Distributor Portal Terms of Service

THESE DISTRIBUTOR PORTAL TERMS OF SERVICE GOVERN YOUR ACCESS AND USE OF THE DISTRIBUTOR INSTANCE OF THE MOBILE AND WEB-BASED PRODUCT DATA, SYNDICATION AND RELATED SERVICES (THE “PORTAL”) MADE AVAILABLE BY CUT+DRY. BY ACCEPTING THESE DISTRIBUTOR PORTAL TERMS OF SERVICE, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER THAT REFERENCES THESE DISTRIBUTOR PORTAL TERMS OF SERVICE, YOU AGREE TO THE TERMS OF THESE TERMS OF SERVICE. 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 THESE DISTRIBUTOR TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE DISTRIBUTOR TERMS OF SERVICE, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

1. Definitions.

As used in this Agreement:

“Agreement” means this Terms of Service.

“Anonymized Data” means any Distributor Material that is aggregated or de-identified in a format such that neither Distributor, its customers or any other person or household may be identified.

“Content” means the audio and visual information, Documentation, software specifications, software, product data or images, products and services made available via the Portal, other than Distributor Materials and Distributor Confidential Information.  Content includes Anonymized Data and any information or data derived from Cut+Dry’s monitoring of access to or use of the Portal by Distributor or end-users but does not include Distributor Materials.

"Cut+Dry," “Vendor”, "we," "our," or "us" means Cut and Dry Inc., a Delaware corporation.

“Distributor” or “Company” means you or your entity.

“Distributor Materials” means any files, graphics, text, emails, data or other information, content or materials provided by Distributor (or its agents or licensors) to Cut+Dry in connection with this Agreement, or uploaded by Distributor to the Portal or collected by Cut+Dry from Distributor, including without limitation Distributor’s contact information, employee information, Distributor’s proprietary Product Book, products, images, promotional information, or other material submitted by Distributor to Cut+Dry.

“Documentation” means any manuals, instructions or other documents or materials that Cut+Dry provides or makes available to Distributor in any form or medium and which describe the functionality, components, or requirements of the Portal or Content, including any software specifications and any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof, excluding any marketing or other publicly available materials.

"Order" means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us, including any addenda and supplements thereto.

“Personal Information” means any information (i) relating to an identified or identifiable natural person; (ii) that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, persistent identifiers, and (iii) that may otherwise be considered “personal data” or “personal information” under applicable Data Protection Laws.

“Portal” means Cut+Dry’s Distributor Portal subscription software as a service product made available to Distributor under this Agreement, which enables the Services.

"Services" means the Portal and if applicable certain products or services related to the Portal, each to the extent ordered or activated by Distributor in connection with an Order and made available by Cut+Dry. Services, if ordered, are subject to pricing set forth in the applicable Order and any applicable Additional Services Terms of Use attached hereto as Appendix A (the “Additional Service Terms”), which form a part of and are incorporated into this Agreement.

2. Services.

Subject to the terms of this Agreement, and pursuant to mutually agreed-upon Orders, Cut+Dry will provide Distributor the Services.  Each Order will be deemed incorporated into this Agreement by reference.  To the extent that a conflict arises between the terms of an Order and the terms of this Agreement, the Order will control.  Cut+Dry may utilize subcontractors to perform all or a portion of the Services.

3. Integration Requirements; Access and Use of the Portal.

3.1 ERP Integration. Integration with Distributor’s Product Book is required prior to Distributor’s use of the Portal. In order to effectuate the Services, Cut+Dry will use commercially reasonable efforts to integrate the Portal with Distributor’s existing Product Book (and enterprise resource planning solution (“ERP”) if applicable), including migrating Distributor’s existing online ordering system to the Portal (the “ERP Integration”). Following the completion of the ERP Integration, Cut+Dry will provide Distributor and its Authorized Users access to the Portal. To complete the ERP Integration, Distributor agrees to:

• provide Cut+Dry with the resources and assistance required for completing the ERP Integration;
• provide Cut+Dry with a list of all the items it sells (“Distributor Products”) including their respective prices, SKUs, existing product images and other applicable information regarding such items provided to Cut+Dry (“Product Book”), which may be updated by Distributor from time to time upon notice to Cut+Dry;
• ensure that Distributor has acquired the necessary rights from Distributor’s ERP provider to allow Cut+Dry to integrate the ERP to the Portal; and
• direct its ERP’s provider to work with and assist Cut+Dry in completing the ERP Integration.

