This Juicer Terms of Service (“Agreement”) is entered into by and between Juicer Inc., a Delaware corporation located 664 Wisconsin Street, San Francisco, 94107 USA (“Juicer”) and the entity or person placing an order or accessing the Service (“Company” or “you”). If you are accessing or using the Juicer Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Company” reference your company. If Company has already entered into a separate written subscription agreement with Juicer for use of the Juicer Services, the terms and conditions of such other agreement shall prevail over any conflicting terms or conditions in this Agreement.  The Agreement consists of the terms and conditions set forth below, any attachments or exhibits identified below and any Order Forms (as defined below) that reference this Agreement.

 

Juicer and Company may be referred to collectively as “Parties” or individually as a “Party.” 

 

This Agreement permits Company to purchase online platform-as-a-service restaurant pricing management products and other services (the “Services” or “Juicer Services”) from Juicer pursuant to any Juicer ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (referred to below as a “Order Form”) and sets forth the basic terms and conditions under which those products and services will be delivered. This Agreement shall govern Company’s initial purchase on the Effective Date as well as any future purchases made by Company that reference this Agreement.

 

1. Effective Date. The ”Effective Date” of this Agreement is the effective date of the first Order Form referencing this Agreement.

​

2. Modifications to this Agreement: Juicer may modify the terms and conditions of this Agreement (including Juicer Services pricing and plans) from time to time, with notice given to Company by email or through the Juicer Services. Company must notify Juicer within thirty (30) days of notice of the modifications that Company does not agree to such changes, and Juicer (at its option and as Company’s exclusive remedy) may either: (a) permit Company to continue under the prior version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will apply) or (b) allow Company to terminate this Agreement and receive a pro-rated refund of any fees Company has pre-paid for use of the Juicer Services for the terminated portion of the applicable Subscription Term. Upon any changes to this Agreement, Company may be required to click an “I agree” box to demonstrate its agreement with the modified Agreement in order to continue using the Juicer Services, and in any event continued use of the Juicer Services after the modifications take effect constitutes Company’s acceptance of the modifications.

​

3. Acceptance.  BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT AND ENTERING INTO AN ORDER FORM WITH JUICER, OR BY ACCESSING OR USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.

​

4. The Services.  Juicer shall offer Company those Services described in each Order Form.  Juicer Services include Juicer Insights, Juicer Compete and Juicer Pricing, each as further described in Juicer published documentation, as may be updated and modified from time to time at Juicer’s sole discretion (together are collectively referred to as the “Juicer Services”).  Juicer Services may also include newly released Service features, functionalities or capabilities that Juicer makes generally available to its customers, as more fully described in an Order Form and in Juicer published documentation. 

In connection with Juicer’s performance of certain Juicer Services, Company also agrees to provide Juicer with the necessary access to restaurant operational technology for the purposes of manually implementing menu item price recommendations generated by Juicer Pricing, or for reading menu item prices for analysis or publication by Juicer Insights or Juicer Compete.  During the Subscription Term, if Company has subscribed to Juicer Pricing, Juicer will use commercially reasonable efforts to implement automated menu item price recommendations or to read menu item prices when or if an integration with the Company’s technology provider becomes available.

​

5. Juicer Services. 

​

5.1 Provision of Services.  The Juicer Services are provided on a subscription basis for a set term designated on the Service “Order Form” (each, a "Subscription Term").  Company shall purchase and Juicer shall provide the specific Juicer Services as specified in the applicable Order Form entered into as of the Effective Date.

​

5.2 Access to the Juicer Services.  During each Subscription Term, Juicer grants to Company and its Users the right to use and access the Juicer Services including Juicer Enriched Data (as defined below in Section 6.2), associated documentation and APIs, solely for its own benefit and in accordance with the terms and conditions of this Agreement.

 

5.3 Users. Use of and access to the Juicer Services is permitted only by users designated by Company, including contractors and affiliates (“Users”).  Company may grant certain Users administrative privileges (which may include authority to provision new User accounts as further described in the Documentation ("Administrators").  Company shall be responsible for any and all actions taken by Users on Company's account and for rescinding access to its account by any User that Company no longer wishes to have access.

