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Welcome to the Encompass Team!
This Handoff Terms of Service Agreement is between Handoff Technologies, Inc. (the “Provider”) and the customer agreeing to this agreement (the “Retailer”). By clicking agree upon sign up, using any of the services provided, or otherwise committing to a software integration you are agreeing to be legally bound by this agreement.Order From:1. Service Description (the "Services")
- Inventory/POS Management (“Invoice Management and Enhanced Mobile Receiving Product” ).
- Direct-to-consumer Retailer eCommerce Website, eCommerce marketplace application, and Delivery Management Software (“eCommerce Products”).
- Retail Insights (“RI Product”).
The “Retailer Software” includes all of the Provider’s proprietary applications provided to the Retailer.
The Services include:
- a license to use Retailer Software, as defined below, in accordance with this Agreement,
- Retailer Onboarding, as defined below, and
- any services to be provided by Provider subject to additional fees.
2. Retailer and Provider Initial Setup and Ongoing Obligations.
a. “Retailer Onboarding” includes the following:
- Provider’s configuration of Retailer Software on behalf of Retailer such that the Retailer Software as applicable presents a site to Retailers for registration and initial setup;
- A hosted instantiation of Retailer Software unless Retailer hosts the eCommerce Product;
- Technical support and service to Retailer to maintain operation of the Retailer Software; and
- Regular updates, fixes, or changes in the configuration of the Retailer Software.
b. If Retailer agrees to the eCommerce Products, Retailer shall:
- upload all inventory, pricing, and quantity point-of-sale information or allow Provider to set up an integration that allows data from the Retailer’s point-of-sale system to flow to Provider’s server that Provider reasonably requests;
- provide Provider with accurate and complete information, including information regarding Retailer’s store, hours, and delivery zones;
- establish an account with the payment processing company, Stripe, and provide Stripe with all applicable information to allow for the payment processing gateway to successfully connect;
- provide Provider with accurate and complete contact information of delivery drivers, coordinators, and staff; and
- cooperate with Provider’s reasonable requests for any other sales data.
c. If Retailer agrees to the Invoice Management and Enhanced Mobile Receiving Product and/or the RI Product, Retailer shall:
- upload all inventory or allow Provider to set up an integration that allows data from the Retailer’s point-of-sale system to flow to Provider’s server that Provider reasonably requests;
- cooperate with Provider’s reasonable requests for any other sales data.
d. Retailer’s Ongoing Operational Obligations for the eCommerce Products, Retailer shall:
- fulfill and deliver orders placed through the Retailer Software to Customers no longer than 60 minutes after the order is placed;
- maintain its inventory system in machine readable form, and notify Provider of any changes; and
- resolve all issues with Customers, except for issues related to Customer’s use of the Consumer Software.
For the avoidance of doubt, Provider does not sell, offer to sell, or solicit sales of alcohol. Provider’s services enable a Customer to search via the Consumer Software for alcohol and other products available for sale by Retailers. Upon Retailer’s acceptance of a Customer’s order, Retailer shall charge Customer for the purchase amount (plus any additional fees) and arrange for the delivery of the ordered products.
3. Billing Period
- If Retailer is purchasing the Direct-to-consumer Retailer eCommerce Website or the Invoice Management and Enhanced Mobile Receiving Product, then Provider will invoice Retailer on a monthly, quarterly, or yearly basis. Retailer must submit payment within 15 days of receipt of an invoice from Provider.
4. Term (the “Term”)
- Initial Term: 12 months. Renewal Term: consecutive 1-month renewal periods.
1. Provider Services and Retailer Obligations
1.1. Provider agrees to provide the Services agreed to by the Retailer. Provider undertakes to provide the Services on a commercially reasonable basis. Provider reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (i) maintain or enhance: (1) the quality or delivery of the Services to its customers; (2) the competitive strength of or market for the Services; or (3) the Services’ cost efficiency or performance; or (ii) to comply with applicable Law. For the purposes of this Agreement, “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirements of any federal, state, local, or foreign government or any arbitrator, court or tribunal of competent jurisdiction.