The parties agree that Distributor’s fulfillment of its responsibilities above are necessary for the successful integration of the Portal and that Cut+Dry will not be liable for any delays in performing the ERP Integration or failure to provide the Portal resulting from the acts or omissions of Distributor or its ERP provider.

3.2 Portal Access. Following the completion of the ERP Integration and subject to the terms herein, Cut+Dry hereby grants Distributor, during the term set forth in the applicable Order, a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Portal solely for Distributor’s internal business purposes.  No implied license(s) are granted herein, and Distributor may not use the Portal except pursuant to the limited rights granted in this Agreement and the applicable Order.  Any additional rights of Distributor to any deliverables developed, or any Portal licensed, under this Agreement will be set forth in the applicable Order.

3.3 Portal Restrictions. The Portal constitutes protected copyrighted material and valuable trade secrets of Cut+Dry.  Accordingly, Distributor will not (a) authorize or permit use of the Portal by persons other than its employees, agents and independent contractors of Distributor who are authorized by Distributor to use it (“Authorized Users”), (b) sublicense, lease, rent, loan or otherwise transfer to any third party the right to access and use the Portal, (c) use or access the Portal for the purpose of building a competitive product, (d) copy, frame, modify or create any derivative works of the Portal (or any component, part, feature, function, user interface, or graphic thereof), including without limitation by any automated or non-automated "scraping, except to the extent such restriction is prohibited by applicable law, (e) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Portal is compiled or interpreted, (f) use the Portal as part of a time-share, cloud services or service bureau or on a hosted basis for its own ASP or software offerings, (g) perform or disclose any benchmark or performance tests of the Portal, (h) perform or disclose any security testing of the Portal or associated infrastructure, including, but not limited to, network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing, (i) remove or modify any program markings or any notice of Cut+Dry’s or its licensors’ proprietary rights, (j) send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights, (k) send or store malicious code in connection with the Portal, (l) attempt to gain access to the Portal or its related systems or networks in a manner not authorized by Cut+Dry, or (m) cause or permit any Authorized Users or any other party to do any of the foregoing.  Distributor is responsible for its Authorized Users’ compliance with the terms of this Section 3.3.

Distributor hereby acknowledges that the Portal is intended only to allow Distributor’s Authorized Users to use the Portal for the purposes set forth in this Agreement and any applicable Order and that the Portal is not intended for storage or use of any data not related to such purpose, such prohibited data including, without limitation, social security numbers, location of persons, health information, driver’s license, or passport or visa number (“Prohibited Data”). Distributor and its Authorized Users will not input any Prohibited Data into or derive Prohibited Data from the Portal.

3.4 Access Protocols. Cut+Dry shall provide to Distributor the necessary access credentials and protocols to allow Authorized Users to access the Portal (the “Access Protocols”).  As between Distributor and Cut+Dry, Distributor shall be responsible for all acts and omissions of Authorized Users, including those which, if undertaken by Distributor, would constitute a breach of this Agreement, and any act by a person (whether or not an Authorized User) using Distributor’s Access Protocols. Distributor is responsible for maintaining the confidentiality of all Access Protocols and will immediately notify Cut+Dry of any suspected security breach or unauthorized access to the Access Protocols.

3.5 Account Administration. Distributor shall designate at least one Authorized User to act as an administrator and principal point of contact with Cut+Dry for purposes of this Agreement and any applicable Order.

3.6 No Interference with Service Operations. Distributor and its Authorized Users will not (a) interfere with or disrupt performance of the Portal or the data contained therein, (b) circumvent, disable, or interfere with security-related features of the Portal or features that prevent or restrict use, access to, or copying the Portal or any content or other data belonging to other users, or that enforce limitations on use of the Portal or any content belonging to other users, or (c) impose an unreasonable or disproportionately large load on the Portal’s infrastructure.

3.7 Scheduled Maintenance. Cut+Dry reserves the right to take down applicable servers hosting the Portal to conduct scheduled and emergency maintenance.  Cut+Dry will use commercially reasonable efforts to perform scheduled maintenance outside regular business hours and will provide advance notice for nonemergency maintenance.  Cut+Dry will not be responsible for any damages or costs incurred by Distributor due to unavailability of the Portal during scheduled or emergency maintenance.

4. Fees and Payment Terms.

4.1 General. Distributor will pay all applicable fees as set forth in each Order (the “Fees”). Cut+Dry may charge interest for any past due amounts at a rate of the lesser of 1.5% per month or the highest rate allowed by law, and Distributor will indemnify Cut+Dry for all costs, including expenses and attorney’s fees, Cut+Dry incurs in the collection of overdue payments.

