PLATFORM LICENSE AGREEMENT
BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THESE PLATFORM LICENSE AGREEMENT TERMS AND CONDITIONS (THIS “AGREEMENT”) OR BY EXECUTING AN ORDERING DOCUMENT THAT REFERENCES THIS AGREEMENT OR BY OTHERWISE USING OR ACCESSING THE STORR PLATFORM (AS DEFINED BELOW) (THE “ACCEPTANCE”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE STORR PLATFORM.
This Agreement, by and between Customer and Storr, Inc., (“Storr”), is effective as of the date of Acceptance (the “Effective Date”), and governs Customer’s use of Storr’s software-as-a-service platform that permits the digital marketing and acceptance of orders for products and goods by end users of the service, including any software, documentation or data related thereto (the “Storr Platform”). Each of Storr and Customer may be referred to herein individually as a “Party” or collectively as “Parties”.
- Definitions. The following terms, when used in this Agreement will have the following meanings:
“Active Users” means each Authorized User with one or more sessions (i) to such Authorized User’s mobile application for the Storr Platform or (ii) to such Authorized User’s web storefront by such Authorized User or any End Customer, in each case, during the applicable month.
“Customer Content” means (a) all information, data, content, photographs, graphs, videos, typefaces, graphics, music, sounds and other materials provided by or on behalf of Customer to Storr with respect to Customer, the Customer Marks and the Products, (b) all Product information, including Product types, names, images, descriptions, sizes, inventory, current retail prices, artwork, text, logos, graphics and other relevant Product information reasonably requested by Storr, (c) information relating to the Product, including taxes, delivery/shipping terms, costs and options and codes, and (d) any other content related to the Products that Customer determinates in its sole discretion to make available to Storr.
“Customer Data” means all information and other data of Customer, Authorized Users and/or End Customers collected and managed via the Storr Platform pursuant to, and as contemplated by, this Agreement, including any information and other data submitted by Customer, Authorized Users and/or End Customers in connection with such users’ use of the Storr Platform hereunder (e.g., name, address, phone number, email address, shipping address, Order details, payment information, activity and behavior on the Storr Platform, and the nature, type and quantity of the Products purchased, marketed, promoted, advertised or sold on or through the Storr Platform hereunder).
“Confidential Information” means, subject to the exceptions set forth in the following sentence, any information, knowledge or data, regardless of whether it is in tangible form, disclosed by or on behalf of either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”). Storr’s Confidential Information includes the Storr Platform and the terms of this Agreement. Customer’s Confidential Information includes the Customer Data, but not the Anonymous Data or Aggregate Data. Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party.
“Proprietary Rights” means any and all right title and interest in or to copyrights, mask works, moral rights, industrial designs, trademarks, service marks, trade names, trade secrets, patents, publicity, and any other rights to intellectual property, recognized in any jurisdiction or country of the world, whether or not registered or perfected.
- Access to Storr Platform.
- Access Grant. Subject to the terms and conditions of this Agreement, Storr hereby grants to Customer, a non-exclusive, non-transferable, non-sublicensable right to access and use the Storr Platform, solely for the marketing and sale of Customer’s goods and products that Customer has made available for purchase on or through the Storr Platform (the “Products”).
- Authorized Users. With respect to Customer, the Storr Platform will be accessed or used only by employees or contractors of Customer who are authorized to access the Storr Platform using a user identifier and password provided to Customer by Storr or setup by Customer (“Authorized Users”). Customer will be responsible for Authorized Users’ compliance with this Agreement and for maintaining the confidentiality of all secure login information, passwords and other information related to its and its Authorized Users’ respective accounts at all times. Customer may add or remove Authorized Users at its discretion from time to time.
- End Customers. Customer may permit its customers and end users (“End Customers”) to access and use the Storr Platform solely for purposes of researching Products and placing an order for Products made by an End Customer on or through the Storr Platform (an “Order”). For clarity, Customer will be the merchant of record for each Product purchased pursuant to an Order and the purchase of such Product will be a transaction between Customer and the applicable End Customer. Storr does not execute or fulfill Orders.
