Effective: November 3, 2023
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 any Distributor Material that is aggregated or de-identified in a format such that neither Distributor, its customers or any other person or household may be identified.
“Content” means the audio and visual information, Documentation, software specifications, software, product data or images, products and services made available via the Platform, other than Distributor Materials and Distributor Confidential Information. Content includes Anonymized Data and any information or data derived from Cut+Dry’s monitoring of access to or use of the Platform by Distributor or end-users but does not include Distributor Materials.
“Customer” means Distributor’s customers who purchase Distributor products.
“Customer Data” means any data, information, or other materials provided and/or uploaded by Customers to the Platform or collected by Cut+Dry from Customers 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 Distributor Products through the Platform.
"Cut+Dry," “Vendor”, "we," "our," or "us" means Cut and Dry Inc., a Delaware corporation (formerly Codify AI Inc.).
“Distributor” or “Company” means you or your entity.
“Distributor Materials” means any files, graphics, text, emails, data or other information, content or materials provided by Distributor (or its agents or licensors) to Cut+Dry in connection with this Agreement, or uploaded by Distributor to the Platform or collected by Cut+Dry from Distributor, including without limitation Distributor’s contact information, employee information, Distributor’s proprietary Product Book, products, images, promotional information, information regarding product purchasing and transactions, or other material submitted by Distributor to Cut+Dry. Distributor Materials does not include Customer Data (as defined hereunder).
“Documentation” means any manuals, instructions or other documents or materials that Cut+Dry provides or makes available to Distributor 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 Cut+Dry’s baseline subscription software as a service product made available to Distributor under this Agreement, including Cut+Dry’s proprietary online ordering software platform called Shop, Track, Pay, and Boost by Cut+Dry, which will allow Distributor’s Customers to order products from Distributor.
“Professional Services” are certain professional services that are performed by Cut+Dry 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 Distributor in connection with an Order and made available by Cut+Dry.
The parties agree that Distributor’s fulfillment of its responsibilities above are necessary for the successful integration of the Platform and that Cut+Dry 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 Distributor or its ERP provider.
3.2 Platform Access. Following the completion of the ERP Integration and subject to the terms herein, Cut+Dry hereby grants Distributor, 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 Distributor’s internal business purposes. No implied license(s) are granted herein, and Distributor may not use the Platform except pursuant to the limited rights granted in this Agreement and the applicable Order. Any additional rights of Distributor 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 Cut+Dry upon signing up for the Platform.
3.3 Platform Restrictions. The Platform constitutes protected copyrighted material and valuable trade secrets of Cut+Dry. Accordingly, Distributor will not (a) authorize or permit use of the Platform by persons other than its employees, agents and independent contractors of Distributor who are authorized by Distributor 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 Cut+Dry’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 Cut+Dry, or (m) cause or permit any Authorized Users or any other party to do any of the foregoing. Distributor is responsible for its Authorized Users’ compliance with the terms of this Section 3.3.
Distributor hereby acknowledges that the Platform is intended only to allow Customers and Distributor’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”). Distributor and its Authorized Users will not input any Prohibited Data into or derive Prohibited Data from the Platform.
3.4 Access Protocols. Cut+Dry shall provide to Distributor the necessary access credentials and protocols to allow Authorized Users to access the Platform (the “Access Protocols”). As between Distributor and Cut+Dry, Distributor shall be responsible for all acts and omissions of Authorized Users, including those which, if undertaken by Distributor, would constitute a breach of this Agreement, and any act by a person (whether or not an Authorized User) using Distributor’s Access Protocols. Distributor is responsible for maintaining the confidentiality of all Access Protocols and will immediately notify Cut+Dry of any suspected security breach or unauthorized access to the Access Protocols.
3.5 Account Administration. Distributor shall designate at least one Authorized User to act as an administrator and principal point of contact with Cut+Dry for purposes of this Agreement and any applicable Order.
3.6 No Interference with Service Operations. Distributor 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. Cut+Dry reserves the right to take down applicable servers hosting the Platform to conduct scheduled and emergency maintenance. Cut+Dry will use commercially reasonable efforts to perform scheduled maintenance outside regular business hours and will provide advance notice for nonemergency maintenance. Cut+Dry will not be responsible for any damages or costs incurred by Distributor due to unavailability of the Platform during scheduled or emergency maintenance.