4.2 Computation of Transaction-Based Fees. To the extent that any Fees are based on a percentage of a transaction , such percentage shall be based on the gross amount charged for such transaction, including sales and any other applicable taxes attributable to the purchase price (“Net Sales Proceeds”).

4.3 Invoicing. Unless otherwise set forth in an Order or the Additional Service Terms, Services subject to monthly subscription fees will be invoiced on a calendar-monthly basis at the start of each calendar month and due and payable within 15 days after receipt of each invoice. Set-up and hardware fees will be invoiced upon receipt by Distributor of the applicable services or hardware and due and payable within 15 days after receipt of each invoice. To the extent that Distributor activates the Pay+ Service, then the transaction-based fees for the Pay+ Service will be charged and collected against payment receipts as set forth in Additional Services Terms.

4.4 Service and Hardware Taxes. Fees quoted in any Order are exclusive of all taxes , and unless otherwise expressly specified, Distributor is responsible for, all sales, use, excise, value added, and other taxes, duties, levies, or similar charges, however designated, that are levied by any governmental or taxing authority relating to the activities governed by the Agreement, including any taxes assessed or required to be collected, paid, or withheld in connection with Distributor’s receipt of the Services or products (“Service and Product Taxes”), but excluding taxes in respect of Cut+Dry’s net income. Cut+Dry may at its sole discretion calculate, collect, or pay estimated Service and Product Taxes and, if it does so, Cut+Dry reserves the right to charge and Distributor will pay any Service and Product Taxes (in addition to Fees) as reasonably calculated by Cut+Dry. Calculation of Service and Product Taxes by Cut+Dry may be estimated at the time an Order is placed, based on, among other things, rates applicable to the billing address provided to Cut+Dry, and subsequently adjusted to conform to applicable law or regulation.

4.5 Transaction Sales Tax Computation and Reporting. Distributor is solely responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason in connection with transactions (“Transaction Taxes”) related to the Portal. It is Distributor’s sole responsibility to: (a) appropriately verify, input, and apply tax amounts and to apply the correct tax rates to determine what, if any, Transaction Taxes apply to payments Distributor makes or receives, (b) comply with federal, state, and local tax record-keeping requirements, and (c) consult with accounting professionals as necessary on tax-related matters. It is Distributor’s sole responsibility to collect, report, and remit the correct Transaction Taxes to the appropriate tax authority. Cut+Dry is not responsible for determining for collecting, reporting, or remitting any Transaction Taxes. Cut+Dry will not be liable for any owed taxes or fees or any losses or damages related to tax calculations in the Cut+Dry Services. For the avoidance of doubt, subject to applicable law, Cut+Dry is not obligated to, nor will it report or remit any Transaction Taxes to any tax authority. If fees imposed by Cut+Dry on any service, are based on a percentage fee or subject to card processing fees, it is Distributor’s obligation to ensure that the fee charged does not result in the diminishment of the amount of Transaction Taxes reported or remitted to any tax authority. Distributor is solely responsible for maintaining any business records related to Distributor’s sales and gross receipts. Distributor may be asked to provide Cut+Dry with a valid Tax Identification Number for tax reporting purposes. An IRS Form 1099 may be issued in Distributor’s name for the value of payments made.

4.6 Fee Increases. For any renewal term Cut+Dry may increase the applicable Fees by providing Distributor with written notice prior to the commencement of the applicable renewal term.

5. Confidentiality.

5.1 Confidential Information. “Confidential Information” means any and all proprietary or confidential data and information disclosed by a party (the “Discloser”) to the other party (the “Recipient”), or obtained by or on behalf of the Recipient through inspection or observation of the foregoing; in any case as a consequence of, or in relation to, the performance by a Party of its obligations or rights under this Agreement and whether in writing, or in oral, graphic, electronic or any other form.  The Confidential Information of Cut+Dry includes (a) any software, including both source and object code, (b) any other deliverables and documents furnished by Cut+Dry (including, without limitation, the oral and visual information relating thereto and provided in Cut+Dry publications), (c) the terms of and pricing under any Order, (d) any software specifications, (e) the architecture, structure, protocols, business, operational and technical information including but not limited to any and all strategies, formulas, product formulations, concepts, techniques, processes, designs, secrets, methods, cost data, computer programs, software, scientific or technical know-how, and financial, marketing, (f) the business plans, forecasts, projections and analyses related to Cut+Dry’s business, (g) business procedures, marketing plans, and client lists or personal data, any and all information concerning the suppliers or customers of Cut+Dry, and (h) any and all other information in any form or media supplied to Distributor by Cut+Dry or that Distributor obtained or received or developed or otherwise acquired in the course of or as a result of Distributor’s relationship with Cut+Dry (collectively “Cut+Dry Proprietary Information”).

