1.
DEFINITIONS.
For purposes of this Agreement, the following terms
shall have the following meanings:
1.1. "Business Days" shall mean any day, other than Saturday, Sunday and public holidays
in New York, New York.
1.2. "Business Hours" shall mean between 9:00 a.m. and 5:00 p.m. ET on a Business Day.
1.3. "Confidential
Information" shall have the meaning
set forth in Section 12.1.
1.4. "Customer Content" shall mean all data, text, pictures, sound, graphics, logos, marks,
symbols, video, Customer's pricing and inventory data, Customer reviews, Customer's
trademarks, service marks, logos and tradenames and other materials supplied by
Customer to WineFetch pursuant to this Agreement as modified from time to time.
1.5. "Data"
shall mean all data derived from the Private Label Website other than the
Purchase Data.
1.6. "Domain Name"
shall mean the Uniform Resource Locator (URL) specified for the Private Label
Website by WineFetch from time to time.
The initial Domain Name is specified in this Agreement.
1.7. "Intellectual Property Rights" shall mean, on a world-wide basis, any and all now
known or hereafter known tangible and intangible (a) rights associated with
works of authorship including, without limitation, copyrights, and moral
rights, (b) trademark, service mark and trade name rights and similar
rights, (c) trade secret rights, (d) patents, (e) all other intellectual and
industrial property rights of every kind and nature, and (f) all registrations,
applications, renewals, extensions, continuations, divisions or reissues hereof
now or hereafter in force (including any rights in any of the foregoing).
1.8. "Ongoing
Services" shall mean the Hosting
Services, the Maintenance Services and any additional services provided
pursuant to a change order.
1.9. "Ongoing Service Fee(s)" shall mean the monthly fee(s) payable to WineFetch
in consideration for the Ongoing Services.
1.10.
"Private Label Website" shall mean the version of the WineFetch System, in
object code form only, accessible from the Domain Name and configured for Customer.
In the event Customer elects to license one or more modules, but not the entire
Private Label Website, the term "Private Label Website" is deemed to refer to
such module(s).
1.11.
"Purchase Data" shall mean the data related to the purchase of
Customer's products through the Private Label Website.
1.12.
"WineFetch System" shall mean WineFetch's proprietary technology,
including, without limitation, all underlying and related software, and all
updates, derivative works, documentation and tools relating thereto, and all
Intellectual Property Rights therein.
2.
SERVICES. Subject
to Customer's compliance with its obligations herein, WineFetch shall provide
to Customer the Ongoing Services described herein, in accordance with the terms
and conditions of this Agreement.
2.1. Hosting Services. WineFetch shall host the Private
Label Website on the Internet during the Term, subject to downtime that may result from (a) Customer's insufficient
or inadequate bandwidth or technology, (b) general Internet brown-outs,
black-outs and slowdowns, (c) failure of WineFetch providers to provide
sufficient service, (d) bring downs in the ordinary course that are necessary
to maintain, update or refresh the Private Label Website, (e) any
"hacking" or "denial of service" activity by a third party
and (f) any other reason beyond WineFetch's reasonable control.
2.2. Maintenance Services. WineFetch shall maintain the Private Label Website during
the Term. Maintenance shall
consist of telephone or e-mail support provided by a specialist familiar with
the Private Label Website during Business Hours on Business Days.
3.
CUSTOMER
COOPERATION. Customer shall: (a) provide WineFetch, in a timely
fashion, with all information reasonably required for the performance of the
Ongoing Services by WineFetch hereunder, including inventory and pricing data
and Customer Content; (b) cooperate fully with WineFetch to enable WineFetch to
provide the Ongoing Services; and (c) permit WineFetch to include in the
Private Label Website the WineFetch logo, including the statement "Powered by"
" followed by the WineFetch logo.
4.
LICENSE GRANT.
4.1. License Grant by WineFetch. Subject to the terms and conditions of
this Agreement and Customer's compliance with its obligations hereunder,
WineFetch hereby grants to Customer a worldwide, nonexclusive, nontransferable,
non-sublicensable, nonassignable, royalty-free license, during the Term, to
access and use the Private Label Website as made available by WineFetch, solely
for Customer's own business purposes.
Any upgrades to the Private label Website may be offered to Customer for
a cost to be mutually agreed by WineFetch and Customer. Customer may not use the Private Label
Website except pursuant to the limited rights expressly granted herein, and
WineFetch reserves all rights not expressly granted herein. Customer hereby acknowledges and agrees
that it will use the Private Label Website in accordance with all applicable
laws, rules and regulations.
