Platform Terms and Conditions Agreement
Last updated: September 1, 2019
In the absence of a more specific written agreement with b8ta, this Agreement applies to Company’s access and use of the Platform (defined below). If Company is obtaining access to the Platform through a third party, such third party may require that Company agree to additional terms, conditions, or restrictions regarding Company’s use of the Platform. Nothing in such third party agreement will be deemed to modify Company’s obligations or b8ta’s rights under this Agreement. The Agreement is subject to change by b8ta in its sole discretion at any time. When changes are made, b8ta will make a new copy of the Agreement available in the “Legal” folder in the library on the Platform. b8ta will also update the “Last Updated” date at the top of the Agreement. Any changes to the Agreement will be effective thirty (30) days after the earlier of (i) the date on which notice of such changes is posted on the Platform or (ii) the date on which b8ta sends notice of such changes to Company. b8ta may require Company to provide consent to the updated Agreement in a specified manner before further use of the Platform is permitted. If Company does not agree to any change(s) after receiving a notice of such change(s), Company shall stop using the Platform. Otherwise, Company’s continued use of the Platform constitutes Company’s acceptance of such change(s). PLEASE REGULARLY CHECK THE PLATFORM TO VIEW THE THEN-CURRENT TERMS.
1. Definitions.Capitalized terms will have the meanings set forth in this Section 1, or in the section where they are first used.
1.1 “Authorized User” means each of Company’s employees, agents, and independent contractors who are authorized to access the Platform by Company.
1.2 “Company Content” means any content and information provided or submitted by, or on behalf of, Company or its Authorized Users for use with the Platform.
1.3 “Documentation” means the technical materials provided by b8ta to Company in hard copy or electronic form describing the use and operation of the Platform.
1.4 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.5 “Platform” means the b8ta software-as-a-service retail management and marketplace application, including without limitation, the results, reports, materials and documentation made available to Company as part of the Platform.
1.6 “Supported Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by b8ta as required for use of the Platform. The current requirements are described in the Documentation.
2. Use of Platform.Company shall be solely responsible for ensuring that Company and its Authorized Users have the telecommunications, computer network hardware, or other Supported Environment requirements needed for Company and its Authorized Users to use and access the Platform. Company’s access to and use of the Platform is subject to Company’s ongoing compliance with the following:
2.1 Company will access and use the Platform solely for Company’s internal business purposes in accordance with the Documentation;
2.2 Company will only use the Documentation to support Company’s use of the Platform;
2.3 Unless otherwise agreed in writing by b8ta, Company will permit no more than three (3) Authorized Users to access and use the features and functions of the Platform;
2.4 Company will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform, and notify b8ta promptly of any such unauthorized use known to Company;
2.5 Company will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of b8ta or its licensors on the Platform or Documentation or any copies thereof; and
2.6 Company will not, and will not permit any Authorized User or other party to: (a) allow any third party to access or use the Platform or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Platform or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Platform or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Platform, except to the extent the foregoing restriction is prohibited by applicable law; (e) interfere in any manner with the operation of the Platform or the hardware and network used to operate the Platform; (f) modify, copy or make derivative works based on any part of the Platform or Documentation; (g) access or use the Platform or Documentation to build a similar or competitive product or service; (h) attempt to access the Platform through any unapproved interface; (i) perform or publish any performance or benchmark tests or analyses relating to the Platform, unless approved in writing by b8ta; (j) otherwise use the Platform in any manner inconsistent with applicable law, the Documentation, or this Agreement; or (k) otherwise use the Documentation in any manner inconsistent with applicable law or this Agreement.
3. Intellectual Property.
3.1 Ownership. Company acknowledges that b8ta and its licensors own all rights, title, and interest in the Platform, Metadata (as defined below), and Documentation, including all worldwide Intellectual Property Rights therein. All rights in and to the Platform, Metadata, and Documentation not expressly granted to Company in this Agreement are reserved by b8ta and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Company regarding the Platform, Metadata, Documentation, or any part thereof.
3.2 Feedback. Company hereby grants to b8ta a royalty-free, worldwide, transferable, sublicensable, irrevocable, fully paid, royalty-free, perpetual license to use or incorporate into the Platform, and any one or more b8ta products and/or services any suggestions, enhancement requests, recommendations or other feedback provided by Company, including Authorized Users. b8ta will not identify Company as the source of any such feedback without Company’s prior written consent.