​

5.4 General Restrictions.  Company shall not (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense the Juicer Services to a third party (except to Users as permitted herein); (b) use the Juicer Services to provide or create, or incorporate the Juicer Services into, any similar service provided to a third party or otherwise directly expose the functionality of the Juicer Services to any third party (except to Users as permitted herein); (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs, or to the Juicer Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to Juicer); (d) copy or modify the Juicer Services or any Juicer published documentation (including any underlying workflows, algorithms, procedures or hierarchies), or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Juicer Services (including any reports or data printed from the Juicer Services) and in the Documentation; (f) publicly disseminate information regarding the performance of the Juicer Services; (g) adversely impact the speed, security or integrity of the Juicer Services (or any data contained within the Juicer Services); or (h) conduct any penetration testing or exploit or attempt to exploit any vulnerabilities in the Juicer Services.

​

6. Agreement to Collaborate on Agreed Upon Projects

​

6.1 During any active Subscription Term, the parties hereby agree to cooperate, collaborate, and assist each other to achieve the technological objectives described in this Agreement and in Schedule 1, including:

​

6.1.1 In the case of Company, generating pricing data from its own business operations and its point of sale system that includes certain agreed upon data fields such as: the date of purchase, time of purchase, specific items ordered, quantity of each item ordered, price of each item, and total price of the order (collectively referred to as “Company Data”).

​

6.1.2 In the case of Juicer, using and incorporating Company Data during any active Subscription Term, in conjunction with:

• an analytics dashboard for the purposes of consolidating multiple data sources and illustrating restaurant performance statistics,

• an analytics dashboard and alerts system for the purposes of monitoring price variances between Company stores and competition, and their impact on product-specific conversion rates,

• a proprietary dynamic pricing algorithm for the purposes of implementing price adjustments in Company operational financial and pricing systems as part of the Juicer Services’ offering, and

 

6.1.3 Engaging in other agreed upon joint initiatives and activities (as further described in the attached Schedule 1).

​

6.2 Company Data License Grant.  In connection with Juicer’s provision of the Juicer Services, Company hereby agrees to grant Juicer, its affiliates, partners (including academic institutions), suppliers, and agents a non-exclusive, worldwide, royalty-free, irrevocable, perpetual right and license, i) to evaluate, process, store, copy, transfer, sub-license, display, distribute and otherwise use, Company Data for its own business purposes; ii) to modify, enhance, enrich, tune, and incorporate Company Data into Juicer’s machine learning dynamic pricing algorithms; iii) to combine, integrate, and incorporate Company Data with other similar data sets obtained from unaffiliated third parties; and iv) to develop, create, release and otherwise commercially exploit dynamic pricing technologies and related products and services that utilize insights, patterns and other behavioral trends derived from Company Data.  Any Company Data that has been transformed, tuned, supplemented and/or enriched by Juicer under subsections 6.2(ii) and (iii) above shall be referred to as “Juicer Enriched Data”.

 

6.3 Non-Exclusive Relationship.  Nothing in this Agreement shall restrict either party’s right to carry on its business and exploit any of its products or services as such party sees fit.  Except as may otherwise set forth in a Schedule, the relationship established herein is expressly non-exclusive.

​

7. Juicer Obligations

 

7.1 Juicer Technology.  In connection with Juicer’s provision of the Juicer Services and during the Subscription Term, Juicer shall use commercially reasonable efforts to implement the Juicer Services that are based upon Juicer Enriched Data or other data, information or materials Company provides Juicer under this Agreement (which technologies will be collectively referred to as “Juicer Technology”), and regularly communicate results.

​

7.2 Safeguarding Confidential Information.  Juicer agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of Company Confidential Information including Company Data, and Juicer shall comply with all applicable laws including all “Applicable Data Privacy Laws” as defined below in Section 8.3 in connection with Company Data, and with respect to its business, products and Services including Juicer Technology.  Juicer shall have no responsibility under this Section 7.2 for errors in transmission, unauthorized third-party access or other causes beyond Juicer’s reasonable control.