- License Restrictions. Customer will (i) not make available the Storr Platform to any third party, other than Authorized Users and End Customers, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Storr Platform and, (iii) notify Storr promptly of any such unauthorized access or use. Except as expressly permitted hereunder, Customer will not and Customer will not permit or authorize Authorized Users, End Customers, or any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of any of the Storr Technology; (b) modify, translate or create derivative works of the Storr Platform and all intellectual property rights therein and thereto; (c) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on any of the Storr Technology; (d) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to any of the Storr Technology or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; (e) remove or obscure any proprietary notices or labels of Storr; (f) use the Storr Technology or any information contained therein or otherwise provided by Storr or its licensors for the purposes of developing, or having developed, any products or services competitive with the Storr Technology; or (g) otherwise access or use the Storr Technology in a manner inconsistent with this Agreement or applicable law.
- API License. Subject to the terms and conditions of this Agreement, Customer hereby grants to Storr, during the Term, a worldwide, non-exclusive, royalty-free, non-transferrable (except as expressly provided herein), non-sublicensable right and license to access and use Customer’s application programming interface and all Product data feeds and related materials to enable the Products and Customer Content to interoperate with, and be displayed on, the Storr Platform (the “Product Information Channel”), and to facilitate the transfer of Order information.
- Feedback. Customer may elect from time to time to provide suggestions or comments regarding enhancements or functionality or other feedback (“Feedback”) to Storr with respect to the Storr Technology. Storr will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants Storr a royalty-free, fully paid-up, worldwide, transferable, sublicensable (directly and indirectly through multiple tiers of distribution), perpetual, irrevocable license to (a) copy, distribute, transmit, display, perform, and modify and create derivative works of the Feedback, in whole or in part; and (b) use the Feedback and/or any subject matter thereof, in whole or in part, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which incorporate, practice or embody, or are configured for use in practicing, the Feedback, in whole or in part. For clarity, the foregoing does not grant Storr a license to any patents, trademarks or copyrights owned by Customer.
- Trial Period. Storr will provide Customer with access to the Storr Platform on a trial or evaluation basis for a period of thirty (30) days (the “Trial Period”). NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, WITH RESPECT TO THE TRIAL PERIOD, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE STORR PLATFORM IS PROVIDED TO THE CUSTOMER AS-IS WITHOUT ANY WARRANTIES OR GUARANTEES, WHETHER EXPRESS OR IMPLIED. ACCORDINGLY, ANY USE OF THE STORR PLATFORM DURING THE TRIAL PERIOD IS AT CUSTOMER’S SOLE RISK NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN.
- Ownership; Reservation of Rights.
- Customer Data. As between Customer and Storr, Customer owns the Customer Data. Customer hereby grants to Storr a non-exclusive, worldwide, royalty-free, fully paid-up, non-sublicensable (except to Storr’s contractors, consultants and service providers as reasonably necessary to provide the Storr Platform), right and license to copy, distribute, display and create derivative works of and use the Customer Data to perform Storr’s obligations under this Agreement. Customer also hereby grants to Storr a non-exclusive, worldwide, perpetual, royalty-free, fully paid-up, and irrevocable license to copy, anonymize, process and create derivative works of Customer Data, in whole or in part, for the purpose of deriving anonymous statistical and usage data, and other similar data related to the functionality and performance of Storr’s products and services, provided such data cannot be used to identify Customer, its Authorized Users or its End Customers (“Anonymous Data”) and combine or incorporate such Anonymous Data with or into other similar data and information available, derived or obtained from other customers, licensees, users, or other sources (when so combined or incorporated, referred to as “Aggregate Data”), in each case, solely for purposes of improving Storr’s existing products and services, developing new Storr products and services and for marketing purposes (e.g., indicating the number of customers using Storr products and services). For clarity, Anonymous Data and Aggregate Data is not Customer Data.
- Customer Marks and Customer Content. Subject to the terms and conditions of this Agreement, Customer hereby grants to Storr, during the Term, a worldwide, non-exclusive, royalty-free, non-transferrable (except as expressly provided herein) right and license to (a) copy, use, display, distribute, modify and create derivative works of the trademarks, service marks, logos and other distinctive brand features of Customer and/or the Products as designated by Customer (the “Customer Marks”) on the Storr Platform; (b) identify, feature, market, promote, advertise and sell the Products on the Storr Platform; and (c) use, copy, modify the weight, size, shape and color of, display, reproduce, translate, distribute, and make available, the Customer Marks, Customer Content (and links thereto) in order to identify, feature, market, promote, advertise and sell the Products and the Customer Content and otherwise perform its obligations under this Agreement.