1.2. Subject to and conditioned on Retailer’s compliance with the terms and conditions of this Agreement, including the Retailer Obligations, Provider hereby grants Retailer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the Services (including any Provider Components (as defined below) incorporated therein) during the Term, solely for use by Authorized Users (as defined below) in accordance with the terms and conditions of this Agreement. Such use is limited to Retailer’s internal business purposes. For the purposes of this Agreement, “Authorized User(s)” shall mean Retailer’s employees, consultants, contractors, and agents (i) who are authorized by Retailer to access and use the Services under the rights granted to Retailer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
1.3. Retailer acknowledges that Provider, prior to or during the course of this Agreement, has or may develop (resulting from the efforts of Provider, Retailer, or any other person, working together or alone) tools, ideas, concepts, processes, methodologies, software, and know-how (“Provider Components”), some of which Provider may use in the performance of Services. The parties agree that Provider shall retain exclusive ownership of all Provider Components and shall be entitled to use any and all Provider Components in connection with the performance of Services for other parties.
1.4. Provider may, directly or indirectly, disable, suspend, terminate, or otherwise deny Retailer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (i) Provider believes, in its reasonable discretion, that Retailer or any Authorized User has failed to comply with any term of this Agreement or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or (ii) this Agreement expires or is terminated. This Section 1.5 does not limit any of Provider’s other rights or remedies, whether at law, in equity, or under this Agreement. For the purposes of this Agreement, “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
1.5. Following the successful placement of an order, the Retailer will receive a notification that an order has been placed (an “Order”), including the product(s), price, tax, delivery fee, and user information (e.g., name, address, and phone number). Once the Retailer accepts the Order, a confirmation email/notification will be sent to the customer with the product(s) ordered, store, price, tax, tip, delivery fee, and Retailer information (e.g., name, address, and phone number). The customer will then be charged by the Retailer and the Retailer will prepare and deliver product(s) in accordance with the Retailer Obligations to the address provided by the customer.
2. Proprietary Rights and Use of the Services
2.1.Intellectual Property Rights. For the purposes of this Agreement, “Intellectual Property Rights” shall mean any and all proprietary rights of any kind, tangible or intangible, now known or hereafter existing, including without limitation copyrights (including neighboring rights and moral rights), trade secret, database protection, trademark (and the goodwill associated therewith), and patent and other industrial property rights, and all registrations, and applications thereof now or hereafter in force in any jurisdiction throughout the world.
2.2.Retailer Intellectual Property. Retailer shall own all rights, titles, and interest in and to all Retailer Data provided to Provider pursuant to this Agreement. For the purposes of this Agreement, “Retailer Data” means information, data, and other content, in any form or medium, that is entered or input into the Services by Retailer or any Authorized User by or through the use of the Services. For the avoidance of doubt, Retailer Data does not include Performance Data or any other information reflecting the general access or use of the Services by or on behalf of Retailer or an Authorized User.
2.3.Provider’s Use of Retailer Data. Notwithstanding anything to the contrary, Provider shall have the right to collect and analyze data and other information related to the provision, use, and performance of various aspects of the Services and related systems and technologies, including aggregate sales data including, but not limited to, point of sale data (for example, product name, product item size, product package size, product price, product sale price, product quantity, available inventory) and other data and information derived from Retailer Data (collectively, “Performance Data”). Retailer acknowledges that Provider may collect and analyze Performance Data and use such Performance Data (during and after the Term) to: (i) improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Provider offerings and (ii) develop aggregate sales metrics for the supply chain ecosystem. Further, Retailer acknowledges that Provider may disclose Retailer Data solely in the aggregate or other de-identified form in connection with its business. Retailer hereby unconditionally and irrevocably grants to Provider an assignment of all rights, title, and interest in and to the Performance Data, including all Intellectual Property Rights relating thereto.
2.4.Data Backup. The Services do not replace the need for Retailer to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF RETAILER DATA.
2.5.Ownership of Deliverable. Provided that Retailer is not in breach of this Agreement, Provider hereby assigns all rights, title and interest (excluding any associated Intellectual Property Rights) in and to the Deliverables prepared by Provider on behalf of Retailer.