3.8 Products and Fulfillment. Distributor represents and warrants that it will comply, and prepare, sell, market, and fulfill all Distributor Products in compliance, with all federal, state, and local laws, rules, regulations, and standards pertaining to the sale, marketing, safety and delivery of food products and as otherwise applicable to the Distributor’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 Distributor includes alcohol in its Distributor Products, Distributor 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 Distributor if any Liquor License is not renewed or is revoked, cancelled or surrendered at any time Cut+Dry is providing Distributor Services. Distributor is responsible for any non-performance, non-delivery, misdelivery, theft, or other mistake or act in connection with the fulfillment of its products. Distributor 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 Distributor products. Distributor will notify Cut+Dry 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. Cut+Dry will use commercially reasonable efforts to acquire Cut+Dry Acquired Customers (defined below) through marketing and cross-selling Distributor 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 Cut+Dry Acquired Customers will be required to use the Platform to place all orders for Distributor Products. During the Initial Term and any renewal term, Cut+Dry will not, without Distributor’s written consent, knowingly and proactively market any products of Partners that are substantially similar to the products in the Product Book provided to Cut+Dry for integration into the Platform (“Similar Products”) directly to Distributor Acquired Customers in the geographic region in within which such Similar Products are made available to such Distributor Acquired Customers.
3.10 “Distributor Acquired Customers” means any Customer, who as a result of Distributor’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 Distributor Product(s) within the last 90 days or any Customer account that Cut+Dry has manually created after Distributor provides Customer Data (account name, primary user first and last name, and primary user cell phone and email) and placed an order for Distributor Product(s) within 90 days of Customer account creation date. Upon Cut+Dry’s request, Distributor will provide supporting documentation reflecting the method of acquisition of the Distributor Acquired Customer. “Cut+Dry Acquired Customers” means all Customers other than Distributor Acquired Customers. “Partners” means foodservice distributor entities, other than Distributor, that distribute and/or sell products wholesale to restaurants or other end-customers through the Platform.
4.4 Service and Hardware Taxes. Fees quoted in any Order are exclusive of all taxes , and unless otherwise expressly specified, Distributor 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 Distributor’s receipt of the Services or products (“Service and Product Taxes”), but excluding taxes in respect of Cut+Dry’s net income. Cut+Dry may at its sole discretion calculate, collect, or pay estimated Service and Product Taxes and, if it does so, Cut+Dry reserves the right to charge and Distributor will pay any Service and Product Taxes (in addition to Fees) as reasonably calculated by Cut+Dry. Calculation of Service and Product Taxes by Cut+Dry may be estimated at the time an Order is placed, based on, among other things, rates applicable to the billing address provided to Cut+Dry, and subsequently adjusted to conform to applicable law or regulation.
4.5 Customer Transaction Sales Tax Computation and Reporting. Distributor is solely responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with Customer transactions (“Transaction Taxes”). In connection with the Shop+ & Boost+ Service or Pay+ Service (if applicable) Cut+Dry may charge and collect Transaction Taxes from Customers as an agent on behalf of Distributor or provide certain sales tax calculations (based on default settings or Distributor instructions) with respect to transactions with Customers as a convenience to Distributor. However, these calculations cannot be relied upon as advice for tax purposes in any federal, state, or local jurisdiction. It is Distributor’s sole responsibility to: (a) appropriately verify, input, and apply tax amounts and to apply the correct tax rates to determine what, if any, Transaction Taxes apply to payments Distributor makes or receives, (b) comply with federal, state, and local tax record-keeping requirements, and (c) consult with accounting professionals as necessary on tax-related matters. It is Distributor’s sole responsibility to collect, report, and remit the correct Transaction Taxes to the appropriate tax authority. Cut+Dry is not responsible for determining whether Transaction Taxes apply to Distributor’s transactions with Customers, or for collecting, reporting, or remitting any Transaction Taxes. Cut+Dry will not be liable for any owed taxes or fees or any losses or damages related to tax calculations in the Cut+Dry Services. For the avoidance of doubt, subject to applicable law, Cut+Dry is not obligated to, nor will it report or remit any Transaction Taxes to any tax authority. If fees imposed by Cut+Dry on any service, such as the Pay+ Service, are based on a percentage fee or subject to card processing fees, it is Distributor’s obligation to ensure that the fee charged does not result in the diminishment of the amount of Transaction Taxes reported or remitted to any tax authority. Distributor is solely responsible for maintaining any business records related to Distributor’s sales and gross receipts. Distributor may be asked to provide Cut+Dry with a valid Tax Identification Number for tax reporting purposes. An IRS Form 1099 may be issued in Distributor’s name for the value of payments made.