- Reservation of Rights. Customer acknowledges and agrees that, as between the Parties, Storr retains all right, title and interest in and to the Storr Platform and all intellectual property rights therein and thereto. Storr grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Storr Platform. Customer will acquire no right, title, or interest in and to the Storr Platform other than the limited licensed rights expressly granted under this Agreement. Other than the rights and licenses granted under this Agreement, Customer reserves any and all right, title and interest in and to the Customer Marks, Customer Content, the Products, and all Proprietary Rights and goodwill therein or arising therefrom (collectively, “Customer Intellectual Property”), and Customer Data.
- Customer Obligations.
- Customer Content; Product Pricing. Customer will provide Storr with (or provide Storr with access to) the Customer Content and any changes or updates thereto, including but not limited to the product and pricing information for the Products. Customer will have the right to remove Products and Customer Content from the Product Information Channel at any time in Customer’s sole discretion. Customer shall be responsible for ensuring that all Customer Content provided to Storr for use in connection with the Storr Platform is complete, accurate and up to date.
- Order Fulfillment. Customer will be the merchant of record for each Product purchased pursuant to an Order and the purchase of such Product will be a transaction between Customer and the applicable End Customer. Storr does not execute or fulfill Orders; Storr operates as an online marketplace that connects Customers with their End Customers who wish to execute and Order for the purchase of Products. Customer will be responsible for processing and fulfilling all Orders, including shipping the Products purchased in such Orders, handling all payments (whether directly or through a third party payment processor), and providing all customer service and support in connection with such Orders and Products. Customer will ship and deliver the Products purchased in an Order to the applicable End Customer within the time period specified in such Order, or, if no such time is specified, within a commercially reasonable amount of time after such Order was placed. Customer will comply with all laws, rules, and regulations applicable to the sale and shipment of Orders and the Products. CUSTOMER ACKNOWLEDGES AND AGREES THAT STORR EXPRESSLY DISCLAIMS (TO THE EXTENT PERMITTED BY LAW) ANY RESPONSIBILITY AND LIABILITY WITH RESPECT TO ORDERS.
- Returns and Refunds; End Customer Disputes. Customer will be solely responsible and liable for all Orders, including (a) any returns, repairs or replacements of, and refunds for, any Product purchased pursuant to an Order (including any costs related thereto) and (b) any disputes with End Customers regarding any Order or Product. Storr will notify Customer about any communications Storr receives from End Customers regarding their Order or Products and will have no further responsibility and accepts no liability with respect to such End Customers.
- Storr Obligations.
- Storr Platform. Storr will use commercially reasonable efforts to provide the Storr Platform in a manner that minimizes errors and interruptions in accessing the Storr Platform. Storr will be solely responsible for operating, updating and maintaining the Storr Platform. Storr will have sole and absolute control over the Storr Platform and any content displayed thereon. Storr will have no obligation to feature, market, advertise or sell any Products, or display any Customer Content, on the Storr Platform.
- Third Party Content. Storr will not have any responsibility or liability to Customer for the conduct or content of any Authorized User or End Customer on the Storr Platform or otherwise, including any defamatory, offensive or negative content or reviews regarding or related to Customer or the Products. If reasonably requested by Customer, Storr shall remove any third party content from the Storr Platform.
- Payment Terms.
- Customer Fees. Customer shall pay to Storr, in the applicable month, a fee for all qualified Clicks on Customer’s Product Information Channel, as recorded by Storr’s Click tracking systems (the “Customer Per-Click Fee”). For purposes of this Agreement, “Click” means the action where Customer Content on the Customer’s Product Information Channel is clicked by an End Customer. All payments to Storr under this Agreement will be made in U.S. Dollars. The Customer Per-Click Fee will be charged to Customer at the end of the applicable month, in accordance with the terms of this Agreement. Customer Per-Click Fees will be paid from the Customer Fee Account Balance (as defined below). All Customer Per-Click Fees are non-cancelable and non-refundable, regardless of any early termination of this Agreement. Storr reserves the right to change the Customer Per-Click Fees or applicable charges and to institute new charges and fees, upon forty-five (45) days prior notice to Customer (which may be sent by email). If Customer believes that Storr has billed Customer incorrectly, Customer must contact Storr no later than sixty (60) days after the date on the invoice in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Storr’s customer support department.
