1 Service Agreement
1.1. Cloud-Based Services
Provider will develop, host, maintain, and make reasonable improvements to Provider’s cloud-based software Services offered to Users on a subscription basis, as set forth in the Services descriptions set forth on this site. User agrees that its purchases of Services are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Provider regarding future functionality or features.
2 Provider Responsibilities
2.1 Maintain Programs as Described and Offered.
Provider will maintain its proprietary software for the Services as described and offered through this website. Provider is under no obligation to maintain its software or User’s data and database generated by the software from User’s data, beyond the term of the subscription selected and paid for by User.
2.2 No Grant of License
Provider shall retain all rights, title and interest in and to the software programs used by Provider’s cloud-based system to offer the Services. User is granted the right to access User’s unique database maintained by Provider and generated by Provider’s software using the unique and secure access information generated by Provider for User.
User has no right, claim or interest in or to Provider’s proprietary programs, source code and applications arising from User’s subscription to Services.
2.3 Hosting and Maintenance
Provider will provide hosting and Software Maintenance for its proprietary programs and software used to provide the Services for the duration of this Agreement. User shall be provided notice of Provider’s intent to delete User’s rights to access the User’s database and/or the Services not less than 10 days prior to the deletion of the User’s account for access, upon the expiration of User’s subscription or failure to pay for the Services, or upon Provider’s election to discontinue the Services.
2.4 Free Trial
If User registers on Provider’s website for a free trial, Provider will make the applicable Services available to User on a trial basis free of charge for the free trial period expressed on the website. Additional terms and conditions may appear on the trial registration page and any such terms and conditions are incorporated into this Agreement.
ANY DATA ENTERED BY THE USER DURING A FREE TRIAL WILL BE PERMANENTLY LOST UNLESS USER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE PROVIDED IN THE TRIAL SELECTED, PURCHASES UPGRADED SERVICES OR EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD. IF USER ELECTS TO PURCHASE DOWNGRADED SERVICES FROM THOSE IN THE FREE TRIAL, USER MUST EXPORT ITS DATA PRIOR TO THE EXPIRATION OF THE TRIAL PERIOD OR THE DATA MAY BE PERMANENTLY LOST.
3 User Responsibilities
3.1 User’s compliance with Agreement.
User is responsible for User’s compliance with this Agreement, the accuracy, quality and legality of User’s data, the means by which User acquired the data, User’s use of User’s data with the Services and to use commercially reasonable efforts to prevent unauthorized access to or use of the Services. Any use of the Services in breach of the foregoing by User or allowed by User which, In Provider’s opinion threatens the security, integrity or availability of Provider’s services may result in the immediate suspension of User’s access to and use of the Services.
3.2 Subscription Fees.
Upon User’s selection of Services as described in the website, including the term of subscription and the specific Services to be provided, User shall pay the indicated Subscription fee. The Subscription Fee shall be applicable to the Services and term and shall include hosting of User’s database as generated by the software applications.
3.3 Fee Payment
Fees for one-year subscriptions to the Services are due upon selection of the Services to be provided, and Services for such term will not be provided until the total fee therefore is paid by User.
If User selects a term for less than one year for Provider’s Services (i.e. a monthly subscription), User shall pay the fee associated with the next term within five days of the expiration of the prior period).
User agrees that interest shall accrue on any invoice that remains unpaid for 30 days after invoice date at the rate of 10 percent per annum. Failure to make timely payment shall constitute a material breach of this Agreement and may result in the immediate suspension of User’s access to the Services and database.
3.4 Accurate Records
User shall upload and enter master data and transactional data required for the Services. Provider shall not be responsible for the accuracy or completeness of such records or for results generated by inaccurate or incomplete data provided by User.
3.5 Usage Restrictions.
User will not (a) make any Services available to anyone other than User or its authorized employees and agents, subject to the number of individual users indicated by User in subscribing to the Services; (b) sell, resell, license, sublicense, distribute, rent or lease any Service; (c) use a Service to store or transmit infringing, libelous or other unlawful or tortious material or to store or transmit material in violation of third party rights; (d) interfere with or disrupt the performance of the Services; (e) attempt to gain unauthorized access to any Service, its underlying software or source code(s); or (f) except as permitted by applicable law, disassemble, reverse engineer or decompile a Service or the underlying software.