4. Company Content and Responsibilities.
4.1 License; Ownership. Company will obtain all third party licenses, consents and permissions needed for b8ta to use the Company Content to provide the Platform, without any costs or obligations on b8ta. Company grants b8ta a non-exclusive, sublicensable (through multiple tiers of sublicensees), transferable, worldwide, royalty-free and fully paid license during the Term (a) to use the Company Content as necessary for purposes of providing and improving the Platform, and (b) to use Company’s trademarks, service marks, and logos as required to provide the Platform. Company grants b8ta an irrevocable, perpetual, non-exclusive, sublicensable (through multiple tiers of sublicensees), transferable, worldwide, royalty-free and fully paid license both during and after the Term to use the Company Content in an aggregated and/or anonymized form to: (i) develop and improve the Platform and b8ta’s products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose information and statistics regarding use of the Platform, provided, however, that Company will not be identifiable without Company’s consent (collectively, such output, metadata, tags, or other insights or analytics from any of the foregoing (i) – (iii), “Metadata”). The Company Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Company. All rights in and to the Company Content not expressly granted to b8ta in this Agreement are reserved by Company.
4.2 Company Responsibility. Company will be responsible for all changes to and/or deletions of Company Content made by its Authorized Users and the security of all passwords and other Access Protocols required in order the access the Platform. b8ta is not obligated to back up any Company Content; the Company is solely responsible for creating backup copies of any Company Content at Company’s sole cost and expense. Company will have the sole responsibility for the accuracy, completeness, quality, integrity, legality, reliability, and appropriateness of all Company Content, including without limitation, compliance with any applicable laws relating to Company’s products. Company represents and warrants that Company Content will not (a) infringe or misappropriate any third party intellectual property rights; (b) be deceptive, defamatory, obscene, pornographic, or unlawful; (c) contain any viruses, worms or other malicious computer programming codes; or (d) otherwise violate the rights of a third party. Company will comply with all applicable laws, ordinances, regulations, and statutes that are applicable to its access and use of the Platform and Documentation. Company agrees that any use of the Platform contrary to or in violation of this Section 4.2 constitutes unauthorized and improper use of the Platform. Company will indemnify, hold harmless, and defend b8ta from any claims, suits, losses, liabilities, damages, court judgments or awards and the associated costs and expenses (including reasonable attorney’s fees), incurred with respect to a breach of this Section 4.2.
5. Third Party Services.The Platform may contain links and integrations to other third-party websites, applications, services and application programming interfaces (collectively, “Third-Party Services”), which are subject to the terms and conditions (including privacy policies) of each such Third-Party Service. By using the Platform, Company authorizes b8ta to provide data from the Platform to such Third Party Services. Such Third-Party Services are not under the control of b8ta, and b8ta is not responsible for any Third-Party Services. b8ta does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or their products or services. Company’s use of the Third-Party Services is at its own risk. Company should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and should make whatever investigation it feels necessary or appropriate before proceeding with any transaction with any third party.
6. Warranty Disclaimer.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM AND Documentation ARE PROVIDED “AS IS,” AND B8TA MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR COVENANTS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, or any implied warranties arising out of course of dealing or trade usage or practice.
B8TA MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE PLATFORM AND DOCUMENTATION WILL MEET COMPANY’S REQUIREMENTS; (2) THE INFORMATION, CONTENT, AND DATA ON THE PLATFORM AND IN THE DOCUMENTATION ARE ACCURATE, COMPLETE, OR CURRENT; (3) COMPANY’S USE OF THE PLATFORM AND DOCUMENTATION WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (4) ANY ERRORS IN THE PLATFORM OR DOCUMENTATION WILL BE CORRECTED; (5) COMPANY’S USE OF THE PLATFORM AND DOCUMENTATION WILL NOT EXPOSE COMPANY’S HARDWARE OR NETWORKS TO ADDITIONAL SECURITY RISK; OR (6) THE PLATFORM AND DOCUMENTATION WILL BE COMPATIBLE WITH COMPANY’S DEVICES. COMPANY UNDERSTANDS THAT COMPANY IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO COMPANY’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM ANY MATERIAL AND/OR DATA DOWNLOADED FROM OR OTHERWISE PROVIDED THROUGH THE PLATFORM.