- End-Customer Fees. Customer may elect to pay End Customers, via the Storr Platform, a fee for all qualified Clicks on Customer’s Product Information Channel, as recorded by Storr’s Click tracking systems (the “End-Customer Per-Click Fee”). The Parties will mutually agree upon the value of Customer’s End-Customer Per-Click Fee for the applicable period. End-Customer Per-Click Fees will be paid from the Customer Fee Account Balance (as defined below). If the End-Customer Per-Click Fees paid or payable to End Customers exceeds the amount of Customer’s End-Customer Fee Account Balance, the remaining balance will be charged to Customer at the end of the applicable month, in accordance with the terms of this Agreement. Unless otherwise agreed by the Parties, the End-Customer Per-Click Fee will be made in U.S. Dollars. CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY END-CUSTOMER PER-CLICK FEES THAT ARE PAID OR PAYABLE TO END CUSTOMERS SHALL BE CUSTOMER’S SOLE LIABILITY. CUSTOMER AGREES TO INDEMNIFY STORR FROM ANY AND ALL CLAIMS, DAMAGES, LIABILITY, SETTLEMENT, ATTORNEYS’ FEES AND EXPENSES, AS INCURRED, ON ACCOUNT OF THE FOREGOING. Payment processing services for End-Customer Per-Click Fees are provided by Hyperwallet (a PayPal service) and are subject to the PayPal’s Commercial Entity Agreement, (available at https://www.hyperwallet.com/cea-bancorp/) (the “Hyperwallet Services Agreement”). STORR DOES NOT PROCESS PAYMENT TO END CUSTOMERS FOR END-CUSTOMER PER-CLICK FEES AND STORR ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY PAYMENT OF END-CUSTOMER PER-CLICK FEES USING HYPERWALLET’S PAYMENT PROCESSING SERVICES. By agreeing to this Agreement or continuing to operate as a Customer on the Storr Platform, Customer agrees to be bound by the Hyperwallet Services Agreement, as the same may be modified by PayPal from time to time. As a condition of Storr enabling payment processing services through Hyperwallet, Customer agrees to provide Storr accurate and complete information, and authorizes Storr to share transaction information related to Customer’s use of the payment processing services provided by Hyperwallet. Customer acknowledges and agrees that Customer shall be responsible for all fees (e.g., processing fees) included as part of Hyperwallet’s payment processing services.
- Customer Account Fee Balance. Upon the Effective Date, Customer shall be required to make a lump sum payment to Storr in the amount of the Minimum Balance (as defined below), and such funds will be used to pay the Customer Per-Click Fees and End-Customer Per-Click Fees (the “Customer Fee Account Balance”). Customer shall be required to maintain a minimum balance of five-hundred dollars (US $500) in the Customer Fee Account Balance (the “Minimum Balance”). If the Customer Fee Account Balance falls below the Minimum Balance, Customer hereby authorizes Storr to automatically charge Customer’s payment instrument in the amount of the Minimum Balance, in accordance with the terms and conditions of this Agreement. Any unused balance of the Customer Fee Account Balance will roll over to the next month. Upon Customer’s request following the expiration or termination of this Agreement, Storr shall provide a refund of any unused fees corresponding to the Customer Fee Account Balance. If Customer has not requested a return of the remaining Customer Fee Account Balance within twelve (12) months of the expiration or termination of this Agreement, the funds in the Customer Fee Account Balance shall be deemed abandoned, such funds will be remitted to the custody of Storr, and Storr will have no further liability to Customer with respect to such funds.
- Payment Terms. Customer will be required to provide Storr with information regarding Customer’s credit card or other payment instrument. Customer represents and warrants to Storr that such information is true and that Customer is authorized to use the payment instrument. Customer will promptly update Customer’s account information with any changes (for example, a change in billing address or credit card expiration date) that may occur. Customer hereby authorizes Storr to bill Customer’s payment instrument in accordance with the terms of this Agreement, until Customer terminates its account, and Customer further agrees to pay any charges so incurred. Customer will promptly update Customer’s account information with any changes (for example, a change in billing address or credit card expiration date) that may occur. If payment of any fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Customer will pay all reasonable expenses of collection. In addition, if any past due payment has not been received by Storr within thirty (30) days from the time such payment is due, Storr may suspend access to the Storr Platform until such payment is made.