5.2 Exclusions. Confidential Information does not include information that (a) is or becomes publicly known through no act or omission of the Recipient, (b) was rightfully known by Recipient without confidential or proprietary restriction before receipt from the Discloser, (c) becomes rightfully known to Recipient by a third party without confidential or proprietary restriction from the Discloser, (d) is independently developed by the Recipient without the use of or reference to the Confidential Information of the Discloser, (e) Discloser has authorized Recipient to use or disclose pursuant to the terms of this Agreement or otherwise in writing  or (f) is otherwise expressly excluded in an applicable Order.

5.3 Nondisclosure and Nonuse. Except as otherwise set forth in this Agreement or in an applicable Order, each party (a) will maintain in confidence the Confidential Information of the other party, (b) will not use or grant the use of the Confidential Information of the other party except to the extent reasonably necessary in connection with such party’s activities as expressly authorized by this Agreement, and (c) will not disclose the Confidential Information of the other party except on a need-to-know basis to such party’s directors, officers, employees, and consultants, to the extent such disclosure is reasonably necessary in connection with such party’s activities as expressly authorized by this Agreement.  To the extent that disclosure to any person is authorized by this Agreement, prior to disclosure, a party will require that the recipient be bound by similar confidential obligations with respect to the use of the Confidential Information of the other party except as expressly permitted under this Agreement.  Each party will notify the other party promptly upon discovery of any unauthorized use or disclosure of the other party’s Confidential Information.  Each party agrees that the terms and conditions of this Agreement will be treated as Confidential Information of both parties and will not be disclosed to any third party, provided, however, that each party may disclose the terms and conditions of this Agreement (i) to such party’s legal counsel, accountants, banks, financing sources and their advisors, (ii) in connection with the enforcement of this Agreement or rights under this Agreement, or (iii) in connection with an actual or proposed equity investment, merger, acquisition or similar transaction.

5.4 Permitted Disclosure. The confidentiality and non-disclosure obligations under this Section 5 will not apply to the extent that a party is required to disclose information by applicable law, regulation, rule (including rule of a stock exchange or automated quotation system), or order of a governmental agency or a court of competent jurisdiction or legal process, including tax authorities; provided, however, that the party will provide advanced written notice of such disclosure to the other party and provide the other party sufficient opportunity to object to any such disclosure or to request confidential treatment or a protective order (if applicable).

6. Intellectual Property Ownership.

6.1 IP Ownership. Notwithstanding any terms to the contrary in this Agreement, as between the parties Cut+Dry owns and will continue to own all right, title, and interest in and to all intellectual property rights embodied in or related to all discoveries, inventions, developments, improvements, works of authorship, information, data, know-how, ideas or other technology, intellectual property or results conceived, created, generated, developed or reduced to practice, whether directly or indirectly or solely or jointly with others, resulting from the performance of the Services, as well as the Portal and all Cut+Dry Proprietary Information.  Cut+Dry may use, without limitation, the general knowledge, skills and experience of its personnel, and any ideas, concepts, know-how and techniques that are acquired or used in the course of providing the Services.  Any derivative work Distributor or any Authorized Users may create of any part of the Services, and all rights be therein, shall be owned solely by Cut+Dry.  To that end, Distributor hereby irrevocably transfers and conveys to Cut+Dry, without further consideration, all right, title and interest that Distributor or any Authorized User may have or acquire in any such derivative work.

6.2 Distributor’s Trademarks. Distributor hereby grants to Cut+Dry a non-exclusive, worldwide, royalty-free license to use and display the Distributor’s name, logo and other trademarks (“Distributor Trademarks”) designated by Distributor to provide the Services and to market and/or cross-sell Distributor product offerings.  Subject to the foregoing license, Distributor will retain all intellectual property rights that it may have in and to the Distributor Trademarks, and all use thereof by Cut+Dry shall inure to the sole benefit of Distributor.