7. Limitation of Liability
7.1 Types of Damages. IN NO EVENT WILL B8TA BE LIABLE TO COMPANY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM OR ANY LOST PROFITS, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF B8TA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
7.2 Amount of Damages. THE MAXIMUM TOTAL CUMULATIVE LIABILITY OF B8TA ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT or company’s use of the platform WILL NOT EXCEED $100. IN NO EVENT WILL b8ta’S LICENSORS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
7.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 7 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the Agreement has been entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
8. Confidentiality.Company agrees that the Platform, Documentation, and all enhancements and improvements thereto, as well as any other information disclosed by b8ta to Company that is identified as “confidential” “proprietary” or with a similar legend or that Company knows or would reasonably be understood by a third party, to be confidential, will be considered to be the “Confidential Information” of b8ta. Company will not (i) use the Confidential Information except as expressly permitted by this Agreement, or (ii) make the Confidential Information available in any form to any person other than to Company’s employees or consultants with a need to know and who are under an obligation of confidentiality not to disclose such Confidential Information. Company will use the same degree of care to protect the confidentiality of such Confidential Information as Company uses to protect its own confidential information. The confidentiality obligations set forth in this Section 8 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of Company; (b) was already known to Company at the time of disclosure free of any confidentiality duties or obligations; or (c) Company can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of Company who had no access to the Confidential Information. In addition, the Company may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) Company promptly notifies the b8ta in writing of such required disclosure and cooperates with b8ta if b8ta seeks an appropriate protective order.
9. Term and Termination.
9.1 Term. This Agreement will begin on the Effective Date and continue in full force and effect unless terminated by either party.
9.2 Termination Unless otherwise agreed upon in a written agreement with b8ta, b8ta may suspend access to the Platform or terminate this Agreement at any time, including for Company’s material breach of Sections 2 or 4.2 of this Agreement. Additionally, either party may terminate this Agreement if (i) the other party materially breaches the Agreement and fails to cure such breach, if curable, within thirty (30) days following written notice by the non-breaching party describing such breach with reasonable particularity or (ii) the other party ceases to do business as a going concern, makes an assignment for the benefit of creditors, is insolvent or the subject of receivership, or in the event any substantial part of the other’s property is or becomes subject to any levy, seizure, assignment or sale for or by any creditor or governmental agency without being released or satisfied within ten (10) days thereafter. If Company has entered into a Retail Management Agreement or similar agreement with b8ta or b8ta’s retail partner, this Agreement will automatically terminate upon expiration or termination of such agreement.
9.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return or destroy all Confidential Information of the other party, as set forth in Section 8. Sections 1, 2, 3, 4, 5, 6, 7, 8, 9.3, and 10 will survive expiration or termination of this Agreement for any reason.
10. Miscellaneous.The parties agree to comply with the Data Protection Addendum.
10.1 Governing Law and Dispute Resolution. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any dispute or claim arising out of or in connection with this Agreement or the performance, breach or termination thereof, shall be finally settled by binding arbitration in San Francisco, California, under the rules of the American Arbitration Association Judicial Arbitration & Mediation Services, Inc (JAMS) by arbitrator(s) appointed in accordance with such rules. The language to be used in the arbitral proceedings shall be English. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for injunctive relief.
10.2 Export. Company may not use, export, import, or transfer the Platform or Documentation except as authorized by U.S. law, the laws of the jurisdiction in which Company obtained Platform and Documentation, and any other applicable laws. In particular, but without limitation, Platform and Documentation may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Platform and/or Documentation, Company represents and warrants that (i) Company is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) Company is not listed on any U.S. Government list of prohibited or restricted parties.
10.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
10.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
10.6 Force Majeure. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
10.7 Independent Contractors. Company’s relationship to b8ta is that of an independent contractor, and neither party is an agent or partner of the other. Company will not have, and will not represent to any third party that it has, any authority to act on behalf of b8ta.
10.8 Electronic Notices. Company (1) consents to receive communications from b8ta in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications related to these Agreement that b8ta provides to Company electronically satisfy any legal requirement that such communications would satisfy if they were made in writing in a physical document.
10.9 Notices. Where b8ta requires that Company provide an e-mail address, Company is responsible for providing b8ta with Company’s most current e-mail address. In the event that the last e-mail address Company provided to b8ta is not valid, or for any reason is not capable of delivering to Company any notices required/permitted by this Agreement, b8ta’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Company may give notice to b8ta at the following address: b8ta, Inc., 121 Second St., 6th Floor, San Francisco, California 94105, Attn: General Counsel. Such notice shall be deemed given when received by b8ta by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
10.10 Language. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall not be binding on the parties hereto. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
10.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. Except as set forth in the second paragraph of this Agreement, no modification of or amendment to this Agreement will be effective unless in writing and signed by an authorized signatory of b8ta.