- Taxes. All amounts payable by Customer to Storr hereunder are exclusive of any sales, use and other taxes or duties, however designated (“Taxes”). Customer will be solely and exclusively responsible for timely filing tax returns and paying all Taxes, including any that may be owed by Customer to any governmental taxing authority arising out of this Agreement, except for those Taxes based solely on the income of Storr. Customer will not withhold any Taxes from any amounts due Storr.
- Confidentiality; Data Security.
- Confidentiality. The Receiving Party hereby acknowledges and agrees that all the Disclosing Party’s Confidential Information will be the sole and exclusive property of the Disclosing Party. Each Receiving Party will use reasonable measures to protect the confidentiality of the Disclosing Party’s Confidential Information. During the Term and thereafter, the Receiving Party will: (a) not use the Confidential Information of the Disclosing Party except as permitted under this Agreement and (b) not disclose or otherwise make available such Confidential Information, directly or indirectly, to any third party, except as authorized herein and other than to such Party’s employees, independent contractors or professional advisers (e.g., attorneys and accountants) (collectively, “Representatives”) who (i) have a need to know such Confidential Information and (ii) are subject to written agreements containing (or, in the case of professional advisers, ethical obligations imposing) obligations of confidentiality and nonuse with respect to such information as stringent as those set forth herein. The Receiving Party will be responsible for any breach of the terms hereof by any of its Representatives. In the event that Receiving Party or any of its Representatives is requested or required by legal process to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will give prompt written notice to the Disclosing Party and the Disclosing Party may seek a protective order or other appropriate relief. In the event that such protective order is not obtained, the Receiving Party will disclose only that portion of such Confidential Information that its counsel advises that it is legally required to disclose. The Receiving Party acknowledges that any unauthorized disclosure or use of the Disclosing Party’s Confidential Information will constitute a material breach of this Agreement and cause substantial harm to the Disclosing Party for which damages would not be a fully adequate remedy, and, therefore, in the event of any such breach (or threatened breach), in addition to other available remedies, the Disclosing Party will have the right to obtain injunctive relief in any court of competent jurisdiction without the necessity of posting a bond.
- Data Security. Storr will, and will cause any of its subcontractors with access to Customer Data to, use commercially reasonable efforts to establish and maintain safeguards reasonably sufficient to prevent and guard against the unauthorized disclosure, destruction, loss, theft or alteration of Customer Data in the possession or control of Storr or a subcontractor that are no less rigorous than (i) standards maintained by Storr for its own information of a similar nature and (ii) accepted industry security standards.
- Personal Information. In order for Storr to fulfill its obligations under this Agreement, it may be necessary for Storr and its personnel to receive Personal Information (as defined below). Storr will comply with all applicable laws (including data privacy laws) in its handling of Personal Information, and, at Customer’s request, will take all actions reasonably necessary to enable Customer to comply with is obligations under applicable law, rule or regulation relating to rights requests made by individuals relating to Personal Information processed by Storr in accordance with applicable laws, including, but not limited to, the California Consumer Privacy Act (the “CCPA”). To the extent not prohibited by applicable law, Storr will use commercially reasonable efforts to comply with Customer’s instructions pertaining to the collection, use, disclosure and deletion of Personal Information and shall not use, store, process or disclose any Personal Information except as instructed by Customer and as provided for in this Agreement. As used in this Agreement, “Personal Information” means and includes any information that, alone or in combination with other information, can identify or be uniquely associated with a specific individual or household and is subject to applicable data privacy laws.
- Representations and Warranties; Disclaimer.
- Mutual. Each Party hereby represents, warrants and covenants to the other Party that (i) it has full right, power and authority to enter into this Agreement and to perform its obligations, and grant the rights and licenses granted, hereunder, (ii) the execution or performance of this Agreement will not conflict with any provision of any other agreement to which it is a party or by which it or any of its properties may be bound, and (iii) it will comply with all applicable laws, rules and regulations in the performance of its obligations under this Agreement.