2.6.Reservation of Rights. This is a subscription to a software-as-a-service offering. Subject to the limited rights expressed under this Agreement, Provider hereby reserves and shall solely own all rights, title and interest in and to the Services (including any embedded Provider Components), including all related Intellectual Property Rights. Any feedback regarding or improvements to the Services offered by Retailer or any Authorized User to the Provider including all related Intellectual Property Rights shall be exclusively owned by the Provider without any payment therefor. With respect to Third Party Software (as defined below), the applicable third party providers own all right, title, and interest in and to the Third Party Software, including all Intellectual Property Rights therein.
2.7.Use Restrictions. Retailer shall not, and shall not permit any Authorized User or any other Person to, access or use the Services except as expressly permitted in this Agreement and, in the case of Third Party Software, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Retailer shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble, copy, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services provided under this Agreement; (ii) modify, translate, create derivative works or improvements of the Services; (iii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology service; (iv) input, upload, transmit, or otherwise provide to or through the Services any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code (as defined below); (v) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Provider’s systems, or Provider’s provision of the Services to any third party, in whole or in part; (vi) remove, delete, alter, or obscure any trademarks, warranties, disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary notices from any Services, including any copy thereof; (vii) access or use of the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates the Intellectual Property Right or any other right of any third party or that violates applicable Law; and (viii) access or use the Services for purposes of competitive analysis of the Services, the development, provision, or use of a competing software service or product or any other purpose that is to Provider’s detriment or commercial disadvantage. For the purpose of this Agreement, “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to: (1) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any computer, software, firmware, hardware, system or network or (2) prevent Retailer or any Authorized User from accessing or using the Services as intended by this Agreement.
2.8.Third Party Software. Retailer’s rights in third party software, if any, and other data, programs and other materials provided by third parties (“Third Party Software”), regardless of whether or not obtained with the assistance of Provider, shall be as provided in the applicable third party license agreement, and Retailer is solely responsible for compliance with such third party agreements and policies.
Each party acknowledges that it may receive or have access to Confidential Information (as defined below) of the other party in the course of performing its obligations and exercising its rights under this Agreement. Each party agrees to maintain the confidentiality of the other party’s Confidential Information using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care. Further, each party agrees not to use the disclosing party’s Confidential Information except in performing its obligations under this Agreement and not to disclose the Confidential Information to anyone except its employees and advisors who need access to the Confidential Information to perform their obligations to Provider or the Retailer and who have agreed in writing to the restrictions on use and disclosure of Confidential Information set forth herein (“Representatives”); provided that the receiving party will ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with this Section 3. “Confidential Information” means any business or technical information of Provider or Retailer that is designated by a party as “confidential” or “proprietary” at the time of disclosure or due to its nature or under the circumstances of its disclosure the party receiving such information knows or has reason to know should be treated as confidential or proprietary, including information consisting of or relating to the disclosing party’s technology, trade secrets, know-how, business operations, plans and strategies. Confidential Information does not include information that the receiving party can demonstrate was: (i) rightfully known to the receiving party without restriction on use or disclosure prior to such information being disclosed or made available to the receiving party in connection with this Agreement; (ii) was or becomes generally known by the public other than by the receiving party or any of its Representatives’ noncompliance with this Agreement; (iii) was or is received by the receiving party on a non-confidential basis from a third party that, to the receiving party’s knowledge, was not or is not, at the time of receipt, under any obligation to maintain its confidentiality; or (iv) the receiving party can demonstrate was or is independently developed by the receiving party without reference to or use of any of the disclosing party’s Confidential Information.
4. Payment of Fees
Retailer shall pay to Provider the applicable fees for the Services in the amount, time and manner detailed in the Order Form. Invoices shall be due within thirty days of the date of the invoice, unless otherwise agreed to by the parties in writing. Failure to pay amounts due may result in termination or suspension of Services at the discretion of the Provider. All expenses associated with collections (including reasonable attorney’s fees) shall be the responsibility of the Retailer.
5. Term and Termination
5.1.Term. The initial term of this Agreement shall begin on the Effective Date and, unless earlier terminated pursuant to this Agreement, will continue in effect for the Initial Term (as set forth on the Order Form). This Agreement shall automatically renew for consecutive periods (as set forth on the Order Form), unless earlier terminated pursuant to this Agreement or either party gives notice of non-renewal at least fifteen days prior to the expiration of the then-current term (each, a “Renewal Term” and collectively, the “Term”).