​

8. Company Obligations.

​

8.1 In General.  Company shall ensure that Company, its Affiliates and its Users' use of the Juicer Services is at all times compliant with Company's privacy policies and all applicable laws.

​

8.2 Responsibility for Company Data.  Company is solely responsible for the accuracy, content and legality of all Company Data and for permitting Juicer to lawfully use, process and access Company Data in connection with Juicer performance of the Juicer Services.  Company represents and warrants to Juicer that Company has all necessary rights, consents and permissions to collect, share and use all Company Data as contemplated in this Agreement, and that no Company Data will violate or infringe (i) any third-party intellectual property, publicity, privacy or other rights, (ii) any laws, or (iii) any terms of service, privacy policies or other agreement governing Company Data.

​

8.3 Safeguarding Confidential Information. Company agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of Juicer Confidential Information and the Juicer Services, and Company shall comply with all applicable laws including all “Applicable Data Privacy Laws”.  Company shall have no responsibility under this Section 8.3 for errors in transmission, unauthorized third-party access or other causes beyond Company’s reasonable control.

​

9. Data Obligations. 

​

9.1 In General; Transferring Only De-Identified Data.  Company shall use all commercially reasonable efforts to load, transfer and share with Juicer only de-identified and anonymized data as part of any data feeds sent to Juicer involving Company Data.  Company will apply an appropriate, industry-standard filter that eliminates personal data from any Company Data delivered to Juicer.  If Company is unable to filter out personal data from Company Data, Juicer may be able to assist with this activity.

​

9.2 Applicable Data Privacy Laws.  With respect to Company Data used, exchanged, shared, transferred, collected, stored and/or processed by a party under this Agreement, each party shall comply with all Applicable Data Privacy Laws governing each of their respective business operations, in the geographic locations in which Juicer Technology or Company Data are used or accessed (on the one hand) and in which the “data subjects” whose Data is collected and used (to the extent applicable), are situated and domiciled (on the other hand).

​

9.3 Definitions.  For purposes of this Agreement and to the extent applicable, “Applicable Data Privacy Laws” means any laws that impose requirements on a party’s use of ”personal data” or “personal information” including but not limited the European Union’s General Data Protection Regulation (“GDPR”), the California Consumer Privacy Act (“CCPA”), and any other multi-national, national, state, provincial or relevant local laws, statutes, regulations, codes, judicial decisions interpreting such laws, and other obligations that have the same force of law, including all such laws as amended, updated or expanded. 

​

10. Order Form Forms; Pricing Payment Terms; and Taxes. 

​

10.1 Order Form Forms and Pricing.  The parties shall enter into and execute an Order Form as of the Effective Date for the initial Subscription Term.  Company acknowledges that a new Order Form is not required for an automatic renewal that occurs under Section 14.1. Juicer Services pricing terms and descriptions as of the Effective Date are as set forth in a separate Order Form subject to and governed by this Agreement.

​

10.2 Payments Terms. One month of Juicer Pricing fees are due at signing for all initial locations, to cover data analysis and pricing strategy definition.  Once live, Juicer Services fees are invoiced monthly on the first day of each month. Invoices will include all Juicer Pricing locations that are live on the first day of the month as well as a prorated amount for locations that went live during the previous month. Juicer will begin invoicing monthly for 50% of all locations 6 months after signing. Juicer Compete invoices will include all locations. Company will pay each invoice within 30 days following the invoice date.  Late payments will accrue interest at a rate of 1.5% per month or the legal maximum rate, whichever is lower. Company will cure a delinquency in payment of any amounts owed under this Agreement within 30 days from the date of Juicer's delinquency notice. If Company fails to timely cure such delinquency, or regain compliance under Section 14.2(a) (defining the cure period for breach), Juicer may suspend Company's use of the Juicer Services or terminate this Agreement for breach, in addition to any other available rights and remedies.  Company is responsible for all fees, expenses and other costs relating to or connected with making invoiced payments to Juicer under this Agreement, including the direct payment of all banking fees, ACH processing fees, currency conversions, or similar transactional costs and fees; none of which Company may deducted or off-set from the Juicer’s invoiced total fee.  All terms of this Section 10 shall apply unless expressly stated otherwise in the applicable Order Form. 