4.2. License Grant by Customer. Subject to the terms of this Agreement,
Customer hereby grants to WineFetch a worldwide, nonexclusive, royalty-free,
fully paid-up license to use, reproduce, distribute, transmit, perform
(publicly, digitally, or otherwise), display (publicly or otherwise), disclose
and make derivative works of (a) the Customer Content in performing the Ongoing
Services and in the search results of WineFetch's website and (b) the Purchase
Data (i) for WineFetch's reporting and marketing purposes, consisting of
compilation of aggregated statistics about its business; (ii) if required by
court order, law or governmental agency; and (iii) to the extent necessary to provide
the Ongoing Services to Customer pursuant to this Agreement.
5.
OWNERSHIP.
5.1. Ownership of Proprietary Technology and Data. Except for the Purchase Data and Customer
Content, Customer agrees that WineFetch is the exclusive supplier of the
Ongoing Services and the exclusive owner of all right, title and interest in
and to the Private Label Website, all software and other technologies related
to the Private Label Website (except for software that WineFetch licenses from
third parties), including the WineFetch System and any other developments,
derivative works or enhancements made pursuant to this Agreement or otherwise
and any materials provided by WineFetch to Customer. To the extent, if any, that ownership of the Private Label
Website does not automatically vest in WineFetch by virtue of this Agreement or
otherwise, Customer hereby transfers and assigns to WineFetch all right, title
and interest that Customer may have in and to the Private Label Website.
5.2. Ownership of Customer Content and Purchase Data. The Customer Content and Purchase Data shall
at all times remain the sole and exclusive property of Customer or its
licensors, who shall retain all Intellectual Property Rights therein.
6.
PAYMENTS.
6.1. Fees.
During the Term, Customer shall pay to WineFetch the Ongoing
Service Fees. In the event that
Customer would like any additional Ongoing Services, such additional services
will be set forth in a mutually agreed change order, with the cost of such
additional services to be mutually agreed by the parties.
6.2. Payment Terms. Customer agrees to pay the Ongoing Service Fees via
automatic payment. Late payments
of any fees may be subject to late fees at the rate of one and one half percent
(1.5%) per month or, if lower, the maximum rate allowed by law, in WineFetch's
discretion. In addition, Customer
agrees to pay any attorney"s fees and/or collection costs incurred by WineFetch
in collecting any past due amounts from Customer.
6.3. Expenses.
Customer shall reimburse WineFetch for all reasonable expenses approved
in advance by Customer and incurred by WineFetch in the performance of all
Ongoing Services hereunder within thirty (30) days after Customer's receipt of
expense statements.
6.4. Taxes.
In addition to all charges payable under this Agreement, Customer shall
be liable for all taxes that are applicable to this Agreement whether or not
WineFetch invoices Customer for such taxes. This provision includes sales, use, excise and personal
property taxes but does not include taxes based on WineFetch's income.
7.
TERMINATION.
7.1. Termination.
Either party shall be entitled to terminate this Agreement on
written notice to the other party in the event that such other party
commits a breach of any obligation under this Agreement that is not cured
within ten (10) Business Days after receiving written notice of such
breach. Either party shall be entitled to terminate this Agreement at any
time with 30 days' prior written notice to the other party.
7.2. Termination Upon Mutual Agreement of the Parties. This Agreement may be terminated at any
time upon the mutual agreement of both parties hereto, evidenced by a writing
signed by both parties.
7.3. Termination for Insolvency. Either party may terminate this
Agreement at any time, upon written notice to the other party if such other
party makes an assignment for the benefit of creditors; is liquidated or
otherwise dissolved; becomes insolvent; is adjudicated bankrupt; or a receiver,
trustee or custodian is appointed for it.
7.4. Result of Termination. Upon the expiration or earlier
termination of this Agreement for any reason:
a. All rights and licenses granted hereunder shall
immediately terminate.
b. Customer shall promptly pay any fees for work
performed by WineFetch prior to expiration or termination of this Agreement.
c. WineFetch shall cease provision of all Ongoing
Services to Customer hereunder.
d. Within 10 Business Days after receipt of request and once all fees have been paid,
WineFetch will provide the Data and any Purchase Data to Customer in a mutually
agreed format.
7.5. Survival.
Sections 4.2(b), 5, 6, 7.4, 7.5, and 8-14 of this Agreement shall
survive any termination or expiration of this Agreement for any reason and
shall continue in full force and effect.
8.
WINEFETCH
REPRESENTATIONS AND WARRANTIES.
8.1. Services.
WineFetch represents and warrants that it will perform the Ongoing
Services with reasonable care and skill in a timely and professional manner.