4.6 Fee Increases. For any renewal term Cut+Dry may increase the applicable Fees by providing Distributor with written notice prior to the commencement of the applicable renewal term.
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).
6.6 Feedback. Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback provided by Distributor to Cut+Dry with respect to the Services or Cut+Dry’s business (collectively, “Feedback”) will be owned by Cut+Dry and constitute Confidential Information of Cut+Dry which may not be disclosed to any third party. Cut+Dry 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.
8. Disclaimer and Limitation of Liability.
8.1 EXCEPT AS SET FORTH IN SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUT+DRY 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 DISTRIBUTOR’S OWN RISK. CUT+DRY 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. DISTRIBUTOR ASSUMES COMPLETE RESPONSIBILITY, WITHOUT ANY RECOURSE AGAINST CUT+DRY, FOR THE SELECTION OF THE SERVICES TO ACHIEVE DISTRIBUTOR’S INTENDED RESULTS AND FOR ITS USE OF THE RESULTS OBTAINED FROM THE SERVICES OR ANY SOFTWARE RELATED TO THE SERVICES IN DISTRIBUTOR’S BUSINESS. DISTRIBUTOR ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED FROM USE OF THE SERVICES, INCLUDING THE COMPLETENESS, ACCURACY, AND CONTENT OF SUCH RESULTS. CUT+DRY DOES NOT WARRANT THAT THE SERVICES WILL MEET DISTRIBUTOR’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 CUT+DRY BE LIABLE TO THE DISTRIBUTOR 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 CUT+DRY 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:
(a) ITS INDEMNIFICATION OBLIGATIONS IN SECTION 9;
(b) ITS BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION 5;
(c) ITS FRAUD OR FRAUDULENT MISREPRESENTATION;
(d) DISTRIBUTOR’S FEES OBLIGATIONS (UNDER SECTION 4 OR OTHERWISE)
(e) DISTRIBUTOR’S VIOLATION OF LAW UNDER SECTION 11; OR
(f) MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
8.4 THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY IN SECTION 7 FAILS OF ITS ESSENTIAL PURPOSE.
9.1 Distributor Indemnity. Subject to Section 3, to the maximum extent permitted by applicable law, Distributor will defend, indemnify and hold Cut+Dry 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) Distributor’s unauthorized use of the Platform or any deliverables created for Distributor as a result of any Professional Services, (b) Distributor’s breach of the representations and warranties in Section 6.3 (Distributor Materials) and Section 7.1 (Mutual Warranties), (c) Distributor’s breach of the obligations set forth in Section 5 (Confidentiality), (d) Distributor 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 Distributor products (made on through or in connection with the Services), or the failure to meet Distributor’s related tax registration obligations or duties or (f) Distributor’s breach of the obligations set forth in Section 11 (Compliance with Law).
9.2 Cut+Dry Indemnity. Subject to Section 3, to the maximum extent permitted by applicable law, Cut+Dry will defend, indemnify and hold Distributor 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 Distributor’s authorized use of the Services infringes the U.S. intellectual property rights of a third party. Cut+Dry has no obligation to indemnify, defend or hold Distributor harmless (a) if the Services are altered or modified by Distributor or anyone else authorized by Distributor other than Cut+Dry, (b) to the extent that an infringement claim is based upon any software, design, specification, instruction, data or other material not furnished by Cut+Dry, (c) to the extent an infringement claim is based upon the combination of the Services with any products or services not provided to Distributor by Cut+Dry or use of the Services inconsistent with Documentation provided by Cut+Dry. If Cut+Dry believes or it is determined that the Services may violate a third party’s intellectual property rights, Cut+Dry 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 Distributor to allow for Distributor’s continued use of the Services, or (z) terminate Distributor’s access and use of the Services and refund to Distributor any prepaid but unaccrued fees as of the effective date of termination. This Section 9 provides Distributor’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 Distributor first accepts it (by signature) 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 or 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 Distributor hereunder will immediately cease, (b) Distributor will immediately discontinue all use of the Services, (c) Distributor will promptly cease use of any applicable Platform, (d) Distributor will certify to Cut+Dry in writing that it has completed (a) and (c) above, (e) Cut+Dry will immediately cease providing all Services under this Agreement, (f) Distributor will immediately pay to Cut+Dry 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, Distributor and its agents will comply with all applicable laws and regulations, including (without limitation) health and safety laws, state licensing laws, and Data Protection Laws. Distributor agrees not to use the Services, including the Platform, in a manner that would violate applicable law. In no event will Cut+Dry be liable for any Distributor 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 Order, the