Effective Date: October 1 st , 2018
By using the Sites, you represent and warrant to us that you are at least 18 years old (or at least 13 years old and your parent or guardian has agreed to the Agreement on your behalf) and have the legal capacity to contract, and your use of the Sites is and will comply with all applicable laws and regulations.
Please note that by using the Sites you (or, if applicable, your parent or guardian on your behalf) enter a legally binding contract with Cut+Dry based on the Terms (as updated from time to time). FURTHER THESE TERMS INCLUDE PROVISIONS (DESCRIBED IN MORE DETAIL BELOW) THAT LIMIT OUR LIABILITY AND REQUIRE INDIVIDUAL ARBITRATION FOR ANY POTENTIAL LEGAL DISPUTE.
The Sites and the content residing thereon are owned by Cut+Dry or its affiliates or business partners, or are used by us with express permission. Such content includes the text, software, scripts, graphics, photos, sounds, interactive features, visual interfaces, design, compilation, information, data, computer code (including source code or object code), products, services, and the trademarks, service marks, trade names, and logos (“Marks”) contained in the Sites (collectively, “Cut+Dry Content”). Unless otherwise noted, the Sites and Cut+Dry Content included on the Sites, including images, illustrations, designs, icons, photographs, video clips and written and other materials, are subject to copyright, trademark, and other intellectual property rights under United States law, the law of the jurisdiction where you reside, and international conventions protected by United States and international copyright laws. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to Cut+Dry or the Sites will, as between you and Cut+Dry, be and remain the sole and exclusive property of Cut+Dry. You may not display or reproduce the Marks in any manner without the prior written consent of Cut+Dry, and you may not remove or otherwise modify in any manner any trademark notices from any content offered or received through the Sites.
The rights you grant in the foregoing license are for the purposes of allowing Cut+Dry to operate and allow other users to use the Sites in accordance with their functionality, improve the Sites, and develop new Sites. Cut+Dry may retain User Submissions for backup, archival, audit or legal purposes to the extent permitted by law. Furthermore, Cut+Dry may retain and continue to use, store, display, reproduce, share, modify, create derivative works, perform, and distribute any of User Submissions that otherwise has been stored or shared through the Sites. Accordingly, note that the above license to your User Submissions continues even if you stop using the Sites.
Limited License and Access
The Sites are licensed, not sold, to you for use only under the terms of the Agreement. Subject to your compliance with the terms and conditions of the Agreement, Cut+Dry grants you a limited, revocable, non-transferable license to access and use the Sites and Cut+Dry Content for your own personal, noncommercial purposes provided that you do not (nor permit any third party in your control to):
Content You Submit to Cut+Dry
From time to time Cut+Dry may make available on the Sites bulletin boards, chat rooms, comment areas, billboards, forums, news groups, postings sections or similar communications facilities. These functions may enable you and others to submit content, such as reviews, images and postings (“User Content”). Submissions of User Content by visitors to certain parts of the Sites may be public and posted in public areas. User Content is intended to enhance the experience of the Sites, however, it should not be understood as to be endorsed by or necessarily represent the views of Cut+Dry. Cut+Dry disclaims any duty to review or modify User Content, and any responsibility for either the effects of harmful files, such as malware, that may be contained in that User Content, or for conduct by users or any third parties in connection with User Content submitted by them or you. Cut+Dry (without promising to do so) may decide it is in Cut+Dry’s best interests to block, remove, modify, or simply not post any User Content, including reviews or ratings, for any reason determined by Cut+Dry in its sole discretion at any time and may not notify you if it does so. If you decide to submit User Content, you promise you have the right to provide that User Content, which means: you are the creator and owner of the User Content, or the User Content is not protected by copyright law, or you have express permission from the copyright owner to use the User Content in connection with the Services; and you have the necessary licenses, rights, consents, and permissions to authorize Cut+Dry and users of the Sites to use and distribute your User Content as necessary to exercise the licenses granted by you in these Terms.
You: (a) agree that any User Content you provide in may be read, collected, and used by others who access the User Content, (b) agree to indemnify Cut+Dry and its indirect or direct subsidiary, parent, or affiliate companies or any of their employees, officers, directors, licensors, and agents (collectively, with Cut+Dry, the “Cut+Dry Entities”) from all claims relating to your User Content, and (c) to the fullest extent permitted by applicable law, irrevocably waive, and cause to be waived, any claims and assertions of moral rights or attribution regarding your User Content brought against the Cut+Dry Entities and our and their users to the extent relating to use of the User Content for the Sites or as otherwise expressly permitted under the Agreement. If you feel that User Content should be removed, please let us know, and Cut+Dry has the right, but not the obligation, to review such User Content, and ultimately it will be Cut+Dry’s decision (subject to any countervailing laws) on whether to take any action related to your request.
Digital Millennium Copyright Act
Cut+Dry expects all users to respect the intellectual property rights of others. Cut+Dry may remove material that appears in its sole discretion to infringe upon the intellectual property rights of others and we will terminate the access rights of any repeat infringer.
If you believe an issue copyright infringement should be brought to our attention, please provide us with the following information:
-identification of the work or material being infringed;
-a description of the material that you claim is infringing, including its location, with sufficient detail so that we are capable of finding it and verifying its existence;
-your name, address, telephone number, and email address;
-a statement that you have a good faith belief that the use of those materials on the Sites is not authorized by the copyright owner, its agent, or the law; and
-a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Your notice must be signed (electronically or physically) and addressed as follows:
Ordering Supplies Inc.
ATTN: Copyright Agent
228 Hamilton Ave., 3rd Floor
Palo Alto, CA 94301
We have implemented technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You provide your personal information at your own risk.
Dealings with Third Parties
The Sites may contain links to third party websites, enable you to log in to the Sites via various online third-party services, or display advertisements and promotional material of goods and services offered by third parties (“Third Party Services”). By linking or otherwise displaying information from or providing access to any Third Party Services, Cut+Dry gives no representation, warranty, or endorsement, express or implied, regarding the legality, accuracy, quality, or authenticity of content, information, products or services provided by those Third Party Services. Further, the way Third Party Services (including social networking services) use, store, and disclose your information is governed solely by the policies of those Third Party Services, and we have no liability or responsibility for the privacy practices or other actions of any third-party website or service that may be enabled within the Sites. Conduct any diligence you feel necessary before engaging online or offline with any of these third parties. Cut+Dry disclaims all responsibility or liability for any harm resulting from your use of Third Party Services, including harm relating to payment, delivery or performance of related goods or services, and you irrevocably waive any claim against Cut+Dry regarding the content, products or operation of any Third Party Services.
THE SITES AND ALL CONTENT CONTAINED ON THE SITES, INCLUDING TEXT, GRAPHICS, AND LINKS, ARE PROVIDED ON AN “AS IS” BASIS WITHOUT REPRESENTATION OR WARRANTY. TO THE FULLEST EXTENT PERMITTED BY LAW, CUT+DRY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, CUT+DRY DOES NOT REPRESENT OR WARRANT THAT THE SITES OR CONTENT ACCESSIBLE VIA THE SITES IS ACCURATE, TIMELY, COMPLETE, OR CURRENT, AND YOU MAY NOT RELY ON THE SITES OR CONTENT.