- By Customer. Customer hereby represents and warrants to Storr that (i) the Customer Intellectual Property (and Storr’s permitted use thereof) does not infringe or misappropriate any third party’s rights (including any Proprietary Rights); and (ii) Customer has and will have the legal authority and all rights necessary (A) to provide the Customer Data to Storr and (B) for Storr to fulfill its obligations and exercise its rights with respect to the Customer Data as set forth this Agreement.
- Disclaimer. THE STORR PLATFORM IS PROVIDED ON AN “AS-IS” BASIS, AND STORR DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. STORR EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. STORR DOES NOT WARRANT THAT THE PRODUCTS OR SERVICES PROVIDED ARE ERROR-FREE OR THAT OPERATION OF STORR’S PRODUCTS OR SERVICES WILL BE SECURE OR UNINTERRUPTED.
- Customer Indemnification. Customer will indemnify, defend and hold harmless Storr and its affiliates and each of their respective officers, directors, managers, members, stockholders, employees, contractors, agents, successors and assigns from and against any and all losses, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of, or in any way related to, a third party claim, suit or proceeding (each, a “Claim”) arising from or relating to (a) Customer’s breach of any of its representations, warranties, covenants or obligations contained herein and/or (b) the Products (including any Orders, shipping loss or delay, damage, return, refund, product liability claim, recall or investigation or any alleged or actual Product defect).
- Storr Indemnification. Storr will indemnify, defend and hold harmless Customer and its affiliates and each of their respective officers, directors, managers, members, stockholders, employees, contractors, agents, successors and assigns from and against any and all Claims arising from or relating to a claim that the Storr Platform (or Customer’s permitted use thereof) infringes or misappropriates any third party’s rights (including any Proprietary Rights). Storr will have no liability or obligation under this Section with respect to any Claim to the extent such Claim arises from (a) modification of the Storr Platform in accordance with Customer’s specifications or instructions or by any party other than Storr; (b) the combination, operation, or use of the Storr Platform with other product(s), data or services where the Storr Platform would not by itself be infringing; (c) unauthorized or improper use of the Storr Platform; or (d) use during the Trial Period. If the use of the Storr Platform by Customer has become, or in Storr’s opinion is likely to become, the subject of any claim of infringement, Storr may at its option and expense (i) procure for Customer the right to continue using the Storr Platform as set forth hereunder; (ii) replace or modify the Storr Platform to make it non-infringing so long as the Storr Platform has at least equivalent functionality; (iii) substitute an equivalent for the Storr Platform; or (iv) if options (i)–(iii) are not reasonably practicable, terminate this Agreement. This Section states Storr’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
- Procedure. If a indemnified Party becomes aware of any Claim for which it believes it should be indemnified under this Section, such indemnified Party will (a) promptly notify the indemnifying Party in writing of such Claim; (b) promptly give the indemnifying Party the sole and exclusive right to control and direct the investigation, preparation, defense and settlement of such Claim with counsel of the indemnifying Party’s own choosing; provided that the indemnified Party entitled to indemnification under this Section will have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim; and (c) gives assistance and full cooperation for the defense of same. The indemnifying Party may not settle or compromise any Claim against an indemnified Party without the indemnified Party’s prior written consent.
- Limitation of Liability.
- Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND INCLUDING LOST BUSINESS OPPORTUNITY OR PROFITS, EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
- Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, UNDER NO CIRCUMSTANCES WILL STORR’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID AND PAYABLE BY CUSTOMER TO STORR UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING THE DATE OF THE CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THE PRECEDING SENTENCE EXCLUDES EITHER PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, BREACH OF THE LICENSE RESTRICTIONS, CONFIDENTIALITY OBLIGATIONS, OR INDEMNIFICATION OBLIGATIONS.
- Exclusions. THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- Term and Termination.
- Term. Subject to earlier termination as set forth below, the term of this Agreement will commence on the Effective Date and continue for one (1) year, and shall automatically renew for additional one (1) year periods (collectively, the “Term”).
- Termination for Convenience. After the Trial Period, each Party may terminate this Agreement at any time and for any or no reason upon thirty (30) days’ prior written notice to the other Party.