Order will govern. This Agreement (together with any applicable Order and all exhibits, attachments, and addenda incorporated by reference herein and therein) 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, Cut+Dry 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 inure to the benefit of and 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. Distributor consents to (a) Cut+Dry’s use of Distributor’s name and logo (i) on the Cut+Dry website and publicly-available printed materials, identifying Distributor as a customer of Cut+Dry and describing Distributor’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 Distributor’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, Cut+Dry 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 Distributor notice via email or through the Services). Use of the Services after notice of any Agreement Change will confirm that Distributor has read, accepted, and agreed to be bound by the modifications to the Agreement or constitute Distributor’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 Distributor’s rights under this Agreement, then Distributor may terminate the Agreement and any Order by providing written notice thereof to Cut+Dry, provided such notice must be given within 30 days following the date of notice by Cut+Dry 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 Cut+Dry providing payments processing services (if Distributor subscribes to such services) Cut+Dry is not Distributor’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+ & Boost+ Service, the Track+ Service, and the Pay+ Service, services to which Distributor may upgrade at any time during the Initial Term or any renewal term.
A1. THE SHOP+ & BOOST+ SERVICE
A1.1. Shop+ & Boost+ Service Overview. The Shop+ & Boost+ Service is a premium feature for integrated foodservice distributor entities that provides an enhanced e-commerce product marketing, search and discovery experience for Distributor’s Customers through the following functionality:
The Fees for the Shop+ & Boost+ Service shall be as set forth in the applicable Order.
A1.2. Distributor Obligations for Shop+ & Boost+.
a. Distributor Materials. For the avoidance of doubt Distributor is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of Distributor Materials, including but not limited to Distributor Product descriptions, pricing, images and marketing collateral and other advertising materials related to the Products or the Distributor, and for obtaining all rights related to Distributor Materials required by Cut+Dry to perform the Shop+ & Boost+ Service.
b. Sales; Fulfillment; Customer Service. Distributor is the seller of record of Distributor Products. Distributor shall (a) offer, sell and fulfill Distributor 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 Distributor Products. Distributor remains fully responsible for its fulfillment of any Distributor Products purchased by Customers via the Shop+ & Boost+ Services, the invoicing and collection of amounts owed by Customers for purchases (unless Distributor subscribes to the Pay+ Services), and any returns, mistakes or other customer service issues arising from the Distributor Products (without derogating from Distributor’s obligations as further set forth in the Agreement). For example, the coordination and cost of return shipping for a Distributor Product (in connection with a Customer complaint to Distributor) is the Distributor’s responsibility. Distributor 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 Distributor products (made on through or in connection with the Services). For the avoidance of doubt, Distributor is solely responsible for all customer service issues relating to Distributor Products, including pricing, order fulfillment, order cancellation, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback concerning experiences with Distributor personnel, policies, or processes. In performing customer service, Distributor will always present itself as a separate entity from Cut+Dry.
c. Additional Restrictions. In addition to any restricted behavior set forth in the Agreement Distributor 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+ & Boost+ Service, Distributor grants Cut+Dry, its affiliates, and any third party service providers designated by Cut+Dry a non-exclusive, nontransferable, worldwide license to use Distributor’s trade names, trademarks, logos, service marks, and other identifying marks for the purposes of any promotion (such as marketing or advertising) of Distributor in connection with the Shop+ & Boost+ Service. That promotion may include advertisements and other marketing materials shared publicly or with targeted third parties such as prospective Distributor 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 Distributor’s physical or digital invoices (“Data Extraction”) and give Customers the ability to complete payment for Distributor Product purchases on the Platform via credit card or ACH (“Automated Orders”). Upon submission of an order for a Distributor 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 Cut+Dry facilitates the payments by Customers of one or more Digitized Invoices (via credit card or ACH) and payment is remitted to Distributor’s authorized financial institution. The Fees for the Pay+ Service shall be as set forth in the applicable Order.
