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 Denver, Colorado.
1.2. “Business Hours” shall mean between 8:00 a.m. and 4:00 p.m. MT 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 TippleShops 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 TippleShops from time to time. The initial Domain Name is not 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 TippleShops in consideration for the Ongoing Services.
1.10. “Private Label Website” shall mean the version of the TippleShops 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. “TippleShops System” shall mean TippleShops’ 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, TippleShops shall provide to Customer the Ongoing Services described herein, in accordance with the terms and conditions of this Agreement.
2.1. Hosting Services. TippleShops 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 TippleShops 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 TippleShops’s reasonable control.
2.2. Maintenance Services. TippleShops 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 TippleShops, in a timely fashion, with all information reasonably required for the performance of the Ongoing Services by TippleShops hereunder, including inventory and pricing data and Customer Content; (b) cooperate fully with TippleShops to enable TippleShops to provide the Ongoing Services; and (c) permit TippleShops to include in the Private Label Website the TippleShops logo, including the statement “Powered by” ” followed by the TippleShops logo.
4. LICENSE GRANT.
4.1. License Grant by TippleShops. Subject to the terms and conditions of this Agreement and Customer’s compliance with its obligations hereunder, TippleShops 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 TippleShops, 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 TippleShops and Customer. Customer may not use the Private Label Website except pursuant to the limited rights expressly granted herein, and TippleShops 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 TippleShops 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 TippleShops’ website and (b) the Purchase Data (i) for TippleShops’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 TippleShops 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 TippleShops licenses from third parties), including the TippleShops System and any other developments, derivative works or enhancements made pursuant to this Agreement or otherwise and any materials provided by TippleShops to Customer. To the extent, if any, that ownership of the Private Label Website does not automatically vest in TippleShops by virtue of this Agreement or otherwise, Customer hereby transfers and assigns to TippleShops 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 TippleShops 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 TippleShops’s discretion. In addition, Customer agrees to pay any attorney’s fees and/or collection costs incurred by TippleShops in collecting any past due amounts from Customer.
6.3. Expenses. Customer shall reimburse TippleShops for all reasonable expenses approved in advance by Customer and incurred by TippleShops 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 TippleShops invoices Customer for such taxes. This provision includes sales, use, excise and personal property taxes but does not include taxes based on TippleShops’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 60 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 TippleShops prior to expiration or termination of this Agreement.
c. TippleShops 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, TippleShops 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. TIPPLESHOPS REPRESENTATIONS AND WARRANTIES.
8.1. Services. TippleShops 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. TippleShops 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 TIPPLESHOPS 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 TippleShops’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 TippleShops; (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 TippleShops 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 TippleShops, 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 TippleShops’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 TippleShops, TippleShops 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. TIPPLESHOPS 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 TIPPLESHOPS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT PAID BY CUSTOMER TO TIPPLESHOPS 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. TIPPLESHOPS 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. TippleShops will provide such notice by e-mail to Customer’s e-mail address on file with TippleShops, and Customer must provide such notice by e-mail to disputeresolution@tippleshops.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 TippleShops, 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. TippleShops 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 TippleShops permission to include Customer’s name and logo and a screenshot of Customer’s public site on TippleShops’s website.
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