Company consents to (a) Vendor’s use of Company’s name and logo (i) on the Vendor website and publicly-available printed materials, identifying Company as a customer of Vendor and describing Company’s use of the Services on a non-confidential basis, or (ii) as otherwise set forth in the applicable Order, and (b) a press release with respect to Company’s use of the Services.
12.6: Notices. Any notice or communication under this Agreement must be in writing, signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, or mailed by registered or certified mail, in each case to the address of the receiving party as identified in this Agreement or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered.
12.7: Right to Amend. Subject to the terms hereunder and applicable law, Vendor has the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services (an “Agreement Change”) with notice that is reasonable in light of the circumstances (by, for example, posting the updated Agreement on its website (which will be effective immediately upon posting unless otherwise stated) or sending Company notice via email or through the Services). Use of the Services after notice of any Agreement Change will confirm that Company has read, accepted, and agreed to be bound by the modifications to the Agreement or constitute Company’s acceptance of the changed Services, as applicable. Notwithstanding the foregoing, in the event that any Order is amended or renewed past the Initial Term of the Order or any applicable Renewal Term, as applicable, upon amendment or renewal of such Order the then-current Agreement will apply. Further, (a) any dispute that arose before the effective date of an Agreement Change shall be governed by the version of the Agreement that was in place when the dispute arose and (b) in the event that an Agreement Change negatively and materially impacts Company’s rights under this Agreement, then Company may terminate the Agreement and any Order by providing written notice thereof to Vendor, provided such notice must be given within 30 days following the date of notice by Vendor of the Agreement Change.
12.8: Waiver; Severability. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy will operate as a waiver or affect any other right or remedy. If any provision is deemed by a court unenforceable or invalid, that provision will be stricken or modified so as to be enforceable to the maximum extent permitted by law, and the remainder of this Agreement will be in full force and effect.
12.9: Independent Contractors. The relationship between the parties is that of independent contractors, and subject to the limited purposes of Vendor providing payments processing services (if Company subscribes to such services) Vendor is not Company’s agent and neither party has authority to contract for or bind the other party in any manner whatsoever.
12.10: Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. The state or federal court in San Francisco, California will be the jurisdiction in which any suits must be filed if they relate to this Agreement.
12.11: Counterparts. This Agreement may be executed by the parties by exchange of signature pages by mail, facsimile, email or other electronic means (if email or electronically, signatures in Adobe PDF, via electronic signature or similar format), in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument.
The following terms govern Shop+ Service, the Track+ Service, and the Pay+ Service, services to which Company may upgrade at any time during the Initial Term or any renewal term.
A1. THE SHOP+ SERVICE
A1.1. Shop+ Service Overview. The Shop+ Service is a premium feature for integrated foodservice distributor entities that provides an enhanced e-commerce product marketing, search and discovery experience for Company’s Customers through the following functionality:
- Taxonomy and attribution engine to convert Company Product Book and marketing collateral to an eCommerce ready format;
- Rich content such as photography, gifs, and detailed product descriptions;
- Customer order management;
- Boost+ marketing services for both foodservice distributors and manufacturer suppliers;
- Distributor Supplier Portal (access to Shop+ Product catalog, data analytics, unified communication platform).
The Fees for the Shop+ Service shall be as set forth in the applicable Order.
A1.2. Company Obligations for Shop+.
- Company Data. For the avoidance of doubt Company is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of Company Data, including but not limited to Company Product descriptions, pricing and marketing collateral and other advertising materials related to the Products or the Company, and for obtaining all rights related to Company Data required by Vendor to perform the Shop+ Service.
- Sales; Fulfillment; Customer Service. Company is the seller of record of Company Products. Company shall (a) offer, sell and fulfill Company Products in accordance with the terms of this Agreement and the information about its Products provided to Customers on the Platform at the time of sale; (b) cancel your Customer Orders as permitted pursuant to terms and conditions appearing on the Platform at the time of the applicable order; and (c) identify itself as the seller of each of the Products in all information included, or provided in connection, with Company Products. Company remains fully responsible for its fulfillment of any Company Products purchased by Customers via the Shop+ Services, the invoicing and collection of amounts owed by Customers for purchases (unless Company subscribes to the Pay+ Services), and any returns, mistakes or other customer service issues arising from the Company Products (without derogating from Company’s obligations as further set forth in the Agreement). For example, the coordination and cost of return shipping for a Company Product (in connection with a Customer complaint to Company) is the Company’s responsibility. Company is also responsible for sales, use, or other taxes and regulatory fees assessed, incurred, or required to be collected or paid for in connection with any advertisement, offer or sale of Company products (made on through or in connection with the Services). For the avoidance of doubt, Company is solely responsible for all customer service issues relating to Company Products, including pricing, order fulfillment, order cancellation, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback concerning experiences with Company personnel, policies, or processes. In performing customer service, Company will always present itself as a separate entity from Vendor.
- Additional Restrictions. In addition to any restricted behavior set forth in the Agreement Company is not permitted to engage in any action on the Platform designed to complete or facilitate (i) the exchange of information, including but not limited to Personal Information, or (ii) a Customer Order, in each case outside the Platform except as related to the purposes of facilitating a Customer Order on the Platform.