8.2. Certain Limitations. WineFetch makes no representation or warranty, and shall
have no liability whatsoever with respect to, hardware or software products of
any third parties. EXCEPT AS
STATED IN THIS SECTION 8, THE PRIVATE LABEL WEBSITE AND ONGOING SERVICES ARE
PROVIDED "AS IS" AND WINEFETCH EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, OR
CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF
UNINTERRUPTED ACCESS, TITLE, MERCHANTABILITY, NON-INFRINGEMENT, COURSE OF
DEALING, COURSE OF PERFORMANCE, AND FITNESS FOR A PARTICULAR PURPOSE. IT IS UNDERSTOOD AND AGREED THAT THE
PRIVATE LABEL WEBSITE DOES NOT CONSTITUTE A "CONSUMER GOOD" UNDER ANY STATE OR
FEDERAL WARRANTY LAW.
9.
CUSTOMER
REPRESENTATIONS, WARRANTIES AND COVENANTS. Customer represents,
warrants and covenants that: (a)
it has full right and authority to enter into and perform its obligations under
this Agreement; (b) Customer Content does not and shall not contain any
content, materials, advertising or services that are inaccurate or that
infringe on or violate any applicable law, regulation or right of a third
party, including, without limitation, export laws, or any proprietary,
contract, Intellectual Property Right or privacy right, and that Customer owns
the Customer Content or otherwise has the right to have the Customer Content
published on the Private Label Website; (c) Customer has obtained any authorization(s)
necessary for hypertext links from the Private Label Website to any third party
websites; (d) Customer will not artificially place a load or burden on
WineFetch's systems by the use of test or stress testing equipment or other
means, including, without limitation, automated tools which mine data, without
prior notification to and approval from WineFetch; (e) Customer shall take all
reasonable measures to protect the passwords that provide access to the Private
Label Website, which will in no event be less than the measures Customer uses
to protect the passwords to its own systems; (f) the inventory and pricing data
provided to WineFetch for display on the Private Label Website is accurate; and
(g) Customer shall comply with all applicable laws, rules and regulations in using
the Private Label Website (including newsletter functionality) and operating its business, including any laws
related to the sale or distribution of alcohol. Customer shall have sole responsibility for determining that
the Private Label Website is suitable for Customer's purposes and proper use.
10.
INDEMNITY.
To the fullest extent permitted by law, Customer agrees to indemnify, and hold harmless WineFetch, its
affiliates, agents, successors and assigns and their respective directors,
officers, and employees and to defend any action brought against same with
respect to any claim, demand, cause of action, debt, loss, costs or liability,
including reasonable attorneys' fees, to the extent that such action is based
upon a claim arising or resulting from a breach of any of its representations,
warranties, covenants or obligations hereunder, the Customer Content, the use by
Customer of the Private Label Website other than as contemplated under this
Agreement or the operation of its business, including the sale or distribution
of alcohol.
11.
INTELLECTUAL
PROPERTY. Should Customer's use of the Private Label Website become,
or in WineFetch's opinion, be likely to become the subject of a claim that the
Private Label Website infringes a third party's Intellectual Property Rights,
and except to the extent that such claim arises from Customer Content or Customer's
use of the Private Label Website in combination with materials not provided or
approved by WineFetch, WineFetch shall, at its own expense and at its sole
discretion, (i) procure for Customer the right to continue to use the Ongoing
Services and/or Private Label Website subject to the terms of this Agreement,
(ii) modify or replace the potentially infringing part of the Private Label
Website or Ongoing Services so as to make them non-infringing, or (iii) terminate
this Agreement and refund to Customer any prepaid but unearned Ongoing Service
Fees.
12.
CONFIDENTIAL
INFORMATION.
12.1.
For the purposes of this Agreement, "Confidential
Information" means non-public
information about the disclosing party's business or activities that is
proprietary and confidential, which shall include, without limitation, all
business, financial, technical and other information of a party marked or
designated "confidential" or by its nature or the circumstances surrounding its
disclosure should reasonably be regarded as confidential. Confidential Information will not
include information that: (a) is generally available to the public through no
fault of the receiving party; (b) was already lawfully in the receiving party's
possession, without being subject to a confidentiality obligation to the
disclosing party or a third party, at the time of receipt of the information
from the disclosing party; (c) was obtained by the receiving party from a third
party without a breach by the third party of any confidentiality or other
obligation owed to the disclosing party or a third party; (d) was independently
developed by the receiving party without use or reference to the disclosing
party's Confidential Information; or (e) is required to be disclosed pursuant
to a final order of a court having competent jurisdiction and power to order
such information to be released or made public.
12.2.