4 Agreement Term
This Agreement shall commence effective immediately upon purchase of the Services and shall continue for a period of one year or such other term as selected by User when registering and paying for the Services. This Agreement will renew automatically for additional one-year term. Such renewals will take place immediately upon conclusion of the prior contract period unless either Party provides written notice of its intention to not renew not less than 30 days prior to the end of the existing Agreement term. Renewal terms shall be subject to Provider’s then-current subscription charges for any renewal term.
5 Termination
5.1 Termination
If at any time during the term of this Agreement or any renewal thereof, either party: a) fails to make payment when due; b) materially defaults in its performance of any of the terms and conditions of this Agreement and fails to cure such default within five (5) days written notice, or; c) is adjudged bankrupt, makes an assignment of assets for the benefit of its creditors, has a receiver appointed for it, is adjudged insolvent, ceases operations or is dissolved, then the other party shall have the right to terminate this Agreement immediately by written notice to the other party. In addition, either Party shall have the right to terminate this Agreement on thirty (30) days’ notice at any time commencing twelve months after initial execution of this Agreement.
5.2 Survival
Sections 6, 7, 8, 9, and 10 (excepting Section 10.1) will survive termination of this Agreement for any reason. Furthermore, User and Provider agree that termination of this Agreement for any reason shall not affect amounts already owing from User to Provider for any reason.
6 Ownership and Use
Provider shall retain all right, title, and interest in all work product, software code, and all other intellectual property related to the Services created by Provider to offer Services pursuant to this Agreement including all software and software code (“Software”). User shall have no right, title, or interest in the Software and nothing herein shall be construed as granting or conferring any other rights in the Software. User acknowledges and agrees that, as between User and Provider, the Software and all related copyrights, trademarks, and other intellectual property rights are, and at all times will be, the property of Provider. The Parties further agree that this Agreement conveys no rights to User to sell, reverse engineer, decompile, license, distribute, or otherwise exploit the Software.
7 Confidential Information
7.1 User Confidential Information
Producer agrees not to disseminate, either during the term of this Agreement or afterwards, any confidential information or trade secrets regarding User’s business, products, customers, business plan, techniques, or methods of operation, including, without limitation, any sales data, projections or other business information (collectively, “User Confidential Information”), and shall use such information solely for the purpose of providing the Services under this Agreement.
Upon the termination of this Agreement for any reason, Provider shall immediately destroy or return all User Confidential Information. User Confidential Information shall remain the sole property of User.
7.2 Provider Confidential Information
User agrees not to disseminate, either during the term of this Agreement or afterwards, any confidential information or trade secrets regarding Provider’s technologies, computer code, methodologies, techniques, or methods of operation (collectively, “Provider Confidential Information”).
Upon the termination of this Agreement for any reason, User shall immediately destroy or return all Provider Confidential Information. Provider Confidential Information shall remain the sole property of Provider.
8 Indemnification
8.1 Indemnity
Each Party will, at its sole expense, indemnify, defend and hold the other Party and each of its respective directors, officers, and employees harmless from any and all claims, suits, actions, damages, settlements, losses, liabilities, penalties, fines, costs and expenses, including without limitation, reasonable attorneys’ fees, arising out of or in connection with: a) the gross negligence or intentional misconduct of the other Party or any of its personnel or subcontractors, or; b) the other Party’s material breach of this Agreement.
8.2 Indemnity Rights
The Indemnifying Party shall defend and settle at its sole expense all suits or proceedings arising out of the foregoing. Any failure or delay by either Party to exercise any right, power or privilege hereunder or to insist upon observance or performance by the other of the provisions of this License Agreement shall not operate or be construed as a waiver thereof.
9 Limitation of Liability
9.1 Limitation of Liability
Except for breach of sections 6 and 7 of this Agreement and the indemnification obligations under section 8 of this Agreement, in no event shall either party, its affiliates, or their respective directors, officers, agents or employees, be liable to the other party for any reason, whether in contract or in tort, for any direct damages arising out of or based upon this Agreement exceeding the total of fees paid or due to be paid by User to Provider in the prior twelve months, regardless of the form in which any legal or equitable action may be brought.
9.2 No Consequential Damages
Except for breach of sections 6 and 7 of this Agreement and the indemnification obligations under section 8 of this Agreement, Provider and User agree that exemplary, punitive, indirect, special, lost profits, consequential or similar damages are precluded and neither shall recover any such damages under any theory of tort, contract, strict liability or other legal or equitable theory. The parties agree that exemplary, punitive, indirect, special, lost profits, consequential or similar damages are hereby excluded regardless of whether or not such party has been advised of the possibility of such damages.