5.2.Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
- either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement and such breach: (i) is incapable of cure or (ii) being capable of cure, remains uncured for thirty days after the non-breaching party provides the breaching party with written notice of such breach; for clarity, a breach by Retailer of its Retailer Obligations shall be considered a material breach of this Agreement;
- either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; and
- Provider may terminate this Agreement, effective on written notice to Retailer, if Retailer fails to pay any amount due hereunder and such failure continues more than fifteen days after delivery of written notice thereof.
5.3.Effect of Termination. Upon any expiration or termination of this Agreement, except as otherwise provided in this Agreement:
- all rights, licenses, consents, and authorizations granted by Provider to Retailer hereunder will immediately terminate;
- Provider shall immediately cease all use of Retailer Data or Retailer’s Confidential Information, provided that, for clarity, Provider’s obligations under this Section 5.3 do not apply to any Performance Data;
- Retailer shall immediately cease all use of any Services and promptly return to Provider or destroy Provider’s Confidential Information, including all documents and tangible materials containing, reflecting, incorporating, or based on Provider’s Confidential Information and permanently erase all of Provider’s Confidential Information from all systems Retailer directly or indirectly controls;
- notwithstanding anything to the contrary in this Agreement, Provider may retain Retailer Data in its backups, archives, and disaster recovery systems until such Retailer Data is deleted in the ordinary course; and
- if Provider terminates for cause (including nonpayment of fees), all fees that would have become payable had the Agreement remained in effect until expiration of the Term, will become due and payable, and Retailer shall pay such fees, together with previously accrued but not yet paid fees, on receipt of Provider’s invoice therefor and no amounts shall be pro-rated.
6. Representations and Warranties
6.1. Each party represents and warrants to the other party that (i) it has the right to enter into this Agreement and perform its obligations hereunder; (ii) it is organized under the Laws of its jurisdiction in a corporate or equivalent form; (iii) to the best of its knowledge there are no Actions (as defined below) against it (including without limitation bankruptcy, dissolution, liquidation, or any assignments for the benefit of creditors) that would impair its ability to honor all legal obligations hereunder; (iv) the person executing this Agreement on its behalf has been authorized to do so; and (v) the Agreement constitutes its valid, legal and binding obligations enforceable in accordance with its terms.
6.2. Retailer also warrants to Provider that all information and materials provided by Retailer under this Agreement (including Retailer Data) do not and will not: (i) use or include any confidential or proprietary information or trade secrets of any third party, unless Retailer has received a written license from the owner thereof to use as contemplated hereunder and (ii) do not violate the rights of any third party in any jurisdiction, including Intellectual Property Rights.
6.3. Provider represents, warrants, and covenants to Retailer that Provider will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement. If Provider breaches, or is alleged to have breached, the warranty in this Section 6.3, Provider shall, at its sole option as Retailer’s sole remedy, replace the non-conforming Services with Services that conform to this warranty or terminate this Agreement and, provided that Retailer fully complies with its post-termination obligations, promptly refund Retailer a pro-rated amount of any prepaid fees for the period after the termination date.
6.4. Retailer represents, warrants, and covenants to Provider that Retailer is a licensed alcohol retailer and will perform the Retailer Obligations using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
6.5. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, THE SERVICES ARE PROVIDED “AS IS.” PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF WILL MEET THE RETAILER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. FURTHER, ALL THIRD PARTY SOFTWARE AND MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY SOFTWARE AND MATERIALS IS STRICTLY BETWEEN RETAILER AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY SOFTWARE AND MATERIALS.
7. Limitations of Liability
7.1. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT; (ii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (iii) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (iv) COST OF REPLACEMENT GOODS OR SERVICES; (v) LOSS OF GOODWILL OR REPUTATION; OR (vi) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
7.2. IN NO EVENT WILL PROVIDER’S TOTAL LIABILITY TO RETAILER ARISING OUT OF OR RELATED TO THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, EXCEED THE FEES ACTUALLY RECEIVED FROM RETAILER FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION APPLIES EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
7.3. The exclusions and limitations in this Section 7 do not apply to either party’s gross negligence or willful misconduct.