A1.3. Publicity. During the term of the Shop+ Service, Company grants Vendor, its affiliates, and any third party service providers designated by Vendor a non-exclusive, nontransferable, worldwide license to use Company’s trade names, trademarks, logos, service marks, and other identifying marks for the purposes of any promotion (such as marketing or advertising) of Company in connection with the Shop+ Service. That promotion may include advertisements and other marketing materials shared publicly or with targeted third parties such as prospective Company customers.
A2. THE PAY+ SERVICE
A2.1. Pay+ Service Overview. The Pay+ Service comprises of automated invoicing and Transaction Processing Services (defined below) that extract detailed data from Company’s physical or digital invoices (“Data Extraction”) and give Customers the ability to complete payment for Company Product purchases on the Platform via credit card or ACH (“Automated Orders”). Upon submission of an order for a Company Product Customer will immediately receive a digitized order invoice (a “Digitized Invoice”) and be able to review pending, delivered and paid invoices by accessing their Customer Account on the Platform. Through the Platform Vendor facilitates the payments by Customers of one or more Digitized Invoices (via credit card or ACH) and payment is remitted to Company’s authorized financial institution. For each Automated Order, Company will retain a portion of that transaction as a fee equal to the Fees that is set forth in the Order. The Fees for the Pay+ Service shall be as set forth in the applicable Order.
A2.2. Payment Processing.
- Appointment of Agent. For each Automated Order, Company authorizes the Vendor to act as its agent for purposes of processing payments, refunds and adjustments for the applicable Automated Order, receiving and holding Net Sales Proceeds on Company’s behalf, remitting the Net Sales Proceeds (less any Fees or applicable Taxes) to Company’s bank account, and paying Vendor amounts Company owes in accordance with this Agreement (the “Transaction Processing Services”). Company agrees that Customers satisfy their obligations to Company for the Customer Orders in full when Vendor receives the Net Sales Proceeds. As such, the Company is obligated to the Customer on all funds accepted by Vendor within the scope of its agency. Vendor may establish a reserve on Company’s account based on Vendor’s assessment of risks to it or third parties posed by Company actions or performance, and Vendor may modify the amount of the reserve from time to time in its sole discretion. Sales Proceeds from Automated Orders will be credited to Company’s available balance when they are received by Vendor.
- Payout of Sales Proceeds. The Net Sales Proceeds arising from Customer Orders are processed and received by Vendor and subject to A2.2. clause (c) below within three banking days of receipt by Vendor of Net Sales Proceeds Vendor will deliver to the Company (via direct bank deposit or check or other method agreed to by the parties) the aggregate purchase price of all Customer Orders that were so received by Vendor, less Vendor’s transaction Fees, and any taxes that Vendor automatically calculates, collects and remits to a tax authority according to applicable law (the “Transaction Fee”). The applicable Transaction Fees are set forth in the Order. Company will accept and fulfill Automated Orders in the same manner as it accepts and fulfills any other orders.
- Holds and Restricted Funds. To protect Vendor from risk of liability for Company actions as a seller, Vendor or its banking partners may create reserves or restrict access to funds in Company’s account based on certain factors, including, but not limited to, Company selling history, Company performance, returns, or transaction value.
- Payout Account. Vendor will, with its banking partners, arrange to settle funds to the bank or other financial institution account that Company designates (the “Payout Account”). Company affirms that it is authorized to initiate settlements to and debits from the Payout Account, and that the Payout Account is owned by Company and administered and managed by a financial institution located in the United States of America. If Company updates the Payout Account then you must ensure that you continue to comply with the requirements of this section..
- Returns; Cancellations; Disputes. If a Company Product or an order for a Company Product is cancelled or reversed after payment is submitted to Company, then Company shall bear the full cost of any refund, payment reversal or credit that is due the Customer, unless the refund, reversal or credit is due to the fault of Vendor. To refund or credit the Customer or otherwise reverse a Customer Order, Company (as seller) authorizes Vendor or its banking partners to debit the applicable refund, credit or reversal amount (in same or other currency) from Company’s account or otherwise charge Company provided, however, if Company elects to directly refund a Customer for any reason, such election shall not obligate Vendor to provide a corresponding reimbursement to Company.
A2.3. Invoice Automation. Company Agrees that the invoice automation component of the Pay+ Service extracts data from the invoices provided to Vendor from Company or collected from Vendor and Company is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of such data, including line item pricing, that is subject to Data Extraction or any other component of invoice automation.
A3. THE TRACK+ SERVICE
A3.1. Track+ Service Overview. The Track+ Service provides a suite of logistics technology services to optimize the post-purchase delivery and fulfillment process through a cloud-based online software solution. Features vary depending on Company’s needs and infrastructure and the fees arrangement but may include:
- Customer Insights
- Delivery Tracking (the freight location of ordered Company Products)
- Dropoff Confirmation
- Invoice Confirmation
- Vendor Insights
- Delivery Routing
- Dropoff Confirmation
- Route Optimization
- Local Area Aggregation
- Drop Size Incentives
The Fees for the Track+ Service shall be as set forth in the applicable Order.