6.3 Distributor Materials. Subject to Sections 5, 6.2 and 6.4 Distributor hereby grants to Cut+Dry a non-exclusive, royalty-free, transferable, perpetual right and license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and create derivative works of Distributor Materials (including the Product Book), in whole or in part, and in any form, for use in connection with the Services and Cut+Dry’s (and its successors' and affiliates') business, including without limitation for (a) the provision, support and improvement of the Services, (b) promoting and redistributing part or all of the Services,  (c) building and training Cut+Dry’s machine-learning models to provide the Portal and product taxonomies, and (d) as required in response to judicial or other governmental requests, subpoenas, warrants, and court orders, or as otherwise required by applicable law or permitted under this Agreement.  Distributor hereby authorizes Cut+Dry to store copies of any or all of Distributor Materials as Cut+Dry deems necessary in order to facilitate any of the foregoing.  Distributor represents and warrants that (a) it has all rights, consents and/or permissions necessary to grant the licenses in this Section 6.3, including under any and all copyright, trademark, and other intellectual property rights, as well as any moral rights, rights of privacy, rights of publicity and similar rights of any type in or to Distributor Materials, (b) use of any such Distributor Materials (including derivative works) by Cut+Dry or Cut+Dry’s partners, and in compliance with the foregoing licenses, does not and will not infringe any intellectual property rights of any third party, including any third party logos and trademarks, and (c) the Distributor Materials do not violate any state or federal law, rule, or regulation applicable thereto, including with respect to electronic advertising.  Distributor may not upload to or otherwise make available on the Portal or to Cut+Dry any content or data (including content data or intellectual property of any third party) for which Distributor does not have all necessary rights, licenses, consents or permissions needed to so make available such content or data on the Service.  If Distributor Materials includes data or any intellectual property of third party persons (such as data or intellectual property licensed to Distributor by third parties) Distributor is responsible for ensuring such third parties have consented to the collection and sharing of such data with Cut+Dry for the purposes set forth herein and shall not include in Distributor Materials any content or data for which it does not have all necessary rights, licenses, consents or permissions.  If Distributor elects to utilize any third-party application in connection with its use of the Service, by doing so Distributor consents to its content and data being shared with such third-party applications and agrees that Cut+Dry is not an agent or broker or otherwise responsible for the activities or policies of those third-party applications.  Distributor is solely responsible for the accuracy, quality, content and legality of Distributor Materials and any transfer of Distributor Materials outside of the Portal by Distributor or any Authorized User.  Distributor is responsible for ensuring its systems are fully protected against unauthorized breaches and maintaining backups of Distributor Materials at all times.  While Cut+Dry may archive certain Distributor Materials while the Distributor’s accounts are active and not in default, if there is any loss of Distributor Materials, Distributor’s exclusive remedy is for Cut+Dry to use commercially reasonable efforts to attempt to replace or restore the lost data from the latest backup (if any) of the Distributor Materials that Cut+Dry has maintained in accordance with its ordinary storage procedures.  Without limiting any of the foregoing, Distributor is solely responsible for archiving Distributor Materials for use after the close of an account.

6.4 Personal Information. This Agreement is subject to, and intended to comply with, any applicable local, state and federal laws, rules and regulations relating to the use, collection, retention, storage, security, disclosure, transfer, sale or other processing of Personal Information, including, but not limited to, the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. (“Data Protection Laws”). Cut+Dry will collect, use, retain and process Personal Information contained in Distributor Materials consistent with the terms of Cut+Dry’s privacy policy available at https://www.cutanddry.com/legal/ (the “Privacy Policy”) and solely for the purpose of providing the Services set forth in the Agreement and in accordance with Distributor’s instructions set forth in the Agreement or in writing or as otherwise permitted by applicable Data Protection Laws, including for a permitted business or operational purpose such as performing analytics, address suppression, and recordkeeping. Anonymized Data may be used by Cut+Dry for lawful business purposes, including for the purposes of using, disclosing, and compiling statistical or analytical data regarding the performance, provision and operation of the Services, training Cut+Dry’s machine-learning models to provide the Portal to Distributor and its Authorized Users, and for providing and improving Cut+Dry’s products and services. Distributor’s use of the Services is subject to the Privacy Policy, which is hereby incorporated by reference into the Agreement. By using the Services, Distributor agrees that it has read, understood, and agrees to the data collection, use, disclosure, and management provisions in the Privacy Policy. Cut+Dry reserves the right to update the Privacy Policy from time to time and it is Distributor’s obligation to review the Privacy Policy from time to time to check for changes. All updates to the Privacy Policy will be effective on the date they are posted.