8.1.Provider Indemnification. Provider shall indemnify, defend and hold harmless Retailer and its officers, contractors and employees (“Retailer Indemnitee(s)”) from and against any loss, damages, deficiencies, claims, judgments, settlements, interest, awards, penalties, fines, costs or expense (including reasonable attorneys’ fees) (“Losses”) incurred by Retailer resulting from a claim, action, lawsuit, demand, arbitration, litigation, or other proceeding (each, an “Action”) by a third party (other than an affiliate of Retailer) alleging that Retailer Indemnitee’s or an Authorized User’s use of the Services (excluding Deliverables) in accordance with this Agreement infringes or misappropriates such third party’s U.S. Intellectual Property Rights. The foregoing obligation does not apply to the extent that such alleged infringement arises from: (i) Retailer Data or Third Party Software; (ii) access to or use of the Services in combination with any hardware, system, software, network, or other materials or services not provided by Provider or specified for Retailer’s use; (iii) modification of the Services other than: (1) by or on behalf of Provider or (2) with Provider’s written approval and in accordance with Provider’s written specification; (iv) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Retailer by or on behalf of Provider; or (v) an act, omission, or other matter described in Section 8.2 below, whether or not the same results in any Action against or Losses by a Provider Indemnitee. If any Services are, or in Provider’s opinion, are likely to become, the subject of an Action alleging infringement of Intellectual Property Rights through no fault of Retailer, Provider shall at its expense and option: (i) procure the right for Retailer to continue using the affected Services; (ii) replace the affected Services with a non-infringing equivalent; (iii) modify the affected Services to make such Services non-infringing; or (iv) accept return of the affected Services and refund to Retailer the fees paid for such Services less a reasonable amount for Retailer’s use of the Services up to the time of return.
8.2.Retailer Indemnification. Retailer shall indemnify, defend and hold harmless Provider and its officers, contractors and employees (“Provider Indemnitee(s)”) from and against any Losses incurred by a Provider Indemnitee resulting from an Action by a third party to the extent that such Losses arise out of or result from: (i) Retailer Data; (ii) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Retailer or any Authorized User, including Provider’s compliance with any specifications or directions provided by or on behalf of Retailer or any Authorized User; (iii) Retailer’s or any Authorized User’s misuse of the Services or any of the circumstances set forth in Section 8.1 subsections (ii) – (iv); (iv) allegations of facts that, if true, would constitute Retailer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; (v) negligence or more culpable act or omission (including recklessness or willful misconduct) by Retailer or any Authorized User; or (vi) any bodily injury, death of any person, or damage to real or tangible personal property caused by the negligent or more culpable acts or omissions of Retailer or any Authorized User, including reckless or willful misconduct.
8.3.Indemnification Procedures. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 8.1 or Section 8.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 8.3 will not relieve the Indemnitor of its obligations under this Section 8, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
8.4.SOLE REMEDY. THIS SECTION 8 SETS FORTH RETAILER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND PROVIDER MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9.1. When Retailer or an Authorized User uses the Services or Retailer Software, or send emails, text messages, and other communications from a mobile device to Provider, then such Retailer or Authorized User may be communicating with Provider electronically. Retailer consents (and shall ensure that its Authorized Users consent) to receive communications from Provider electronically, such as e-mails, telephone calls, text messages, mobile push notifications, or notices and messages through a mobile device or the Retailer Software. Retailer agrees (and shall ensure that its Authorized Users agree) that all agreements, notices, disclosures, and other communications that Provider provides to Retailer electronically satisfy any legal requirement that such communications be in writing.
9.2. By providing Provider with the mobile phone number of Retailer and its Authorized Users, Retailer consents (and shall ensure that its Authorized Users consent) to be contacted by Provider via telephone, SMS, or MMS messages, and Retailer and Authorized Users consent to receiving such communications for transactional, operational, or informational purposes. When Retailer provides mobile device numbers to Provider, Retailer represents and warrants that it has received consent from the authorized user of the relevant account.