​

10.3 Taxes. Juicer Services fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including for example, value-added sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Company is responsible for paying all Taxes associated with Company purchases hereunder (even if such Taxes are imposed by relevant taxation authorities following Juicer’s issuance of its invoices). If Juicer has the legal obligation to pay or collect Taxes for which Company are responsible under this Section 10.3, Juicer will invoice Company and Company will pay that amount unless Company provides Juicer with a valid tax exemption certificate authorized by the appropriate taxing authority. For the avoidance of doubt, Juicer shall be solely responsible for Taxes assessable against Juicer based on Juicer’s income, property and employees, and Company shall not withhold or deduct any amounts for same except as required by applicable law.

​

11. Confidentiality.

​

11.1 Each party (as “Receiving Party”) agrees that all code, inventions, unpublished documentation, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. 

​

11.2 The Services, any Juicer Technology, its dynamic pricing algorithms, prototypes, Juicer Enriched Data, unpublished machine learning analyses and practices, Service performance information relating to such Juicer Technology, future product specifications and road map, unpublished documentation and technical information, and the terms and conditions of this Agreement, are and shall be deemed Juicer Confidential Information without any marking or further designation. 

​

11.3 Company Data is deemed to be Company Confidential Information without any marking or further designations.

​

11.4 Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.  The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 11 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 11.  The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.  The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment.  The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

​

12. Ownership; Intellectual Property Rights; Branding.

​

12.1 For purpose of this Agreement, "Intellectual Property Rights" means all intellectual property or other proprietary rights worldwide, including patents, copyrights, trademarks, moral rights, trade secrets, and any other intellectual or industrial property, including registrations, applications, renewals, and extensions of such rights.

​

12.2 Juicer Intellectual Property Rights.  Except for Company Data rights defined under this Agreement (which are subject to non-exclusive licenses), all worldwide right, title and interest (including without limitation any Intellectual Property Rights, related goodwill and Confidential Information) in or to the Juicer Services, Juicer Technology, Juicer Enriched Data, the Trademarks, documentation and any training or other related materials shall be owned by and remain with Juicer or its licensors, and this Agreement shall not be construed as transferring any interest in them to Company. All rights or licenses in and to the foregoing Juicer Services, Juicer Technology and Juicer Enriched Data not expressly granted to Company in this Agreement are reserved by Juicer and its licensors.

​

12.3 Company Intellectual Property Rights.  Except for the express, non-exclusive licenses granted to Juicer hereunder, all worldwide right, title and interest (including without limitation any Intellectual Property Rights, related goodwill and Confidential Information) in or to the Company Data, the Trademarks, and other related materials shall be owned by and remain with Company or its licensors, and this Agreement shall not be construed as transferring any interest in them to Juicer. All rights in and to the foregoing Company Data not expressly granted to Juicer in this Agreement are reserved by Company and its licensors.

​

12.4 Feedback.  Company, from time to time, may submit comments, questions, suggestions or other feedback relating to Juicer Technology ("Feedback"). Juicer may freely use or exploit the Feedback in connection with any of its own products or services, including those products and services incorporating Juicer Technology, without any obligation to Company to account or pay royalties.  Company acknowledges that Juicer retains all right, title and ownership in and to Juicer products and services that include Feedback.  Company is under no affirmative obligation to provide Feedback to Juicer.

​

13. Warranties. Disclaimers.

​

13.1 General Warranties.  Each party represents and warrants that: (A) it is duly formed and validly existing under applicable laws and in good standing in applicable business locations as required; (B) it has all necessary right, title, license and authority to enter into and perform its obligations under this Agreement; (C) it has appropriate agreements with its licensors, partners, content-providers and suppliers to allow it to use and permit others to use the products, services and (in the case of Company), Company Data in accordance with the terms of this Agreement; and (D) the person signing this Agreement on behalf of the party has full authority to bind that party to the terms and conditions hereof.