10 Representations and Warranties
10.1 Representations.
Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
10.2 Provider Warranties.
Provider warrants that during an applicable subscription term: (a) this Agreement, the description contained on the website for the particular Services selected and purchased by User, do and will will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of User’s Data; (b) Provider will not materially decrease the overall security of the
Services, (c) the Services will perform materially in accordance with the applicable description contained in the website; and (d) Provider will not materially decrease the overall functionality of the Software or Services. For any breach of a warranty above, Customer’s exclusive remedies are those described for the termination of the Services as set forth herein.
10.3 Disclaimers.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY
DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SERVICES PROVIDED FREE OF CHARGE and CONTENT ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
11 General Terms
11.1 Downtime
The Parties agree that a desired goal is for the data servers for the Planning Tool to be online at all times. The Parties, however, acknowledge that there will be downtime for administration, maintenance, security patches, and software upgrades. When possible, this work will be scheduled to take place on weekends and evenings.
User acknowledges that cloud-based computer software is subject to downtime and will occasionally require maintenance, bug fixes, and other ongoing development to remain operational. Provider and User acknowledge and further agree that the performance of the Services will also rely upon components outside Provider’s control including but not limited to Internet outage, Internet bandwidth and delays, server outages, and User hardware. The Parties agree Provider shall not be responsible for any losses, injuries, costs, or damages resulting from downtime caused by components outside Provider’s control. The Parties further agree and acknowledge that Provider shall not be responsible for performance delays and/or service interruptions caused by components outside Provider’s control.
Provider shall promptly notify User of any outage. Provider agrees to take prompt action to restore any such outage as soon as commercially reasonable, during normal business hours (M-F 9 am-5 pm Pacific Time). Injunctive Relief
The Parties acknowledge that breach of Sections 6 or 7 of this Agreement will result in injury to the injured Party for which monetary damages cannot adequately compensate. The Parties, therefore, agree that, in addition to any other remedy available to it, the injured Party shall be entitled to seek both temporary and permanent injunctive relief for a breach or threatened breach of Section 6 and 7 of this Agreement.
11.2 Honesty
Provider and User agree to conduct themselves in a professional and ethical manner and treat one another with the highest standards of honesty and integrity; to complying with all local, state, federal and international laws, rules and regulations affecting its business.
11.3 No Waiver
The waiver by either Party of a breach of or a default under any provision of this Agreement, shall not be construed as a waiver of any subsequent breach of the same or any other provision of the Agreement, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that It has or may have hereunder operate as a waiver of any other right or remedy.
11.4 Notices
All notices given under this Agreement shall be in writing and sent to an appropriate representative of the recipient at its principal place of business. Notices will be effective one business day after sending if by electronic email (to the addresses designated below) or certified mail, or immediately upon receipt if by personal delivery. Notice of non-payment may be served via email. Any party may change its address for purposes of this paragraph by giving the other parties written notice of the new address or contact individual.
11.5 Third-Party Beneficiaries
Nothing contained in this Agreement is intended to confer nor shall confer upon any person (other than the parties hereto and their permitted assigns) any rights, benefits or remedies of any kind or character whatsoever, and no such person shall be deemed a third-party beneficiary under or by reason of this Agreement.
11.6 Governing Law and Venue
This Agreement will be governed by the laws of the State of California applicable to contracts executed and to be performed entirely in the State of California. Venue for any dispute arising from or relating to this Agreement shall lie solely and exclusively in the Courts, State or Federal, in or for the County of Napa, California.
11.7 Attorney Fees
In the event any dispute arising out of or relating to this Agreement, including, without limitation, any legal action to enforce or interpret this Agreement, the prevailing party shall be entitled to recover all reasonable costs and expenses, including reasonable attorneys’ fees Incurred in connection with the action or proceeding. For the purposes of this provision, “attorneys’ fees” shall include reasonable attorneys’ fees, reasonable paralegal fees, expert witness fees, copy and delivery costs, and other costs and expenses whether or not such costs and expenses constitute “costs” under California law.
11.8 Force Majeure
If either Party is prevented from performing any portion of the Agreement (except the payment of money) by causes beyond its control, including, without limitation, labor disputes, Internet outage, hardware failure, denial-of-service attacks, civil commotion, war, earthquake, fire, pandemic, governmental regulations or controls, casualty, inability to obtain materials or services or acts of God, such defaulting Party will be excused from performance for the period of the delay and for a reasonable time thereafter.