6.5 Feedback. Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback provided by Distributor to Cut+Dry with respect to the Services or Cut+Dry’s business (collectively, “Feedback”) will be owned by Cut+Dry and constitute Confidential Information of Cut+Dry which may not be disclosed to any third party.  Cut+Dry will be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind, on account of intellectual property rights or otherwise.

7. Warranties.

7.1 Mutual Warranties. Each party represents and warrants to the other party that (a) such party has full power and authority to enter into this Agreement and to perform its obligations under this Agreement, (b) this Agreement is a legal and valid obligation binding upon such party and enforceable in accordance with its terms, and (c) this Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which such party is a party or by which such party is bound.

8. Disclaimer and Limitation of Liability.

8.1 EXCEPT AS SET FORTH IN SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUT+DRY PROVIDES THE SERVICES, INCLUDING THE PORTAL AND ANY SOFTWARE RELATED TO THE SERVICES, ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND AND USE OF THE PORTAL AND RELATED SOFTWARE IS AT DISTRIBUTOR’S OWN RISK. CUT+DRY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE.  DISTRIBUTOR ASSUMES COMPLETE RESPONSIBILITY, WITHOUT ANY RECOURSE AGAINST CUT+DRY, FOR THE SELECTION OF THE SERVICES TO ACHIEVE DISTRIBUTOR’S INTENDED RESULTS AND FOR ITS USE OF THE RESULTS OBTAINED FROM THE SERVICES OR ANY SOFTWARE RELATED TO THE SERVICES IN DISTRIBUTOR’S BUSINESS.  DISTRIBUTOR ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED FROM USE OF THE SERVICES, INCLUDING THE COMPLETENESS, ACCURACY, AND CONTENT OF SUCH RESULTS.  CUT+DRY DOES NOT WARRANT THAT THE SERVICES WILL MEET DISTRIBUTOR’S REQUIREMENTS, THAT THE OPERATION OF THE PORTAL OR ANY SOFTWARE COMPRISING THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

8.2 EXCEPT TO THE EXTENT PROHIBITED BY LAW IN NO EVENT WILL CUT+DRY BE LIABLE TO THE DISTRIBUTOR OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT.

8.3 SUBJECT TO THE EXCLUSION EXCEPTIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT IN AN AMOUNT THAT EXCEEDS THE TOTAL AMOUNT OF FEES PAID TO CUT+DRY BY DISTRIBUTOR IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE FIRST CLAIM UNDER THIS AGREEMENT. “EXCLUSION EXCEPTIONS” SHALL MEAN THE PARTIES’ LIABILITY FOR:

1. ITS INDEMNIFICATION OBLIGATIONS IN SECTION 9;
2. ITS BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION 5;
3. ITS FRAUD OR FRAUDULENT MISREPRESENTATION;
4. DISTRIBUTOR’S FEES OBLIGATIONS (UNDER SECTION 4 OR OTHERWISE)
5. DISTRIBUTOR’S VIOLATION OF LAW UNDER SECTION 11; OR
6. MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

9. Indemnification.

9.1 Distributor Indemnity. Subject to Section 3, to the maximum extent permitted by applicable law, Distributor will defend, indemnify and hold Cut+Dry harmless from all losses, liabilities, damages and expenses (including reasonable attorneys’ fees and costs) incurred as a result of any claim, demand, action or proceeding by a third party to the extent arising out of or caused by (a) Distributor’s unauthorized use of the Portal, (b) Distributor’s breach of the representations and warranties in Section 6.3 (Distributor Materials) and Section 7.1 (Mutual Warranties), (c) Distributor’s breach of the obligations set forth in Section 5 (Confidentiality), (d) Distributor products or services, including the offer, sale, and fulfillment (except to the extent directly attributable to the Services), refund, cancellation, return, or adjustments thereof and for the avoidance of doubt any product liability or similar claims arising or resulting from the use of any products, (e) the sales, use, or other taxes and regulatory fees assessed, incurred, or required to be collected or paid for in connection with any advertisement, offer or sale of Distributor products (made on through or in connection with the Services), or the failure to meet Distributor’s related tax registration obligations or duties or (f) Distributor’s breach of the obligations set forth in Section 11 (Compliance with Law).