​

13.2 Data Warranties.  Company represents and warrants to Juicer that Company has all necessary rights, consents and permissions to collect, share, license and use all Company Data as contemplated in this Agreement, and that no Company Data will violate or infringe (i) any third-party intellectual property, publicity, privacy or other rights, (ii) any laws, including Applicable Data Privacy Laws; or (iii) any terms of service, privacy policies or other agreement governing the Company Data.

​

13.3 Limited Juicer Services Warranty.  Juicer warrants, for Company’s benefit only, that the Juicer Services will operate in substantial conformity with the applicable Documentation.  Juicer’s sole liability (and Company’s sole and exclusive remedy) for any breach of this warranty shall be, at no charge to Company, for Juicer to use commercially reasonable efforts to correct the reported non-conformity, or if Juicer is unable to correct the defect Juicer Services, or if Juicer determines such remedy is impracticable, either party may then terminate the applicable Juicer Services following a cure period of not less than thirty (30) days.  The limited warranty set forth in this Section 13.3 shall not apply: (i) unless Company makes a claim within thirty (30) days of the date on which Company first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge or evaluation basis.  For avoidance of doubt, Juicer is not responsible for the results produced by, or Company's use of, the Juicer Technology, Juicer Services or the Juicer Enriched Data.  Results will vary from geographical location to location, and food segment market to market.  Company’s use of the Juicer Services is no guarantee of increased revenue or other financial results.  Juicer Services are a technological tool to enable Company to adapt pricing strategy to various market conditions and factors based upon historical trends.  Company expressly acknowledges as a condition to its use of the Juicer Services that past performance is no guarantee of future outcomes and results.

​

13.4 Warranty Disclaimer.   EXCEPT FOR THE LIMITED WARRANTIES IN SECTIONS 13.1 and 13.3, ABOVE, THE JUICER SERVICES AND JUICER TECHNOLOGY ARE PROVIDED “AS IS”. NEITHER JUICER NOR ITS PARTNERS AND SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. JUICER DOES NOT WARRANT THAT COMPANY’S USE OF THE JUICER TECHNOLOGY AND JUICER SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES JUICER WARRANT THAT IT WILL REVIEW THE COMPANY DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE COMPANY DATA WITHOUT LOSS.  JUICER SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF JUICER. COMPANY MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

​

13.5 By Company.  Company represents and warrants that Company’s use of the Juicer Services shall comply with all applicable laws, regulations, statutes, judicial decisions or other rules and regulatory or governmental rulings in connection with Company’s business operations, and that Company’s use of the Services shall not conflict with or violate any existing Company duty, obligation or contractual commitment.  Company shall be solely liable to Juicer or to third parties, for any violation, breach or non-compliance with any of the foregoing obligations.

​

14. Term and Termination. 

 

14.1 Term.  The term of this Agreement (“Term”) and the Juicer Services Subscription Term set forth in the initial Order Form shall commence on the Effective Date hereof, and shall continue until the termination of this Agreement in accordance with the terms hereof and for the duration set forth in the Order Form.  The Agreement and the Juicer Services set forth in an Order Form will automatically renew for additional, consecutive one (1) year periods (each a “Renewal Term”), unless either party provides not less than thirty (30) days’ written notice of non-renewal prior to the end of the applicable Subscription or Renewal Term.

​

14.2 Termination.  Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operations without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). 

​

14.3 Effect of Termination.  Upon any expiration or termination of this Agreement, Company shall immediately cease any and all use of and access to the Juicer Services (including any and all related Juicer Technology) and delete (or, at Juicer's request, return) any and all copies of its published documentation, any Juicer passwords or access codes and any other Juicer Confidential Information in its possession.  Juicer shall make Company Data available for retrieval for thirty (30) days following termination of this Agreement for any reason.  Thereafter, Company acknowledges that following termination (and the Company Data retrieval period), it shall have no further access to the Juicer Services or any Company Data submitted to the Juicer Services, and that Juicer may delete any such materials as may have been stored by Juicer at any time.  Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. 