11.9 Authority to Contract
Each party, and each individual executing this Agreement on behalf of a party, warrants that (1) the company executing this Agreement has obtained all corporate authorizations and approvals necessary to enter into this Agreement, (2) this Agreement is a binding and legal obligation of the company involved, and (3) the person executing this Agreement on behalf of each company is fully authorized to execute and deliver this Agreement on behalf of the company for whom he or she is executing this Agreement.
11.10 Independent Contractor
In performing Services under this Agreement, Provider will be acting as an independent contractor and not as an employee, or partner. Provider (and not User) shall be solely responsible for the management and performance of its personnel and for all salaries and benefits of such personnel including but not limited to workers compensation, health insurance, and other benefits offered by Provider to its employees.
11.11 Partial Invalidity
If any provision of this Agreement is held to be illegal, invalid or unenforceable, such provision will be fully severable and this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision never comprised a part hereof; and the remaining provisions hereof will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as part of this Agreement, a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable
11.12 Successors and Assigns
The rights and obligations of each party under this Agreement will be binding upon and inure to the benefit of its successors and assigns. However, neither party may assign its rights or delegate its obligations under this agreement except in connection with a sale or transfer of all or substantially all of its business assets (whether by sale of stock or assets or merger or other business combination). The assigning party shall notify the other in writing prior to consummation of any such transaction.
11.13 Marketing
User agrees that Provider may use User’s name and may refer to the business relationship with User for the purpose of promoting the Provider’s business.
11.14 Taxes
User agrees to pay and be responsible for all sales taxes, use taxes, or other taxes or governmental fees which Provider pays or becomes liable to pay or collect as a result of the goods or services provided to User hereunder. Provider (and not User) shall have the sole obligation to pay income taxes that apply to the payments made by User to Provider in exchange for goods or services rendered under this Agreement.
11.15 Multiple Originals
This Agreement may be executed in two counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
11.16 Paragraph Captions
The headings and paragraph captions used in this Agreement are intended solely for the convenience and reference of the Parties and shall not in any way amplify, limit, or modify any of the provisions of the Agreement.
11.17 Severability
If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such provision shall be excluded from this Agreement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded and (c) the balance of the Agreement shall be enforceable in accordance with its terms.
11.18 No Employee Solicitation
Throughout this Agreement and for a period of 12 months following termination of this Agreement for any reason, Customer agrees not to solicit, hire, or contract with any Provider employee. It is acknowledged that in the event of such a violation, it will be impracticable or extremely difficult to calculate the actual damages to Provider and, therefore, the parties agree that upon a breach, in addition to whatever rights and remedies available at law and equity, Customer will pay Provider liquidated damages, and not as a penalty, the sum of $100,000.
11.19 Warranty of Comprehension
The Parties warrant and acknowledges that they have been represented by independent legal counsel of their own choice throughout all of the negotiations which preceded the execution of this Agreement, and that they have executed this Agreement upon the advice of their independent legal counsel. The Parties affirms that they have read this Agreement and understand the terms and meaning of this Agreement, and assent to all the terms and conditions contained herein without any reservation whatsoever.
11.20 Non-Disparagement
During the Term of this Agreement and thereafter, the Parties agree to take no action which is intended, or would reasonably be expected, to harm the other Party or its reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity to the Party.
11.21 Dispute Resolution
In the event of any dispute or controversy between the Parties to the Agreement, the Parties shall try to resolve the dispute in a fair and reasonable way. The Parties must escalate a dispute by providing written notice to the other and shall first attempt to resolve such dispute or controversy through one senior management member of each party. If the Parties’ senior management members are unable to resolve such dispute or controversy within thirty (30) days after the complaining Party’s written notice to the other Party of such dispute or controversy, then either Party must, by written notice to the other Party, request non-binding mediation to be conducted in Napa County, California. Each party shall bear its own expenses in connection with the mediation, and the parties shall split the fees and expenses of the mediator. All such non-binding mediation proceedings and negotiations shall be confidential and shall be treated as compromise and settlement negotiations for purposes of the applicable rules of evidence. If any Party fails to act in good faith or attend the Mediation, that Party’s right to recover attorney fees in any ensuing litigation pursuant to Section 10.8 shall be terminated.
11.22 Entire Agreement
This Agreement contains the entire understanding between the parties with regard to the subject matter hereof, and all prior agreements between the Parties, if any, are superseded. Any changes to this Agreement must be made in writing and signed by both parties.