Each party agrees (i) that it will not
disclose to any third party or use any Confidential Information disclosed to it
by the other for any purpose other than as permitted under this Agreement and
(ii) that it will take all reasonable measures to maintain the confidentiality
of all Confidential Information of the other party in its possession or control
using the same degree of care it uses to maintain the confidentiality of its
own information of similar importance, but in no event less than a reasonable
degree of care.
13.
LIMITATIONS ON
LIABILITY. EXCEPT WITH RESPECT TO THE INDEMNITY OBLIGATIONS UNDER
SECTION 10, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS,
LOSS OF BUSINESS, LOSS OF USE OR DATA, COST OF COVER, EXCESS REPROCUREMENT
COSTS, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT
MATTER HEREOF, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. WINEFETCH SHALL NOT BE
LIABLE FOR ANY CLAIMS RESULTING FROM THE FAILURE OF CUSTOMER TO PROTECT THE
PASSWORDS THAT PROVIDE ACCESS TO THE PRIVATE LABEL WEBSITE. IN ANY EVENT, THE LIABILITY OF
WINEFETCH UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT PAID BY
CUSTOMER TO WINEFETCH DURING THE PRIOR THREE MONTH PERIOD IN WHICH THE
LIABILITY ACCRUES. THIS LIMITATION
APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT
LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT
LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
14.
GENERAL
PROVISIONS.
14.1.
Governing Law and Dispute Resolution.
This Agreement will be governed and construed in accordance with the laws of the State of North Carolina without giving effect to principles of conflicts of laws. The exclusive venue for any dispute relating to the Agreement shall be Orange County, North Carolina, and Customer hereby waives any jurisdictional, venue or inconvenient forum objections thereto. WINEFETCH AND CUSTOMER EXPRESSLY WAIVE ANY RIGHT TO A JURY TRIAL. Prior to initiating any legal action, the initiating party shall give the other party sixty (60) days written notice of its intent to file an action. WineFetch will provide such notice by e-mail to Customer's e-mail address on file with WineFetch, and Customer must provide such notice by e-mail to disputeresolution@winefetch.com. During such notice period, the parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to the Agreement. Failing such amicable settlement and expiration of the notice period, any controversy, claim, or dispute arising under or relating to the Agreement, shall finally be settled in a court of competent jurisdiction as set forth herein.
14.2.
Further Assurances. Each party shall cooperate with the
other party, both during and after the Term, in the procurement and maintenance
of such other party's rights to intellectual property created hereunder.
14.3.
Severability; Waiver. If any provision of this Agreement is
held to be invalid or unenforceable for any reason, the remaining provisions
will continue in full force without being impaired or invalidated in any
way. The parties agree to replace
any invalid provision with a valid provision which most closely approximates
the intent and economic effect of the invalid provision. The waiver by either party of a breach
of any provision of this Agreement will not operate or be interpreted as a
waiver of any other or subsequent breach.
14.4.
Headings. Headings used in this Agreement are for
reference purposes only and in no way define, limit, construe or describe the
scope or extent of such section or in any way affect this Agreement.
14.5.
Assignment.
Customer may not assign its rights, delegate its duties, or subcontract its
rights, duties, and obligations without the prior written consent of WineFetch,
and any attempted assignment without such consent shall be void. The
parties' rights and obligations will bind and inure to the benefit of their
respective successors and permitted assigns.
14.6.
Independent
Contractors. The parties to
this Agreement are independent contractors, and no agency, partnership, joint
venture or employee-employer relationship is intended or created by this
Agreement. Neither party shall
have the power to obligate or bind the other party. In addition, there are no third party beneficiaries to this
Agreement.
14.7.
Notices. Notices to the parties shall be sent to
the addresses set forth on the signature page of this Agreement. Such notice shall be deemed given upon
delivery as evidenced by delivery record.
14.8.
Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original and all of
which shall be taken together and deemed to be one instrument.
14.9.
Order of Precedence. In the event of any conflict or
inconsistency between or among the terms and conditions of this Agreement or a
change order, the terms and conditions of this Agreement shall control unless
expressly provided otherwise in the relevant change order.
14.10.
Entire Agreement. This Agreement, sets forth the entire
understanding and agreement of the parties and supersedes and terminates any
and all oral or written agreements or understanding between the parties as to
the subject matter of this Agreement.
This Agreement may be modified or amended only by a writing signed by
both parties. Neither party is
relying upon any warranties, representations, assurances or inducements not
expressly set forth herein.
14.11.
Press Release. WineFetch may issue a press release on
or after the Effective Date which describes the Ongoing Services and which
shall indicate that Customer has licensed the Private Label Website.
14.12.
Marketing Website. Customer hereby grants WineFetch
permission to include Customer's name and logo and a screenshot of Customer's
public site on WineFetch's website.