In addition, User Content, including advice, statements, or other information is not produced by Cut+Dry, and should not be relied on without independent verification. User Content, whether publicly posted or privately transmitted, is the sole responsibility of the user from whom such User Content originated.
To the fullest extent permitted by applicable law, we do not warrant that (i) the Sites will meet your requirements, (ii) the operation of the Sites will be uninterrupted, virus- or error-free or free from other harmful elements or (iii) errors will be corrected. No advice or information, whether oral or written, obtained from other users or through the Sites, will create any warranty not expressly made herein. You therefore expressly acknowledge and agree that use of the Sites is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND CONDITIONS IN SOME CASES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE CUT+DRY ENTITIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (B) LOSS OF PROFITS, REVENUE, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES; (C) DAMAGES RELATING TO YOUR ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SITES; (D) DAMAGES RELATING TO ANY CONDUCT OR CONTENT OF ANY THIRD PARTY OR USER USING THE SITES, INCLUDING WITHOUT LIMITATION, DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OR CONTENT; (E) DAMAGES IN ANY MANNER RELATING TO ANY THIRD PARTY SERVICES ACCESSED VIA THE SITES; AND/OR (F) DAMAGES RELATING TO ANY UNAUTHORIZED ACCESS TO OR USE OF CUT+DRY’S SYSTEMS OR ANY AND ALL PERSONAL INFORMATION OR FINANCIAL INFORMATION (IF APPLICABLE) STORED ON THOSE SYSTEMS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THIS LIMITATION APPLIES TO ALL CLAIMS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT CUT+DRY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND FURTHER WHERE A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. EXCEPT AS PROVIDED IN THE ARBITRATION SECTION OF THESE TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF THE CUT+DRY ENTITIES, FOR ANY CLAIM UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO TWENTY FIVE DOLLARS (US $25.00).
If you are a resident of California: You waive your rights with respect to California Civil Code Section 1542, which says “a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, YOU ALSO WAIVE ANY PROTECTION THAT MAY EXIST UNDER ANY COMPARABLE OR SIMILAR STATUTES OR PRINCIPLES OF COMMON LAW APPLICABLE IN JURISDICTIONS OTHER THAN CALIFORNIA.
Notwithstanding any of these Terms, we reserve the right, without notice or attendant liability, and in our sole discretion, to terminate or suspend your right to use these Sites, and to block or prevent future your access to and use of the Sites for any reason or no reason.
These Terms and the relationship between you and Cut+Dry shall be governed by the laws of the State of California as if you signed these Terms in California. The provisions of these Terms that conflict with or are inconsistent with applicable governing law will be superseded and/or modified by such applicable law only to the extent such provisions are inconsistent.
Consent to Arbitrate and Class Action Waiver
To the fullest extent permitted by applicable law, you and Cut+Dry agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Except where prohibited, you and we agree to submit to the personal and exclusive arbitration of disputes relating to your general use of the Sites under the rules of the American Arbitration Association (“AAA”). Please visit www.adr.org for more information about arbitration.
Nothing in the Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the federal, state, provincial or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified mail, or by Federal Express (signature required) or, only if the other party has not provided a current physical address, then by electronic mail (“Notice”). The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Cut+Dry may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Cut+Dry must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
Any arbitration hearing will take place at a location to be agreed upon in San Mateo County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards in Federal Rule of Civil Procedure), then the payment of all fees will be governed by the AAA rules. In that case, you will reimburse Cut+Dry for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA rules. Regardless of how the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
You also acknowledge and understand that, with respect to any dispute between you and Cut+Dry, suppliers or licensors (or their respective affiliates, agents, directors or employees), including any claims relating in any way to these Terms or the Sites, or any other aspect of our relationship: (a) You are giving up your right to have a trial by jury; (b) You are giving up your right to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit involving any such dispute; and (c) any action or proceeding by you relating to such dispute must commence within one year after the cause of action accrues or it is forever barred.
If Cut+Dry changes this arbitration provision, you may reject the change by sending Cut+Dry written notice within 30 days of the change, in which case your right to use the Sites may be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. If all or any part of this arbitration section is found to be unenforceable, then the remaining provisions of these Terms will remain in effect under the “Severability” clause below, and the exclusive jurisdiction and venue described above will govern any action arising out of or related to the Agreement.
This agreement to arbitrate will not preclude you or Cut+Dry from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or Cut+Dry from (i) applying to the appropriate court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, or (ii) seeking relief in any state or federal court for disputes related to a violation or possible violation of Cut+Dry's intellectual property rights.
If this arbitration provision is found to be null and void, then all disputes arising under the Terms between us will be subject to the jurisdiction of the state and federal courts located in New York, New York, and you and we hereby submit to the personal jurisdiction and venue of these courts. In the event of any litigation or arbitration arising from or related to the Agreement, or the Sites provided, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred including staff time, court costs, attorneys' fees, and all other related expenses incurred in such litigation or arbitration.
Modifications and Service Monitoring
Cut+Dry may amend the Terms at any time with notice that we deem to be reasonable under the circumstances (each a “Revised Version”) by (i) posting revised Terms via the Sites, and/or (ii) notifying you of material changes, generally via email where practicable, and otherwise through the Sites. The Revised Version will be effective as of the time it is communicated, but will not apply retroactively. Your continued use of the Sites after the posting of a Revised Version constitutes your acceptance of such Revised Version. Any dispute between the parties that arose before the effective date of a Revised Version is governed by the Terms (including the binding individual arbitration clause) that was in place when the dispute arose.
Our Sites change from time to time and their form and functionality may change as we launch new products or features or make upgrades, patches or error corrections (“Updates”). We reserve the right to modify, suspend, discontinue or limit your access to or use of any part of the Sites (including by limiting or discontinuing certain features of the Services), temporarily or permanently, without notice to you. The Agreement will apply to any and all Updates to the Sites. We will have no liability because of any Update to the Sites or any suspension or termination of your access to or use of the Sites.
Cut+Dry will not be liable or responsible to you, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and if failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Cut+Dry including acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes, or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Severability and Waiver
If any of these Terms shall be deemed invalid, void, or for any reason unenforceable, that term shall be deemed severable and shall not affect the validity and enforceability of any remaining term or condition. No waiver by any party of any of the Agreement will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof, nor will any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise thereof or exercising any other right, remedy, power, or privilege. NOTHING IN THE AGREEMENT WILL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
Cut+Dry may provide disclosures and notices regarding the Sites by posting it to one of the Sites or other electronic means. Those electronic disclosures and notices will have the same meaning and effect as if you were provided with physical copies. Those disclosures and notices are considered received by you within 48 hours of the time posted or emailed to you unless Cut+Dry receives notice of non-delivery. Review the applicable Sites regularly to review the prevailing disclosures and notices and check for updates. You consent to accept and receive communications from us, including e-mail, text messages, calls, and push notifications to any cellular telephone number you provide to us. Standard message and data rates applied by your cell phone carrier may apply to the text messages we send you.
These Terms constitute the entire agreement between the user and Cut+Dry with respect to the Sites and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written with respect to the Sites. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Any rights not expressly granted herein are reserved. You may not transfer or assign your obligations under the Agreement without Cut+Dry’s prior written consent. Cut+Dry may transfer or assign any or all part of its rights under the Agreement without restriction and has the right to delegate or use third-party contractors to fulfill our duties and obligations under these Terms and in connection with the Sites.