​

14.4 Survival.  Upon termination or expiration of this Agreement, all perpetual license grants in favor of Juicer to Company Data shall remain in effect, and all other terms that by their nature and language shall survive any such termination or expiration.  All terms of this Agreement which by their nature extend beyond the termination of this Agreement, remain in effect until fulfilled and apply to respective successors and assigns.

​

15. Indemnity; Limitation of Liability Terms.

 

15.1 Subject to the remainder of this Section 15, Juicer shall defend Company against a third party claim that the Juicer Services infringe a U.S. patent or any copyright, or misappropriates any trade secrets; and Juicer shall indemnify Company from the resulting direct costs and damages finally awarded against Company to the third party making such claim, by a court of competent jurisdiction or agreed to in a settlement entered into by Juicer (which expressly releases all past, present and future claims against Company).  Company will be entitled to indemnification only if: (i) Company notifies Juicer in writing within ten (10) days of the date it first becomes aware of a claim, (ii) Juicer has sole control of the settlement, compromise, negotiation and defense of any such action; and (iii) Company gives Juicer all reasonably available information and assistance, at Juicer’s expense.

​

15.2 Subject to the remainder of this Section 15, Company shall defend Juicer against a third party claim i) that the Company Data infringes a U.S. patent or any copyright, misappropriates any trade secrets, or violates any Applicable Data Privacy Laws, or ii) that arises out of or results from, any breach of Section 13.5; and Company shall indemnify Juicer from the resulting costs and damages finally awarded against Juicer to the third party making such claim, by a court of competent jurisdiction or agreed to in settlement entered into by Company (which expressly releases all past, present and future claims against Juicer). Juicer will be entitled to indemnification only if: (i) Juicer notifies Company in writing within ten (10) days of the date it first becomes aware of a claim, (ii) Company has sole control of the settlement, compromise, negotiation and defense of any such action; and (iii) Juicer gives Company all reasonably available information and assistance, at Company’s expense.

​

15.3 With respect to claims made under Sections 15.1 and 15.2(i), each party may, at its option, obtain the right to allow the other party continued use of the Company Data or Juicer Technology (as the case may be), substitute other equivalent technology or data, or modify the Company Data or Juicer Technology (as the case may be) so it is no longer infringing, or, if none of the foregoing remedies are commercially feasible, terminate the party’s right to use the allegedly infringing Company Data or Juicer Technology (as the case may be), and in the case of Juicer, provider the Company a refund of prepaid, unused Service fees for the remaining portion of the then active Subscription Term. The foregoing indemnity will not apply to any infringement claim arising from: (i) Company Data or Juicer Technology which has been modified by parties other than Company or Juicer, if such claim would have been avoided by not so modifying the Company Data or Juicer Technology; (ii) combination of the Company Data or Juicer Technology with hardware or other software, if such claim would have been avoided by not so combining the Company Data or Juicer Technology; or (iii) the use of a superseded or altered release of the Company Data or Juicer Technology or the use of the Company Data or Juicer Technology other than as permitted under this Agreement or, in the case of Juicer Technology, in accordance with its published documentation. This Section 15.3 states each party’s sole and exclusive remedy with respect to claims of infringement of third party proprietary rights of any kind.

​

15.4 Limitation of Liability.

​

15.4.1 NEITHER PARTY SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. 

​

15.4.2 SUBJECT TO SECTION 15.4.3 BELOW, A PARTY’S ENTIRE DIRECT DAMAGE LIABILITY UNDER THIS AGREEMENT TO THE OTHER PARTY SHALL NOT EXCEED THE GREATER OF I) FIVE THOUSAND UNITED STATES DOLLARS (USD$5,000), OR II) THE TOTAL JUICER SERVICES FEES PAID OR PAYABLE BY THE COMPANY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT, CLAIM OR INCIDENT GIVING RISE TO THE LIABILITY.