9.2 Cut+Dry Indemnity. Subject to Section 3, to the maximum extent permitted by applicable law, Cut+Dry will defend, indemnify and hold Distributor harmless from all losses, liabilities, damages and expenses (including reasonable attorneys’ fees and costs) incurred as a result of any claim, demand, action or proceeding by a third party to the extent arising out of a claim that Distributor’s authorized use of the Services infringes the U.S.  intellectual property rights of a third party.  Cut+Dry has no obligation to indemnify, defend or hold Distributor harmless (a) if the Services are altered or modified by Distributor or anyone else authorized by Distributor other than Cut+Dry, (b) to the extent that an infringement claim is based upon any software, design, specification, instruction, data or other material not furnished by Cut+Dry, (c) to the extent an infringement claim is based upon the combination of the Services with any products or services not provided to Distributor by Cut+Dry or use of the Services inconsistent with Documentation provided by Cut+Dry.  If Cut+Dry believes or it is determined that the Services may violate a third party’s intellectual property rights, Cut+Dry may choose in its reasonable discretion to (x) modify the Services to be non-infringing, provided such modifications do not materially diminish the functionality of the Services, (y) obtain a license for Distributor to allow for Distributor’s continued use of the Services, or (z) terminate Distributor’s access and use of the Services and refund to Distributor any prepaid but unaccrued fees as of the effective date of termination.  This Section 9 provides Distributor’s exclusive remedies and liabilities for any type of claim or damages described in this section.

9.3 Indemnification Procedures. If any action shall be brought against either party in respect to which indemnity may be sought from the other pursuant to the provisions of this Section 9, the indemnified party shall promptly notify the indemnifying party in writing, not later than 30 days after the indemnified party receives notice of the claim, specifying the nature of the action and, to the extent possible, the total monetary amount sought or other such relief as is sought therein.  The indemnified party shall cooperate with the indemnifying party in all reasonable respects in connection with the defense of any such action.  The indemnifying party will have sole control over the defense and settlement of the action, provided the indemnifying party shall not enter into any settlement that involves any admission of liability or payment by the indemnified party without its written consent.  Subject to the indemnified party’s compliance with the terms of this Section 9, the indemnifying party shall pay any and all costs, damages and expenses, including, without limitation, all reasonable attorneys’ fees and costs, awarded against the indemnified party by a court of competent jurisdiction as a result of any claim for which the indemnified party is being indemnified.

10. Term and Termination.

10.1 Term and Termination. This Agreement commences on the date Distributor first accepts it (by signature) and continues through the initial term described in the Order (the “Initial Term”) until terminated as set forth in this Section and the Order. Unless specified otherwise in an Order the Initial Term of the Order shall automatically renew for additional, successive thirty-six (36) month periods (each a “Renewal Term”), unless either party provides written notice of its intent not to renew at least ninety (90) days prior to the end of the Initial Term or  the then-current Renewal Term. Either party may terminate this Agreement (a) upon 60 days’ written notice in the event there are no operative Orders outstanding, or (b) if the other party breaches this Agreement and fails to cure the breach within the 30-day period commencing upon its receipt of written notice of the breach.

10.2 Effect of Termination. In the event of any termination or expiration of this Agreement, (a) all rights granted to Distributor hereunder will immediately cease, (b) Distributor will immediately discontinue all use of the Services, (c) Distributor will promptly cease use of any applicable Portal, (d) Distributor will certify to Cut+Dry in writing that it has completed (a) and (c) above, (e) Cut+Dry will immediately cease providing all Services under this Agreement, (f) Distributor will immediately pay to Cut+Dry all amounts due and payable up to the effective date of termination of this Agreement, and (g) this sentence and Sections 4,  5, 6, 1, 8, 9, 11, and 12 will survive any expiration or termination of this Agreement.

11. Compliance with Law.

In connection with this Agreement, Distributor and its agents will comply with all applicable laws and regulations, including (without limitation) health and safety laws, state licensing laws, and Data Protection Laws.  Distributor agrees not to use the Services, including the Portal, in a manner that would violate applicable law.  In no event will Cut+Dry be liable for any Distributor violation of law.

12. Miscellaneous.

12.1 Exclusivity. Except as otherwise set forth in an applicable Order, the relationship, if any, established by this Agreement is of a non-exclusive nature.

12.2 Entire Agreement. In the event of a conflict between this Agreement and an Order, the Order will govern.  This Agreement (together with any applicable Order and all exhibits, attachments, and addenda incorporated by reference herein and therein) sets forth the entire agreement and understanding of the parties relating to the subject matter of this Agreement and supersedes any other agreements or understanding with respect to such subject matter, unless made in writing and expressly incorporated into the Agreement and subject to Section 12.7.