10. General Terms
10.1.Insurance. During the Term of this Agreement and for a period of one (1) year thereafter, Retailer shall, at its own expense, maintain and carry in full force and effect, subject to appropriate levels of self-insurance, at least the following types and amounts of insurance coverage: (i) commercial general liability with limits no less than $1,000,000 for each occurrence and $3,000,000 in the aggregate, including bodily injury and property damage, which policy will include contractual liability coverage insuring the activities of Provider hereunder and (ii) commercial automobile liability with limits no less than $1,000,000, combined single limit for each occurrence involving personal injuries and/or property damage. Further, Retailer shall ensure that all insurance policies required pursuant to this Section 10.1 name Provider and Provider’s affiliates, including, in each case, all successors and permitted assigns, as additional insureds and waive any right of subrogation of the insurers against Provider or any of its affiliates. Upon written request of Provider, Retailer shall provide Provider with copies of the certificates of insurance and policy endorsements for all insurance coverage required by this Section 10.1 and shall not do anything to invalidate such insurance. This Section 10.1 shall not be construed in any manner as waiving, restricting, or limiting the liability of either party for any obligations imposed under this Agreement (including, but not limited to, any provisions requiring a party hereto to indemnify, defend, and hold the harmless under this Agreement).
10.2.Independent Relationship. The relationship between the parties is that of independent contractors. Nothing in this Agreement shall be construed as creating any agency, partnership, joint-venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
10.3.Assignment. Retailer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, without Provider’s written consent. Notwithstanding the forgoing, either party may assign this Agreement upon notice to the other party, in the event of an acquisition, merger, reorganization or other transfer of substantially all of its assets.
10.4.No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
10.5.Force Majeure. In no event will Provider be liable or responsible to Retailer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control (a “Force Majeure Event”), including (i) acts of God; (ii) flood, fire, earthquake, epidemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order or Law; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of sixty days or more.
10.6.Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
10.7.Publicity. With Retailer’s prior written consent and approval, Provider may use Retailer’s name in promoting Provider’s services as a part of Provider’s website or marketing material.
10.8.Governing Law. This Agreement is governed by and interpreted in accordance with the laws of the State of Colorado, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado.
10.9.Dispute Resolution. Any and all claims, disputes, controversies, or disagreements of any kind whatsoever arising out of or in connection with this Agreement between Provider and Retailer involving the construction or application of any of the terms, provisions or conditions of this Agreement shall, on the written request of either party served on the other, be submitted to binding arbitration, and such arbitration shall comply with and be governed by the Commercial Arbitration Rules of the American Arbitration Association then existing, and shall be conducted in the city of Denver or Fort Collins in the State of Colorado. Notwithstanding the foregoing, Retailer acknowledges and agrees that Provider shall have the right to seek through judicial process, preliminary injunctive relief to preserve the status quo or prevent irreparable injury in the federal courts of the United States or the courts of the State of Colorado, in each case located in either the City and County of Denver or City of Fort Collins and County of Larimer before the matter can be heard in arbitration. Further, Retailer acknowledges and agrees that a breach or threatened breach by it of any of its obligations under Section 1 (Services Defined), Section 2.7 (Use Restrictions) or Section 3 (Confidentiality) would cause Provider irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Provider will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
10.10.Entire Agreement. This Agreement, together with end user license agreement and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes and terminates all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
10.11.Notices. All notices and requests in connection with this Agreement will be given or made upon the respective parties in writing. If faxed, the notice will be deemed given as of the business day following the day the notice is faxed, provided a hard copy acknowledgment of successful faxed notice transmission is retained. Notice may also be given by mail, postage pre-paid, certified or registered with return receipt requested, e-mail or personal delivery. If mailed, e-mailed or delivered, notice will be deemed to be given on the business day following the day it is received by the recipient.
10.12.Severability. If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable for any reason, then the remainder of this Agreement shall nevertheless remain in full force and effect.
10.13.Survival. The provisions set forth in the following sections, and any other right or obligations of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Sections 1 (Services Defined), 2 (Proprietary Rights and Use of the Services), 3 (Confidentiality), 5.3 (Effect of Termination), 6 (Representations and Warranties), 7 (Limitations of Liability), and 8 (Indemnification) shall survive the term of this Agreement.