Effective Date: October 1 st , 2018
This Subscriber Agreement (the “Agreement”) is between Ordering Supplies Inc. d/b/a Cut+Dry (“Cut+Dry”) and the Subscriber named on any Order Form (defined below) that incorporates or is incorporated into this Agreement or any other person or entity whose use of the Subscription Services is not governed by a superseding agreement (“Subscriber”, “you”). By clicking the box indicating acceptance, signing an Order Form, by making payment in accordance with an Order Form, or by using the Subscription Services, Subscriber agrees that such Order Form and its use of the Subscription Services shall be governed exclusively by this Agreement and any additional terms stated in such Order Form. If you are entering into this Agreement on behalf of a Subscriber that is a company or other legal entity, you warrant and represent that you have the authority to bind such entity and such entity’s affiliates to this Agreement.
1. DEFINITIONS. As used in this Agreement:
“Applicable Laws” means all legislation, statutes, regulations, ordinances, rules, judgments, orders, decrees, rulings, and other requirements enacted, promulgated, or imposed by any governmental authority or judicial or regulatory body (including any self-regulatory body) at any level (e.g., municipal, county, provincial, state or national) that are applicable to or enforceable against a party or its personnel in relation to their activities under or pursuant to this Agreement.
“Authorized User(s)” means end users of Subscriber who have completed Cut+Dry’s online registration process or who otherwise receive a user ID or other access credentials from Cut+Dry or Subscriber authorizing them to access and use the Subscription Services. The Service is available only to legal entities and persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law.
“Authorized Purpose(s)” means those purposes set forth in an Order Form or on Cut+Dry’s Web Sites describing the purposes for which the applicable Subscription Services and associated Content are permitted to be used by Subscriber and their Authorized Users. If no Authorized Purpose is stated, the Authorized Purpose shall be limited to use of the Subscription Services in Subscriber’s internal business operations.
“Content” means any data, media, information and/or other type or form of content displayed, distributed or otherwise made available to a Party through or in connection with the Subscription Services or other Services, including User Content and Cut+Dry Content.
“ Cut+Dry Content ” means Content owned, originated or controlled by Cut+Dry that is made accessible to Subscriber via the Subscription Services or other Services.
“Cut+Dry’s Web Sites” means cutanddry.com and/or the web interface of the Subscription Services platform that Cut+Dry offers for interaction with and receipt of the Services.
“Data Privacy and Security Laws” means all applicable federal, state, regional, territorial and local laws, statutes, ordinances, regulations, rules, executive orders, of or by any United States federal or state government entity, or any authority, department or agency thereof governing the privacy, data protection and security of personally identifiable information and security breach notification relating to Personal Information, and any other laws in force in any jurisdiction (regulatory or otherwise) in which the Subscription Services is being utilized, including Title V of the Gramm-Leach-Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1338), as may be amended from time to time, and its implementing regulations, and the “Interagency Guidelines Establishing Standards for Safeguarding Subscriber Information” (Exhibit B to 12 CFR Part 364).
“Including” (and its derivative forms, whether or not capitalized) means including without limitation.
“ Intellectual Property Rights ” means the legal rights held by the owner of a copyright, patent, trademark, or trade secret, including (i) the rights to copy, publicly perform, publicly display, distribute, adapt, translate, modify and create derivative works of copyrighted subject matter; (ii) the rights to exclude others from using, making, having made, selling, offering to sell, and importing patented subject matter and to practice patented methods, (iii) the rights to use and display any marks in association with businesses, products or services as an indication of ownership, origin, affiliation, or sponsorship; and (iv) the rights to apply for any of the foregoing rights, and all rights in those applications. Intellectual Property Rights also include any and all rights associated with particular information that are granted by law and that give the owner, independent of contract, exclusive authority to control use or disclosure of the information, including privacy rights and any rights in databases recognized by applicable law.
“Order Form” means an order form issued by Cut+Dry and executed by Subscriber and Cut+Dry setting forth the necessary information relating to the Subscription Services and/or other Services to be provided to Subscriber under this Agreement and the fees payable to Cut+Dry.
“Parties” means Cut+Dry and Subscriber.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Personal Information” is: (i) information that directly identifies you as an individual, like your name or your email address, or (ii) a combination of pieces of information that do not identify you on their own, but could identify you when combined using reasonable effort.
“Professional Services” means any professional services performed or contracted to be performed by Cut+Dry pursuant to a Statement of Work entered into by the Parties under this Agreement.
“Subscription Service” means Cut+Dry’s proprietary software-as-a-service platform and related services made available for use by Authorized Users under this Agreement, as identified on the applicable Order Form, including its technology components, such as Cut+Dry’s Web Sites, applicable mobile applications, and related documentation.
“Services” means, collectively, the Subscription Services, the Support Services, and any Professional Services performed or provided by Cut+Dry pursuant to this Agreement.
“Statement of Work” (or “ SOW”) means a supplementary document in a mutually agreed form that is entered into by the Parties under this Agreement and describes Professional Services ordered by Subscriber from Cut+Dry. Upon execution and delivery of an SOW, it is deemed to form part of this Agreement.
“Subscriber Data” means any business, financial, and other data that is owned or licensed from a third party by Subscriber and collected or generated in connection with the Subscription Services, including but not limited to any and all transaction, product and processing data submitted to or collected by Cut+Dry in connection with the Subscription Services.
“Subscription Fees” means the non-recurring and recurring fees payable by Subscriber to Cut+Dry for the Subscription Services and associated Support Services, as set forth in the relevant Order Form, which shall be payable in accordance with the payment terms set forth in the Order Form (or as set forth herein if not described in an Order Form). Unless and except as otherwise expressly stated in this Agreement, the Subscription Fees are non-cancellable and non-refundable.
“Subscription Term” means the period during which Subscriber’s Authorized Users are permitted to access and use the Subscription Services, as set forth in the applicable Order Form.
“Support Services” has the meaning given in Section 3.
“Update” means any improvement, enhancement, modification and/or changes to the Subscription Services offered or provided by Cut+Dry to its subscribers at no charge.
“User Content” means any Content submitted, posted or displayed by Authorized Users of the Subscription Services for public display.
2. ACCESS TO AND USE OF THE SUBSCRIPTION SERVICES.
2.1. Limited-Purpose Access Grant. Subject to Subscriber’s and its Authorized Users’ continuing compliance with the terms of this Agreement and payment of the applicable fees, Cut+Dry hereby grants to Subscriber a limited, personal, non-exclusive, non-transferable right for Authorized Users of Subscriber to access the features and functions of the Subscription Services and use Cut+Dry Content during the Subscription Term, solely in connection with its internal business operations and solely for the Authorized Purpose(s). This access grant may not be sublicensed, in whole or in part. The scope of Subscriber’s use of the Subscription Services and Cut+Dry Content is subject to the terms and conditions of this Agreement, including any usage or other parameters or limitations set forth in the applicable Order Form.
You agree that you are not (a) a citizen or resident of a country in which use or participation is prohibited by law, decree, regulation, treaty or administrative act; (b) a citizen or resident of, or located in, a country or region that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual or an individual employed by or associated with an entity identified on the U.S. Department of Commerce's Denied Persons or Entity List, the U.S. Department of Treasury's Specially Designated Nationals or Blocked Persons Lists, or the Department of State's Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations, or other economic sanction rules of any sovereign nation.