12.3 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by a party, by operation of law or otherwise, without the prior written consent of the other party, and any attempted transfer, assignment or delegation without such consent will be void and without effect.  Notwithstanding the foregoing, Cut+Dry may assign this Agreement to any successor to substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise without such consent.  This Agreement will inure to the benefit of and be binding upon and enforceable against any successor or permitted assignee.

12.4 Force Majeure. Neither party will be liable for delays in its performance caused by events beyond its reasonable control, such as fires, floods, epidemics, computer viruses, earthquakes, riots, acts of terror, acts of God, storms, labor shortages or strikes, acts of civil or military authority or similar occurrences.

12.5 Publicity. Distributor consents to (a) Cut+Dry’s use of Distributor’s name and logo (i) on the Cut+Dry website and publicly-available printed materials, identifying Distributor as a customer of Cut+Dry and describing Distributor’s use of the Services on a non-confidential basis, or (ii) as otherwise set forth in the applicable Order, and (b) a press release with respect to Distributor’s use of the Services.

12.6 Notices. Any notice or communication under this Agreement must be in writing, signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, or mailed by registered or certified mail, in each case to the address of the receiving party as identified in this Agreement or at such other address as may hereafter be furnished in writing by either party to the other party.  Such notice will be deemed to have been given as of the date it is delivered.

12.7 Right to Amend. Subject to the terms hereunder and applicable law, Cut+Dry has the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services (an “Agreement Change”) with notice that is reasonable in light of the circumstances (by, for example, posting the updated Agreement on its website (which will be effective immediately upon posting unless otherwise stated) or sending Distributor notice via email or through the Services). Use of the Services after notice of any Agreement Change will confirm that Distributor has read, accepted, and agreed to be bound by the modifications to the Agreement or constitute Distributor’s acceptance of the changed Services, as applicable. Notwithstanding the foregoing, in the event that any Order is amended or renewed past the Initial Term of the Order or any applicable Renewal Term, as applicable, upon amendment or renewal of such Order the then-current Agreement will apply. Further, (a) any dispute that arose before the effective date of an Agreement Change shall be governed by the version of the Agreement that was in place when the dispute arose and (b) in the event that an Agreement Change negatively and materially impacts Distributor’s rights under this Agreement, then Distributor may terminate the Agreement and any Order by providing written notice thereof to Cut+Dry, provided such notice must be given within 30 days following the date of notice by Cut+Dry of the Agreement Change.  

12.8 Waiver; Severability. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy will operate as a waiver or affect any other right or remedy.  If any provision is deemed by a court unenforceable or invalid, that provision will be stricken or modified so as to be enforceable to the maximum extent permitted by law, and the remainder of this Agreement will be in full force and effect.

12.9 Independent Contractors. The relationship between the parties is that of independent contractors, and subject to the limited purposes of Cut+Dry providing payments processing services (if Distributor subscribes to such services) Cut+Dry is not Distributor’s agent and neither party has authority to contract for or bind the other party in any manner whatsoever.

12.10 Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions.  The state or federal court in San Francisco, California will be the jurisdiction in which any suits must be filed if they relate to this Agreement.

12.11 Counterparts. This Agreement may be executed by the parties by exchange of signature pages by mail, facsimile, email or other electronic means (if email or electronically, signatures in Adobe PDF, via electronic signature or similar format), in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument.

APPENDIX  A

Additional Services Terms of Use

The following terms govern Services made available (if made available) under the Agreement and pursuant to an Order.

A1.            Data Pipe

A1.1.        Data Pipe Overview. The Data Pipe service (the “Data Pipe”) is a feature for integrated foodservice distributor entities that provides an a taxonomy and attribution engine to convert Distributor Product Book and SKU data to an eCommerce ready format within C+D’s proprietary superset universal taxonomy.

The Fees for Data Pipe shall be as set forth in the applicable Order.

A2.            Marketing/Rebates

A2.1.        Marketing/Rebates Overview. The Marketing/Rebates services comprise of in-catalog rebates and advertisements. Distributor may publish incentives and digital advertisements within the Distributor Portal and syndicate across the C+D network.

The Fees for Data Pipe shall be as set forth in the applicable Order.

A3.            Endless Aisle

A3.1.        Endless Aisle Overview. Endless Aisle enables Distributor to sell non-stock products directly to Distributor customers.  The Fees for Endless Aisle shall be as set forth in the applicable Order.