A2.2. Payment Processing.
a. Appointment of Agent. For each Automated Order, Distributor authorizes Cut+Dry (via its relationship with banking partners) 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 Distributor’s behalf, remitting the Net Sales Proceeds (less any Fees or applicable Taxes) to Distributor’s bank account, and paying Cut+Dry amounts Distributor owes to Cut+Dry under this Agreement (the “Transaction Processing Services”). Distributor agrees that Customers satisfy their obligations to Distributor for the Customer Orders in full when Cut+Dry’s banking partner receives the Net Sales Proceeds. As such, the Distributor is obligated to the Customer on all funds accepted by Cut+Dry within the scope of its agency. Cut+Dry may establish a reserve on Distributor’s account based on Cut+Dry’s assessment of risks to it or third parties posed by Distributor actions or performance, and Cut+Dry may modify the amount of the reserve from time to time in its sole discretion. Sales Proceeds from Automated Orders will be credited to Distributor’s available balance when they are received by Cut+Dry.
b. Payout of Sales Proceeds. Subject to A2.2. clause (c) below, within approximately three banking days of receipt by Cut+Dry of Net Sales Proceeds arising from Customer Orders such Net Sales Proceeds will be delivered to the Distributor (via direct bank deposit or check or other method agreed to by the parties), less Cut+Dry’s Fees, and any taxes that Cut+Dry automatically calculates, collects and remits to a tax authority according to applicable law (the “Transaction Fee”). Distributor will accept and fulfill Automated Orders in the same manner as it accepts and fulfills any other orders.
c. Holds and Restricted Funds. To protect Cut+Dry from risk of liability for Distributor actions as a seller, Cut+Dry or its banking partners may create reserves or restrict access to funds in Distributor’s account based on certain factors, including, but not limited to, Distributor selling history, Distributor performance, returns, or transaction value.
d. Payout Account. Cut+Dry will, with its banking partners, arrange to settle funds to the bank or other financial institution account that Distributor designates (the “Payout Account”). Distributor affirms that it is authorized to initiate settlements to and debits from the Payout Account, and that the Payout Account is owned by Distributor and administered and managed by a financial institution located in the United States of America. If Distributor updates the Payout Account then you must ensure that you continue to comply with the requirements of this section.
e. Returns; Cancellations; Disputes. If a Distributor Product or an order for a Distributor Product is cancelled or reversed after payment is submitted to Distributor, then Distributor shall bear the full cost of any refund, payment reversal or credit that is due to the Customer, unless the refund, reversal or credit is due to the fault of Cut+Dry. To refund or credit the Customer or otherwise reverse a Customer Order, Distributor (as seller) authorizes Cut+Dry or its banking partners to debit the applicable refund, credit or reversal amount (in same or other currency) from Distributor’s account or otherwise charge Distributor provided, however, if Distributor elects to directly refund a Customer for any reason, such election shall not obligate Cut+Dry to provide a corresponding reimbursement to Distributor.
f. Authorizations. From time to time the Platform may offer features enabling Distributor to add Customer payment method(s) to the Platform, enable automatic payment of charges to a Customer’s account, or otherwise charge Customer Orders against a Customer account (“Customer Charges”). In connection with such Customer Charges Distributor represents and warrants that (i) any payment method information Distributor provides is accurate, (ii) Distributor has obtained the authorization of the Customer and any other third party individual, corporation or other entity and otherwise have all necessary rights, licenses, consents or permissions to effectuate the Customer Charge on the Platform, (iii) it has and will maintain the a copy of each authorization for such period of time as required by payment card or NACHA regulations and applicable law, (iv) it will provide Cut+Dry with copies of any such authorizations upon request, and (v) the Customer Charge against the Customer’s payment method(s) does not conflict with any agreement or law or regulation to which Distributor is bound. Distributor agrees to indemnify and hold Cut+Dry harmless for all chargebacks, reversals, and other losses, costs and expenses which Cut+Dry pays or incurs resulting from breach by you/your organization of the foregoing representations and warranties.
A2.3. Invoice Automation. Distributor Agrees that the invoice automation component of the Pay+ Service extracts data from the invoices provided to Cut+Dry from Distributor or collected by Cut+Dry and Distributor 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 Distributor’s needs and infrastructure and the fees arrangement, but may include:
The Fees for the Track+ Service shall be as set forth in the applicable Order.