2.3 Location. A “Location” means a discrete profit center at a physical location at which Subscriber has operations. During the Subscription Term, Subscriber shall (a) use the Subscription Service at the maximum number of Locations specified in the applicable Order Form; and (b) restrict the ability to log into the Subscription Service to Authorized Users. Subscriber’s and Subscriber’s Authorized Users use of the Subscription Service shall be subject to and governed exclusively by this Agreement even if such use has not been licensed in an Order Form.
2.4. User Content. The Subscription Services may give Subscriber’s Authorized Users a platform to post, search for, store, and manage User Content. Subscriber acknowledges that Cut+Dry does not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, reliability or other attributes of any User Content, nor does Cut+Dry review or attempt to verify the accuracy or currency of any User Content. As between Subscriber and Cut+Dry, Subscriber is solely responsible for (i) determining the suitability of any User Content for its intended use by Subscriber and its affiliates, and (ii) as necessary for its intended use, verifying the authenticity, integrity, and accuracy of the User Content prior to using it. Cut+Dry has no obligation to preview, verify, flag, modify, filter or remove any User Content. Subscriber may remove any User Content at any time in its sole discretion. In the event Cut+Dry reasonably believes any User Content to be harmful, inaccurate, unlawful, or otherwise objectionable, it will promptly notify Subscriber in writing and Subscriber will remove or replace the objected-to User Content. If Subscriber fails to replace or remove objected-to content within ten (10) days following receipt of written notice by Cut+Dry, Cut+Dry may remove or disable access to the objected-to content in its sole discretion, but is not responsible for any failures or delays in removing or disabling access to any User Content unless otherwise provided herein, including User Content that may be considered harmful, inaccurate, unlawful or otherwise objectionable.
2.6. Restrictions. Subscriber agrees not to act outside the scope of the rights that are expressly granted by Cut+Dry in this Agreement. Further, Subscriber will not (i) use the Services in any manner that is inconsistent with this Agreement; (ii) access or use the Subscription Services or in order to develop or support, or assist another party in developing or supporting, any products or services competitive with the Subscription Services; (iii) decompile, reverse engineer (unless required by law for interoperability), or use any other method in an attempt to view or recreate any of the source code of the Subscription Services or extract any trade secrets from it; (iv) use the Subscription Services to operate the business of a third party or to process data or content provided by a third party for the operation of a third party’s business, or otherwise use the Subscription Services on a third party’s behalf, or to act as a service bureau or provider of application services to any third party; (v) knowingly or intentionally re-use, disseminate, copy, or otherwise use the Subscription Services or associated Content in a way that infringes, misappropriates, or violates any trademark, copyright, patent, trade secret, publicity, privacy or other right of Cut+Dry or any third party; (vi) sell, lend, lease, assign, transfer, pledge, permit a lien upon, or sublicense any of the rights granted by this Agreement with respect to the Subscription Services; (vii) use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Subscription Services; or (viii) post or transmit any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features, or that otherwise may interfere with the proper working of Cut+Dry’s systems, including the Subscription Services.
2.7. No Interference with Service Operations. Subscriber and its Authorized Users will not take any action designed or intended to: (a) interfere with the proper working of the Subscription Services; (b) circumvent, disable, or interfere with security-related features of the Subscription Services or features that prevent or restrict use, access to, or copying the Subscription Services or any Content or other data, or that enforce limitations on use of the Subscription Services or Content; or (c) impose (or which may impose, in Cut+Dry’s sole discretion) an unreasonable or disproportionately large load on the Subscription Services infrastructure.
3. PROVISION OF THE SERVICES.
3.1. Service Availability . During the term of the Subscription Service, Cut+Dry will use commercially reasonable efforts to operate the Subscription Service and notify Subscriber in advance of planned Subscription Service interruptions.
3.2. Data Security and Data Storage. Without limiting the disclaimers in this Agreement, Cut+Dry will use commercially reasonable efforts to comply with applicable privacy laws regarding the security of personal information obtained from Subscriber. Cut+Dry does not represent, warrant, or guarantee that unauthorized third parties will be unable to defeat Cut+Dry’s security measures or use Subscriber’s personal information for improper purposes. Subscriber acknowledges that Subscriber provides personal information to Cut+Dry at Subscriber’s own risk. Subscriber shall ensure that no Authorized User usernames and passwords are shared and is solely responsible for maintaining the confidentiality of all User usernames and passwords and for all activities that occur under such usernames. Subscriber will immediately notify Cut+Dry of any suspected security breach or unauthorized access at email@example.com.
Subscriber is solely responsible for the accuracy, quality, content and legality (including compliance with all Applicable Laws) of Subscriber Data, the means by which Subscriber Data is acquired, and any transfer of Subscriber Data outside of the Services by Subscriber or any third-party authorized by Subscriber. Subscriber is responsible for ensuring its systems are fully protected against unauthorized breaches and maintaining backups of Subscriber Data at all times. While Cut+Dry may archive certain Subscriber Data while the Subscriber’s accounts are active and not in default, if there is any loss of Subscriber Data, Subscriber’s exclusive remedy is for Cut+Dry to use commercially reasonable efforts to attempt to replace or restore the lost data from the latest backup (if any) of the Subscriber Data that Cut+Dry has maintained in accordance with its ordinary storage procedures. Without limiting any of the foregoing, Subscriber is solely responsible for archiving Subscriber Data for use after the close of an account.
3.3. Technical Support. Cut+Dry will provide Subscriber with then-current standard technical support services with respect to the Subscription Service, so long as Subscriber is current in all payments due to Cut+Dry under the Agreement. Cut+Dry may use all technical information provided by Subscriber in connection with Support Services for Cut+Dry’s business purposes, including, without limitation, for product support and development.
3.4. Updates. Subscriber will be given access to Updates of the Subscription Services that Cut+Dry implements during the Subscription Term. Subscriber acknowledges, however, that Cut+Dry may in the future offer optional value-added functions, features, or other capabilities for a separate fee.
3.5. Scheduled Maintenance. Cut+Dry reserves the right to take down applicable servers hosting the Subscription Services to conduct scheduled and emergency maintenance. Cut+Dry will use commercially reasonable efforts to perform scheduled maintenance outside regular business hours and provide advance notice for non-emergency maintenance. Cut+Dry will not be responsible for any damages or costs incurred by Subscriber due to unavailability of the Subscription Services during scheduled or emergency maintenance.
3.6. Professional Services. If Cut+Dry has agreed to perform Professional Services for Subscriber under this Agreement, the Parties shall prepare and sign a Statement of Work describing the Professional Services to be performed and setting forth any other pertinent details, including the locations at which the Professional Services will be performed, the planned schedule of performance, the deliverables (if any) to be produced by Cut+Dry and delivered to Subscriber, the amount and manner of payment of Cut+Dry’s fees for the Professional Services, and any associated responsibilities of Subscriber relating to the Professional Services. Subscriber’s obligation to pay the Subscription Fees set forth in an Order Form is not dependent on Cut+Dry’s performance of any Professional Services pursuant to an SOW unless otherwise agreed by the Parties.