- Termination for Cause. Either Party may terminate this Agreement immediately upon written notice to the other Party in the event of any of the following: (a) the other Party is in material breach of this Agreement and such breach is not cured within thirty (30) days following the non-breaching Party’s written notice thereof; or (b) the other Party becomes insolvent or seeks protection under any bankruptcy, receivership, trust, deed, creditor’s arrangement, or comparable proceeding, or if any such proceeding is instituted against such other Party and not dismissed within one hundred eighty (180) days.
- Effects of Termination. Upon the expiration or termination of this Agreement, (a) all licenses granted hereunder will immediately terminate and each Party will promptly return or destroy all of the other Party’s Confidential Information in its possession; (b) Customer will promptly (i) process and fulfill all outstanding Orders that were placed by End Customers prior to the effective date of such expiration or termination and (ii) complete any pending returns or refunds of Products purchased pursuant to an Order; (c) any outstanding Customer Per-Click Fees, End-Customer Per-Click Fees, or any other fees owed by Customer to Storr or End Customers for the month of termination will immediately become due and payable.
- Survival. Sections 1, 2(d), 2(f), 2(g), 3(a), 3(c), 4, 6, 7, 8, 9, 10, 11, and 12 will survive any expiration or termination of this Agreement.
- Assignment. This Agreement may not be assigned by either Party to any other party without the express written consent of the other Party, and any assignment in violation of this Section will be null and void. Notwithstanding the foregoing, either Party may assign this Agreement without such consent to any third party that acquires all or substantially all of such Party’s equity interests or assets to which this Agreement relates, whether by way of purchase, merger, exchange or similar transaction; provided, that such assignee assumes the assigning Party’s obligations and liabilities hereunder.
- Remedies; No Waiver. All rights, remedies, obligations, covenants, conditions and agreements contained in this Agreement or provided by law will be cumulative and no one of them will be exclusive of any other. No waiver by any Party, whether express or implied, of any provision of this Agreement, or of any breach or default thereof, will constitute a continuing waiver of that provision or of any other provision.
- Entire Agreement; Amendment. This Agreement contains the entire understanding and agreement between the Parties with respect to its subject matter and supersedes all prior and contemporaneous oral or written understandings and agreements relating thereto. Except as otherwise expressly set forth herein, no modification, amendment or waiver of any of the terms of this Agreement will be valid unless in writing and signed by an authorized representative of each Party.
- Governing Law, Jurisdiction. This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each Party submits to the exclusive jurisdiction of the state and federal courts located in San Francisco, California, and waives any jurisdictional, venue, or inconvenient forum objections to such courts. .
- Notices. All reports, approvals, requests, demands, notices and other communications required or permitted by this Agreement will be given in writing, addressed as a Party may specify by notice in writing to the other, and will either be (a) personally delivered, (b) transmitted by postage prepaid certified mail, return receipt requested, or (c) transmitted by nationally recognized private express courier, and will be deemed to have been given on the date of receipt if delivered personally, three (3) days after deposit in mail if delivered by mail, or on the date of receipt if delivered by express courier.
- Relationship of the Parties. Nothing in this Agreement will be construed to place the Parties in an agency, employment, franchise, joint venture, or partnership relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties. Neither Party will represent to the contrary, either expressly, implicitly or otherwise.
- Severability. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and the other provisions of this Agreement will remain in full force and effect.
- Third-Party Beneficiaries. This Agreement does not confer any third-party beneficiary rights upon any third party, except as expressly set forth herein.
- Force Majeure. Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a Party’s financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the Parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either Party may terminate this Agreement by giving written notice thereof to the other Party. Upon the occurrence of any Force Majeure Event, the affected Party will give the other Party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform.
- Headings; Interpretation. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. All uses in this Agreement of “including” and similar terms will be interpreted to mean “including without limitation.”
- Public Announcement. Neither Party will make any separate public announcement regarding this Agreement or any of the contents contained herein without the prior written consent of the other Party.
- Compliance with Laws. Customer will not transfer, either directly or indirectly, the Storr Platform, either in whole or in part, to any destination subject to export restrictions under United States law, unless prior written authorization is obtained from the appropriate United States agency and will otherwise comply with all other applicable import and export laws, rules and regulations.
- Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same instrument. Delivery of this Agreement bearing a signature by electronic means (including DocuSign) will have the same effect as physical delivery of the paper document bearing the original signature.