​

15.4.3 THE LIMITATIONS IN THIS AGREEMENT SHALL NOT APPLY TO I) CLAIMS ARISING UNDER SECTIONS 15.1 AND 15.2, II) ANY VIOLATION OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS BY THE OTHER PARTY, OR III) FROM GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, BAD FAITH OR TO ANY OTHER LIABILITY WHICH MAY NOT BE EXCLUDED BY APPLICABLE LAW.

​

15.4.4 The parties agree that the limitations specified in this Section 15 shall survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

​

16. Miscellaneous Legal Terms.

​

16.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.  Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities.  Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be null and void.

​

16.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. 

​

16.3 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods.  The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in Santa Francisco County, California and both parties hereby submit to the personal jurisdiction of such courts.

​

16.4 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action. 

​

16.5 Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section 16.5 and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. 

​

16.6 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement.  No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.  No provision of any purchase order or other business form employed by Company will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect. 

​

16.7 Order of Precedence. In case of conflict between any provisions of this Agreement, the order of precedence of the documents constituting this Agreement is as follows, each listed document superseding in the event of any conflicting provision in a later listed document: (1) Amendments to the Agreement; (2) the Order Form; and (3) Agreement including the Schedule.

​

16.8 Entire Agreement.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous and contemporaneous written and oral agreements, communications and proposals, relating to the subject matter of this Agreement. 

 

16.9 Force Majeure.  Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, epidemic, pandemic or other public health emergency, failure or diminishment of power or telecommunications or data networks or services (including those of Infrastructure Providers), or refusal of a license by a government agency.

 

16.10 Subcontractors. Either party may use the services of subcontractors and permit them to exercise the rights granted to such party in order to perform such party’s obligations under this Agreement, provided that the party selecting the subcontractor remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance as required under this Agreement. 

 

16.11 Subpoenas.  Nothing in this Agreement prevents Juicer or Company from disclosing Confidential Information to the extent required by law, subpoenas, or court orders, but the party receiving the subpoena will use commercially reasonable efforts to notify the other party where permitted to do so.

 

16.12 Independent Contractors.  The parties to this Agreement are independent contractors.  There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties.  Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

 

16.13 Counterparts. The Order Form may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.

 

 

SCHEDULE 1

CO-MARKETING TERMS

​

1. During the Subscription Term, the parties may engage in the following co-marketing and promotional activities (as may be updated from time to time during the Term):

​

• Exploiting reciprocal Trademarks and logo usage rights;

• Jointly developing and presenting case studies;

• Engaging in online promotional events;

• Making and releasing technical presentations;

• Establishing hypertext links from each party’s websites;

• Releasing marketing and promotional documentation and literature.

 

2. For the purposes of this Agreement, "Trademarks" mean the trademarks, logos, trade names, service marks or other branding used by a party (whether registered or unregistered) in connection with that party's products and services.

​

3. Each party hereby grants to the other party the non-exclusive, non-transferable, revocable license to use and display the Trademarks solely in connection with and solely to the extent reasonably necessary for, the marketing and promotion of the relationship with the other party in accordance with the terms and conditions of this Agreement. 

 

4. Neither party shall remove or alter the copyright notices, Trademarks, logos, or other proprietary notices incorporated in, marked on or affixed to the Company Data or Enriched Data, related documentation, marketing materials or other materials provided by either party to the other party.

 

5. At the request of a party, the other party agrees to the issuance of a joint press release ("Press Release”) on a mutually agreed upon date following the Effective Date.  Each party will have the right to approve the Press Release in advance, but such approval will not be unreasonably delayed or withheld. 

​

6. During the Subscription Term, the parties also agree to participate in other reasonable marketing activities described in this Schedule 1 that promote the benefits of each party’s products and services to other potential customers and to use of a party’s name and logo on each party’ web site and in agreed upon promotional materials. Each party agrees that the other party may disclose such party as a partner of the other party.