3.7. Third Party Offers. Some parts of the Subscription Service may be supported by sponsored links from advertisers and display offers (“Third Party Offers”) that may be custom matched to you based on information stored in the Subscription Service or queries made through the Subscription Service or other information. In connection with Cut+Dry, the Subscription Service will provide links or send emails to other web sites belonging to advertisers and other third parties. Cut+Dry does not endorse, warrant, guarantee, or make any representation regarding the products or services available through the Third Party Offers (or any other third party products or services advertised on or linked from our site), whether or not sponsored. In addition, Cut+Dry is not an agent or broker or otherwise responsible for the activities or policies of those web sites. Cut+Dry does not guarantee that the terms of sale or offer posted on the Subscription Service by or for any particular advertiser or other third party are actually the terms that may be offered to you if you pursue the offer or that they are the best terms or price available in the market.
4.1 Subscription Fees . Fees for the Subscription Services commence as set forth in an Order Form or if not so described therein then upon the date access to the Subscription Service is made available or 30 days after the Effective date of the applicable Order Form, whichever is earlier (the “Subscription Commencement Date”). Subscription Fees shall be charged for all Locations beginning on the Subscription Commencement Date for such Locations and shall be paid on a calendar monthly basis in advance continuing through the end of the Subscription Term, unless otherwise stated in an Order Form. Cut+Dry may modify the Subscription Fees at any time after the Subscription Term.
4.2 Location and Tiered Pricing . For such Subscription Services, if Subscriber increases the number of Locations accessing the Subscription Service in excess of the number of Locations licensed in an Order Form, or if the average number of Users at a Location changes such that a different pricing tier applies to the Location than what is licensed in the applicable Order Form, Subscriber shall be responsible for additional Subscription Fees and any applicable Activation Fees (defined below), as applicable, beginning from the date such changes occurred. In such event, Cut+Dry shall deliver a subsequent Order Form and invoice reflecting the changes at the then current price. Any changes in Subscription Fees due to tiered pricing will not qualify Subscriber to any reduction in or rebates for Subscription Fees for Subscription Services already accrued or delivered.
4.3 Other Fees . Subscriber shall pay all fees for the activation or re-activation of the Subscription Service (“Activation Fees”), fees for Professional Services (“Professional Services Fees”), and all other fees and charges set forth in the applicable Order Form or Statement of Work. All such fees are due in accordance with the Order Form or Statement of Work, or, if payment terms are not set forth therein, in full within fifteen (15) days after the date reflected on the applicable invoice. Once Cut+Dry enables access to the Subscription Service, any applicable Activation Fees are non-refundable. In the event Subscriber terminates access or disengages with implementation after access has been provided and subsequently requests to participate in training or to re-enable access for the Subscription Service, Subscriber may be obligated to pay additional Activation Fees.
4.4 Payment Terms . Unless otherwise stated in an Order Form, the standard payment method is via Automated Clearinghouse (“ACH”) payments, and all Subscription Fees are due monthly in advance, or as otherwise stated in an Order Form. Charges on any invoice for Professional Fees will be deemed accepted by Subscriber unless Subscriber notifies Cut+Dry in writing of a dispute within seven (7) days of the date of the invoice. For any late payments, Cut+Dry reserves the right to impose finance charges equal to the lesser of (a) 1.5% of the unpaid balance per month, or the highest rate permitted by applicable law, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including reasonable attorneys' fees) incurred by Cut+Dry to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against other amounts due to Subscriber for any reason. If Subscriber fails to timely pay any amounts due under this Agreement, Cut+Dry may, without limitation to any of its other rights or remedies, report delinquent amounts due to credit reporting agencies, suspend performance of the Subscription Service, Professional Services and support services, and/or terminate the applicable Order Form governed by this Agreement and all corresponding Order Forms as a whole.
4.5 Payment Authorizations . Subscriber hereby authorizes Cut+Dry to initiate debit entries to Subscriber’s account specified in the Order Form, through ACH transfers, or other payment method as stated in an Order Form, in order to satisfy all payment requirements hereunder, and will provide Cut+Dry at least thirty (30) days’ notice of any change in Subscriber’s account.
4.6 Taxes . The fees stated on the Order Form do not include local, state, federal or foreign taxes (e.g., value- added, sales or use taxes), fees, duties, or other governmental charges resulting from this Agreement (collectively, “Taxes”). Subscriber is responsible for paying all applicable Taxes, excluding Taxes based on Cut+Dry’ net income or property. If Cut+Dry determines it has the legal obligation to pay or collect Taxes, Cut+Dry will add such Taxes to the applicable invoice and Subscriber will pay such Taxes, unless Subscriber provides Cut+Dry with a valid tax exemption certificate from the appropriate taxing authority. Subscriber is wholly responsible for self-assessing, reporting, and remitting applicable taxes to the appropriate taxing authorities in the event that Cut+Dry does not add such taxes to its applicable invoices. If a taxing authority subsequently inquires or pursues Cut+Dry for unpaid Taxes for which Subscriber is responsible under this Agreement and which were not paid by Subscriber to Cut+Dry, Subscriber agrees to cooperate with Cut+Dry in good faith during such inquiry or pursuit, and Cut+Dry may invoice Subscriber and Subscriber will pay such Taxes to Cut+Dry or directly to the taxing authority, plus all applicable interest, penalties and fees.
5. Representations and Warranties and Disclaimers.
5.1. Representations and Warranties. Subscriber represents (i) that the execution and performance of its obligations under this Agreement will not conflict with or violate any provision of Applicable Law or any other agreement or order by which it is bound; (ii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of Subscriber and will be enforceable against it in accordance with its terms and (iii) that Subscriber has all necessary rights, consents and permissions to provide User Content or Subscriber Data as contemplated by this Agreement, without material violation or infringement of any third party intellectual property, publicity, privacy or other rights or any Applicable Laws. Cut+Dry warrants that any Professional Service performed by Cut+Dry under this Agreement will be performed in a good and workmanlike manner in accordance with prevailing industry standards.
5.2. DISCLAIMERS. (a) SUBSCRIBER REPRESENTS THAT IT IS ENTERING THIS AGREEMENT WITHOUT RELYING UPON ANY CUT+DRY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUT+DRY DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, SYSTEM INTEGRATION, SYSTEM RELIABILITY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND/OR QUIET ENJOYMENT, AND ALL WARRANTIES THAT MAY OTHERWISE BE IMPLIED. NO WARRANTIES ARE MADE ON THE BASIS OF TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. THE SUBSCRIPTION SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CUT+DRY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
(b) SUBSCRIBER ASSUMES COMPLETE RESPONSIBILITY, WITHOUT ANY RECOURSE AGAINST CUT+DRY, FOR THE SELECTION OF THE SUBSCRIPTION SERVICES TO ACHIEVE SUBSCRIBER’S INTENDED RESULTS AND FOR ITS USE OF THE RESULTS OBTAINED FROM THE SUBSCRIPTION SERVICES IN SUBSCRIBER’S BUSINESS. SUBSCRIBER ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED FROM USE OF THE SUBSCRIPTION SERVICES, INCLUDING THE COMPLETENESS, ACCURACY, AND CONTENT OF SUCH RESULTS. CUT+DRY DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS, THAT THE OPERATION OF THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
IF SUBSCRIBER IS A CALIFORNIA RESIDENT, SUBSCRIBER WAIVES CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND SUBSCRIBER MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
6. Indemnities and Limitation of Liability.
6.1. Indemnification of Subscriber by Cut+Dry. Cut+Dry will, at its expense, defend Subscriber from or settle any claim, proceeding, or suit brought by a third party (“Claim”) against Subscriber alleging that the Subscription Service infringes or misappropriates any intellectual property right of such third party, and will indemnify Subscriber from all damages, costs, and reasonable attorneys’ fees finally awarded against Subscriber as a result of such Claim; provided, however, that (a) Subscriber gives Cut+Dry prompt written notice of the Claim; (b) Subscriber grants Cut+Dry full and complete control over the defense and settlement of the Claim; (c) Subscriber provides reasonable assistance at Cut+Dry’s request in connection with the defense and settlement of the Claim; and (d) Subscriber complies with any settlement or court order made in connection with the Claim. Cut+Dry will have no obligation under this Section 6.1 for any Claim to the extent arising out of or is based upon (i) use of the Subscription Service in combination with other products or services if such Claim would not have arisen but for such combination; (ii) compliance with requirements or specifications required by or provided by or on behalf of Subscriber, if such Claim would not have arisen but for such compliance; (iii) use of the Subscription Service for purposes not intended or other than in accordance with the Agreement; (iv) use of the Subscription Service inconsistent with instructions or documentation provided by Cut+Dry; or (v) any modification of the Subscription Service. This Section 6.1 states Cut+Dry’s sole and exclusive liability, and Subscriber's sole and exclusive remedy, for any actual or alleged infringement or misappropriation of any third party intellectual property right by the Subscription Service.
6.2. Indemnification of Cut+Dry by Subscriber. Subscriber agrees to defend, indemnify and hold harmless Cut+Dry and its direct and indirect affiliates (including parent and subsidiary companies) or any of their employees, officers, directors, licensors, and agents (collectively, the “Cut+Dry Entities”) from and against all Claims, that may, at any time, arise out of or relate to: (a) use of the Subscription Services or any Content by or on behalf of Subscriber other than in accordance with this Agreement; (b) the Subscriber Data, or other similar materials or information provided by Subscriber or its agents, (c) any violation of Applicable Law by Subscriber, its subcontractors or its agents (including the employees of any of the foregoing), and (d) the posting, display, distribution, broadcast or other use of User Content by or on behalf of Subscriber, including Claims that any such use infringes or otherwise violates the rights of any third party, including Intellectual property rights, privacy, publicity or other personal or proprietary rights, or that the User Content posted, displayed, distributed, broadcast or otherwise published contains libelous, defamatory or otherwise injurious or unlawful material; and, in each case, associated losses.
6.3. Indemnification Procedures. If any third party makes a Claim covered by Section 6.1 or Section 6.2 against an indemnified Party (the “Covered Party”) with respect to which the Covered Party intends to seek indemnification under this Agreement, the Covered Party shall give prompt written notice of the Claim to the indemnifying Party, including a brief description of the amount and basis for the claim, if known. Upon receiving such notice, the indemnifying Party shall be obligated to defend the Covered Party (and its indemnitees) against the Claim, and shall be entitled to assume control of the defense and settlement of the Claim. The Covered Party may participate in the defense and settlement of the Claim at its own expense, using its own counsel, but without any right of control. The indemnifying Party shall keep the Covered Party reasonably apprised as to the status of the Claim. Neither the indemnifying party nor any Covered Party shall be liable for any settlement of a Claim made without its consent. Notwithstanding the foregoing, the Covered Party shall retain responsibility for all aspects of the Claim that are not subject to indemnification by the indemnifying Party hereunder.
6.4. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, THE CUT+DRY ENTITIES WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER OR AUTHORIZED USERS FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF CUT+DRY IS APPRISED OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
EXCEPT IN CONNECTION WITH THE INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE OF THE CUT+DRY ENTITIES UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF THE CUT+DRY ENTITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL SUBSCRIPTION FEES PAID BY SUBSCRIBER UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THIS LIMIT.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THE AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY CUT+DRY TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
6.5. Third Party Disputes . ANY DISPUTE SUBSCRIBER HAS WITH ANY THIRD PARTY SUPPLIER, THIRD PARTY SERVICE, OR OTHER THIRD PARTY, INCLUDING IN CONNECTION WITH ANY THIRD PARTY OFFER, IS DIRECTLY BETWEEN SUBSCRIBER AND THAT THIRD PARTY, AND SUBSCRIBER IRREVOCABLY RELEASES THE CUT+DRY ENTITIES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THOSE DISPUTES.
7. DURATION AND TERMINATION.
7.1. Duration of Agreement. This Agreement shall govern all Subscription Services provided by Cut+Dry to Subscriber beginning upon the effective date of the applicable Order Form. Subscription Services provided under this Agreement shall be provided for the initial period of time defined in the Order Form (“Initial Term”), unless earlier suspended or terminated in accordance with the Agreement or the Order Form and shall automatically renew for successive one (1) year terms unless a different renewal term is specified on the Order Form (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless either party provides written notice of its intent not to renew no later than thirty (30) days prior to the expiration of the Initial Term or current Renewal Term.
7.2. Termination. Either Subscriber or Cut+Dry may terminate this Agreement, and all Order Forms or only affected Order Forms (a) for cause upon written notice to the other Party if the other Party has committed a material breach of this Agreement and the breach remains uncured 30 days after the breaching party has received written notice of the breach from the non-breaching party, or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
7.3. Effect of Termination. If the Subscription Services provided under this Agreement are terminated for any reason, Cut+Dry shall have no obligation to provide the Subscription Service, or any Professional Services or support services after the effective date of the termination. If the Subscription Service is terminated by Cut+Dry due to Subscribers uncured breach of an Order Form or this Agreement, Subscriber will immediately pay to Cut+Dry all Subscription Fees for the remainder of the Initial Term or then-current Renewal Term (as applicable), and will make all other payments that have accrued prior to the effective date of termination. If the Subscription Service is terminated due to Cut+Dry’s uncured breach or for non-renewal of a Term, Subscriber will immediately pay to Cut+Dry any Subscription Fees, Professional Services Fees, and other amounts that have accrued prior to the effective date of the termination.
7.5. Survival. Any provision of the Agreement that contemplates or governs performance or observance subsequent to its termination or expiration will survive the expiration or termination of this Agreement (or the applicable Order Form) for any reason. Subscriber may be provided with limited access to the Subscription Service for fourteen (14) days following termination of the Subscription Service. Subscriber may retrieve Subscriber Data through the Subscription Service through standard reports. Any requests for Cut+Dry’s retrieval of Subscriber Data must be requested through Cut+Dry’s support team. If applicable Cut+Dry will provide a Professional Services Fee based statement of work to Subscriber for review and acceptance to retrieve the requested Subscriber Data.
8. PROPRIETARY RIGHTS.
8.1. Services and Cut+Dry Content. The Services (including the Subscription Services (including all derivatives or improvements thereof) and Professional Services) and Cut+Dry Content, and all Intellectual Property Rights in and to them, are and shall remain owned by Cut+Dry (and its licensors, as applicable) and are protected by copyright, trademark, patent, trade secret and other laws and treaties. Subject to the terms and conditions of this Agreement, Cut+Dry hereby grants Subscriber a limited, personable, revocable, non- sublicensable and non-transferable license for their Authorized Users to access and use the functions and features of the Subscription Services during the Subscription Term solely for the Authorized Purpose(s). Any derivative work Subscriber or any Authorized Users may create of any part of the Subscription Services or Cut+Dry Content, and all rights be therein, shall be owned solely by Cut+Dry. To that end, Subscriber hereby irrevocably transfers and conveys to Cut+Dry, without further consideration, all right, title and interest that Subscriber or any Authorized User may have or acquire in any such derivative work.
8.2. User Content and Subscriber Data License. Subscriber hereby grants to Cut+Dry a non- exclusive, transferable, fully paid, worldwide license to use, copy, store reproduce, process, adapt, publish, transmit, host and display User Content for the purpose of (i) providing you and other Subscribers the Subscription Services and associated support; and (ii) analyzing and improving the operation of the Subscription Services. Additionally, Subscriber hereby grants Cut+Dry an irrevocable, worldwide, royalty-free, transferable, and sublicensable right and license to access, use, modify, adapt, publish, prepare derivative works of, distribute, publicly perform, publicly display, and otherwise exploit Subscriber Data (including data formulated or derived from Subscriber Data), directly or indirectly, in any form and authorizes any third party that independently collects Subscriber Data from Subscriber (each, an “Other Subscriber Data Licensee”) in connection with the Subscription Services to grant Cut+Dry access to and use of that data. Each Other Subscriber Data Licensee is a beneficiary under this Section. The foregoing grants include, without limitation and notwithstanding anything in the Agreement to the contrary, the right for Cut+Dry to share Subscriber Data with third parties for any reason related to the provision of the Subscription Services or the development or promotion of the services, products, or businesses of Cut+Dry and its direct and indirect affiliates (including parent and subsidiary companies), subject to applicable law. Any Subscriber Data or User Content that is aggregated in a de-identified format such that Subscriber nor its Authorized Users may be practicably identified will be owned by Cut+Dry or its business partners and may be used and shared by Cut+Dry for any legally permissible purpose.
8.3. Trademarks. If Cut+Dry agrees to create, at Subscriber’s request, any Subscriber-branded or co-branded user interfaces through which Authorized Users will access the Subscription Services, Subscriber hereby grants to Cut+Dry during the Subscription Term a non-exclusive, worldwide, royalty-free license to use and display the Subscriber’s name, logo and other trademarks (“Subscriber Trademarks”) designated by Subscriber on such user interface(s). In such event, Cut+Dry will use the relevant Subscriber Trademarks in accordance with Subscriber’s then-current trademark usage guidelines, if any, provided by Subscriber to Cut+Dry and only for the agreed purposes. Subject to the foregoing license, Subscriber will retain all Intellectual Property Rights that it may have in and to the Subscriber Trademarks, and all use thereof by Cut+Dry shall inure to the sole benefit of Subscriber.
8.4. Feedback. If Cut+Dry receives from Subscriber or any of its Authorized Users any suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to the Services or any other Cut+Dry products, offerings or services (“Feedback”), Cut+Dry may use, disclose and exploit such Feedback without restriction and without paying any royalties or other compensation, including to improve the Services and to develop, market, offer, sell and provide other products and services.
8.5. Third Party Materials . The Subscription Services may include software, content, data, or other materials, including related documentation, that are owned by Persons other than Cut+Dry and that are provided to Subscriber on Subscriber terms that are in addition to or different from those contained in the Agreement (“Third-Party Licenses”). A list of all materials, if any, included in the software inhering in the Subscription Services and provided under Third-Party Licenses may be provided from time to time. The applicable Third-Party Licenses are accessible via links from the web sites of those licensors. Subscriber is bound by and will comply with all Third-Party Licenses. Any breach by Subscriber or any of its Authorized Users of any Third-Party License is also a breach of the Agreement.
8.6. No Implied Licenses by Cut+Dry. Subscriber acknowledges that there are no licenses granted by Cut+Dry by implication under this Agreement. Cut+Dry reserves all rights that are not expressly granted herein. Subscriber acknowledges that, as between the Parties, Cut+Dry owns all Intellectual Property Rights and proprietary interests that are embodied in, or practiced by, the Subscription Services or other Services, with the exception of Intellectual Property Rights in or to Subscriber Data or to User Content that may be distributed through the Subscription Services.
9. CONFIDENTIALITY OBLIGATIONS.
9.1. Generally . “Confidential Information” means information and materials related to Cut+Dry or the Subscription Services, and all non-public, confidential or proprietary information of the Cut+Dry Entities, including specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Cut+Dry to Subscriber or otherwise obtained by Subscriber from Cut+Dry, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with the Agreement. “Confidential Information” does not include any information that Subscriber can demonstrate: (a) was publicly known and made generally available in the public domain prior to the time of disclosure to Subscriber by Cut+Dry; (b) became publicly known and made generally available after disclosure to Subscriber by Cut+Dry through no action or inaction of Subscriber; or (c) was in the possession of Subscriber, without confidentiality restrictions, at the time of disclosure by Cut+Dry, as shown by Subscriber’s files and records. Confidential Information is, as between Cut+Dry and Subscriber, the sole property of Cut+Dry and may include valuable trade secrets of Cut+Dry. Subscriber will treat the Confidential Information as confidential and will not, without the express written consent of Cut+Dry: (i) use Confidential Information except for the purposes expressly permitted in the Agreement; (ii) distribute or market Confidential Information to any third party; (iii) disclose information relating to the documentation, performance, or quality of the Subscription Services to any third party (except as permitted by law); or (iv) disassemble, decompile, or reverse engineer any portion of the Subscription Services. The provisions of this paragraph are effective during the Term and for a period of two years after the Term, except that, for information that constitutes a trade secret under applicable law, the protection period is extended for so long as that information continues to qualify as a trade secret. Subscriber may disclose Confidential Information if and only to the extent required by law if Subscriber gives Cut+Dry prompt written notice of the requirement prior to the disclosure and assistance in obtaining an order protecting the information from public disclosure.
9.2. Disclosure of Subscriber Information . To the fullest extent permitted by applicable law, Cut+Dry may disclose information provided by Subscriber to third parties (such as financial institutions, credit reporting agencies and suppliers) in order to, among other things, (a) comply with business partner requirements, (b) verify information about Subscriber and its qualification to use a Subscription, (c) implement risk management controls, (d) ensure regulatory and related compliance, (e) analyze and evaluate the Subscription Services, and (f) deliver and support the Subscription Services. Cut+Dry may periodically conduct reporting to assess Subscriber’s on-going ability to meet the requirements to use the Subscription Services.
9.4. Consent to Use of Data . Subscriber agrees that Cut+Dry and certain of its third party partners may exchange information about Subscriber to the extent necessary to effectuate the Subscription Services. Certain of Subscriber’s information may be collected and stored by such third parties, shared with other third parties in a manner consistent with law, and aggregated in a non-registrant specific manner by third party partners or marketing purposes. Cut+Dry may collect, process, and use technical data and related information, including Unique Device Identifier, and other technical information about Subscriber’s devices, system and application software, and peripherals, that is gathered periodically to facilitate the provision of Updates, product support, and other services to Subscriber (if any) related to the Subscription Services, and to track and report Subscriber’s activity inside of the Subscription Services hosted by or on behalf of Cut+Dry, including for analytics purposes.
9.5. Audits . From time to time, Cut+Dry may require Subscriber to furnish financial and other information relating to Subscriber and its ability to fulfill its financial and other obligations under the Agreement. To facilitate that audit, Subscriber will, upon Cut+Dry’s request, make available books and records that pertain to Subscriber’s payment processing transactions and its compliance with the Agreement.
Compliance with Laws
. Subscriber will comply with all applicable Data Privacy and Security Laws
and represents that it has all necessary rights and consents under
applicable law and all Data Privacy and Security Laws to disclose to
Cut+Dry, or to allow Cut+Dry to collect, use, store, and disclose any
information that Cut+Dry may collect directly from Subscriber’s web site
end-users via cookies or other means. Subscriber further represents and
warrants that Cut+Dry will not be in breach of any Data Privacy and
Security Laws or applicable laws by collecting, receiving, using, and
disclosing such information in connection with the Subscription Services.
Subscriber acknowledges and agrees that Cut+Dry may provide some or all of
the Subscription Services from systems located within the United States or
countries outside of the United States.
10.1. Governing Law and Jurisdiction. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law rules. Subject to Section 10.2 of this Agreement, Subscriber and Cut+Dry submit to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in the county of Santa Clara, California and waive all challenges to such jurisdiction and venue including, without limitation, forum non conveniens. Neither the Uniform Commercial Code nor The United Nations Convention on Contracts for the International Sale of Goods shall apply to this Agreement or any transaction contemplated hereunder.
10.2. Arbitration. Except for disputes arising from or related to intellectual property rights or ownership and the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any action arising out of or in connection with this Agreement will be settled by binding arbitration in Palo Alto, CA, U.S.A. under the Rules of the American Arbitration Association by one arbitrator appointed in accordance with such rules. SUBSCRIBER AND CUT+DRY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Subscriber and Cut+Dry agree otherwise, the arbitrator may not consolidate more than one Party’s claims, and may not otherwise preside over any form of a representative or class proceeding. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys' fees and costs incurred in connection with any arbitration or litigation instituted in connection with this Agreement. Despite the provisions of this Section, nothing in the Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
If Cut+Dry makes any future change to this arbitration provision, other than a change to Cut+Dry’s address for notice, Subscriber may reject the change by sending Cut+Dry written notice within 30 days of the change, in which case Subscriber’s account with Cut+Dry will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes Subscriber rejected will survive.
10.3. Force Majeure. Notwithstanding any other provision of this Agreement, no party to the Agreement shall be deemed in default or breach of this Agreement or liable for any loss or damages or for any delay or failure in performance (except for the payment of amounts due) due to any cause beyond the reasonable control of, and without fault or negligence by, such party or its officers, directors, employees, agents or contractors.
10.4. Notice. All notices required or permitted under this Agreement will be in writing and sent by certified mail, return receipt requested, or by reputable oversight courier, or by hand delivery. The notice address for Cut+Dry and Subscriber shall be their respective addresses specified in the applicable Order Form. Any notice sent in the manner sent forth above shall be deemed sufficiently given for all purposes hereunder (i) in the case of certified mail, on the second business day after deposited in the U.S. mail and (ii) in the case of overnight courier or hand delivery, upon delivery. Either party may change its notice address by giving written notice to the other party by the means specified in this Section.
10.5. Construction; Headings. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any Party by any court or arbitrator by reason of such Party having or being deemed to have structured or drafted such provision. The headings in this Agreement are for reference purposes only and shall not be deemed to have any substantive effect.
10.6. Publicity . Cut+Dry may include Subscriber’s name and logo in its customer lists and on its website. Upon signing, Cut+Dry may issue a high-level press release announcing the relationship and the manner in which Subscriber will use the Cut+Dry’s solution. Cut+Dry shall coordinate its efforts with appropriate communications personnel in Subscriber’s organization to secure approval of the press release upon Subscriber’s request.
10.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, then the Parties agree to replace it with an enforceable provision reflecting the intent of the original provision as nearly as possible in accordance with applicable law, and the remaining provisions of this Agreement will remain in full force and effect.
10.8. Waiver. The failure of either Party at any time to require performance by the other Party of any provision of this Agreement shall not affect in any way the full right to require the performance at any subsequent time. The waiver by either Party of a breach of any provision of this Agreement shall not be taken or held to be a waiver of the provision itself. Any course of performance shall not be deemed to amend or limit any provision of this Agreement.
10.10. Counterparts; Signatures. This Agreement may be signed in counterparts with the same effect as if the signatures were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. For purposes of this Agreement, a facsimile copy of a Party’s signature made by reliable means shall be sufficient to bind such Party.
10.11. Disclosures and Notices and E-Sign Consent . Cut+Dry may provide disclosures and notices regarding the Services or the Agreement to Subscriber electronically by posting it to it’s the Cut+Dry Web Sites, or by emailing it to an email address listed in Subscriber’s account. Those electronic disclosures and notices will have the same meaning and effect as if Subscriber was provided with physical copies. Those disclosures and notices are considered received by Subscriber within 48 hours of the time posted or emailed to Subscriber unless Cut+Dry receives notice of non-delivery. It is Subscriber’s responsibility to keep email address(es) valid and active and to monitor the email account(s). Cut+Dry will not be liable to Subscriber or any third party for any losses resulting from Subscriber’s failure to comply with the foregoing. To withdraw consent to receiving disclosures and notices electronically, Subscriber should contact firstname.lastname@example.org.
10.12. Assignment . Subscriber will not assign or transfer its benefit or obligations under the Agreement without Cut+Dry’s prior written consent. Any sale or transfer of the equity interests of Subscriber’s business such that the holders of the equity interests of Subscriber’s business do not own more than 50% of the equity interests immediately after such transfer shall be deemed an assignment of this Agreement. Cut+Dry may assign any or all of its rights under the Agreement in its sole discretion. Subject to the foregoing, the Agreement is binding upon the parties and their successors and assigns (including those by merger and acquisition).
10.13. Agreement Changes . Cut+Dry has the right to change or add to the terms of the Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Subscription Services (an “ Agreement Change”) with notice that is reasonable in light of the circumstances, such as by updating the Agreement on the Cut+Dry Web Site. Use of the Cut+Dry Services after notice of any Agreement Change will confirm that Subscriber have read, accepted, and agreed to be bound by the modifications to the Agreement or constitute Subscriber’s acceptance of the changed Subscription. Notwithstanding the foregoing, (a) any dispute between the parties that arose before the effective date of an Agreement Change is governed by the Agreement (including the binding individual arbitration clause) that was in place when the dispute arose and (b) if an Agreement Change negatively and materially impacts Subscriber’s rights under the Agreement, and Cut+Dry does not waive the applicability of those changes to Subscriber, Subscriber may terminate the Agreement by providing written notice thereof to Cut+Dry, and in that event, is released from any payment obligations under the Agreement except for outstanding fees owed. That notice must be given within 30 days following the date of notice by Cut+Dry of the Agreement Change.