Effective: August 26, 2024

THESE DISTRIBUTOR SERVICE TERMS GOVERN THE ACQUISITION AND USE OF THE SERVICES DESCRIBED IN AN ORDER BETWEEN DISTRIBUTOR AND CUT+DRY. 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.

1. Definitions.  

As used in this Agreement:

“Agreement” means these Service Terms.

“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 Platform, 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 Platform by Distributor or end-users but does not include Distributor Materials.

“Customer” means Distributor’s customers who purchase Distributor products through use of the Platform.

“Customer Orders” means orders placed by Customers for Distributor Products through the Platform.

“Cut+Dry,” “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) or on its behalf to Cut+Dry in connection with this Agreement,  uploaded by Distributor or on its behalf to the Platform, 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, information regarding product purchasing and transactions, 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 Platform 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.

“Platform” means Cut+Dry’s subscription software as a service product made available to Distributor under this Agreement, and the databases, software, and other technology used by or on behalf of Cut+Dry to operate the Platform, and the underlying data, Content, information and software code thereof, including Cut+Dry’s proprietary online ordering software platform called Shop, Track, Pay, and Boost by Cut+Dry, which will allow Distributor’s Customers to order products from Distributor.

“Premium Services” means any or all of the premium services described in an Order, including the Shop+ & Boost+ Service, the Track+ Service, and the Pay+ Service. The Premium Services are subject to additional Premium Services Terms of Use attached hereto as Appendix A (the “Premium Service Terms”), which form a part of and are incorporated into this Agreement.

“Professional Services” are certain professional services that are performed by Cut+Dry under an Order.

“Services” means the Platform and if applicable certain products or services related to the Platform, including but not limited to the Premium Services, and Professional Services, each to the extent ordered or activated by Distributor in connection with an Order and made available by Cut+Dry.

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 Platform.

3.1 ERP Integration. Integration with Distributor’s Product Book is required prior to Distributor’s use of the Platform.  In order to effectuate the Services, Cut+Dry will integrate the Platform with Distributor’s existing Product Book (and enterprise resource planning solution (“ERP”) if applicable), including migrating Distributor’s existing online ordering system to the Platform (the “ERP Integration”). Following the completion of the ERP Integration, Cut+Dry will provide Distributor and its Authorized Users access to the Platform. To complete the ERP Integration, Distributor agrees to (a) provide Cut+Dry with the resources and assistance required for completing the ERP Integration; (b) 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; (c) ensure that Distributor has acquired the necessary rights from Distributor’s ERP provider to allow Cut+Dry to integrate the ERP to the Platform; and (d) direct its ERP’s provider to cooperate  with and reasonably 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 Platform and that Cut+Dry will not be liable for any delays in performing the ERP Integration or failure to provide the Platform resulting from the acts or omissions of Distributor or its ERP provider failing to provide information which is required for Cut+Dry to complete the integration.

3.2 Platform 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 Platform solely for Distributor’s internal business purposes.  No implied license(s) are granted herein, and Distributor may not use the Platform 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 Platform licensed, under this Agreement will be set forth in the applicable Order.

3.3 Platform Restrictions.  The Platform constitutes protected copyrighted material and valuable trade secrets of Cut+Dry.  Accordingly, Distributor will not (a) authorize or permit use of the Platform 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 Platform, (c) use or access the Platform for the purpose of building a competitive product, (d) copy, frame, modify or create any derivative works of the Platform (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 Platform is compiled or interpreted, (f) use the Platform 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 Platform, (h) perform or disclose any security testing of the Platform 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 Platform, (l) attempt to gain access to the Platform 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 Platform is intended only to allow Customers and Distributor’s Authorized Users to use the Platform for the purposes set forth in this Agreement and any applicable Order (such as (as applicable to the Order) product marketing, search and purchase and post-purchase order tracking) and that the Platform 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 Platform.

3.4 Access Protocols.  Cut+Dry shall provide to Distributor the necessary access credentials and protocols to allow Authorized Users to access the Platform (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. Each party will promptly notify the other party of any suspected Security Incident or unauthorized access to the Access Protocols that such party becomes aware of.

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

3.6 Products and Fulfillment. Distributor represents and warrants that it will comply, and prepare, sell, market, and fulfill all Distributor Products in compliance, with all federal, state, and local laws, rules, regulations, and standards pertaining to the sale, marketing, safety and delivery of food products and as otherwise applicable to the Distributor’s operation of its business and it will not offer for sale any items prohibited by law. In the event that Distributor includes alcohol in its Distributor Products, Distributor further represents and warrants that it maintains any applicable liquor license or other permits and registrations for the sale, distribution and (if applicable) delivery of alcohol (collectively, “Liquor Licenses”) and will promptly notify Cut+Dry if any Liquor License is not renewed or is revoked, cancelled or surrendered at any time Cut+Dry is providing Distributor Services. As between the parties, Distributor is responsible for any non-performance, non-delivery, misdelivery, theft, or other mistake or act in connection with its product fulfillment processes. Distributor is also responsible for any non-conformity or defect in, any public or private recall of, or safety alert of any of its products or other products provided in connection with Distributor products.

4. Fees and Payment Terms. 

4.1 General. Distributor will pay all applicable fees as set forth in each Order (the “Fees”).  Unless otherwise set forth in the Order, Distributor will reimburse all reasonable expenses Cut+Dry incurs in the performance of the Professional Services which are specified and agreed to in the Order.  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 Customer Order arising from the Platform, such percentage shall be based on the gross amount charged for such Customer Order, including sales and any other applicable taxes attributable to the purchase price (“Net Sales Proceeds”).

4.3 Payment Terms. Unless otherwise set forth in an Order, monthly subscription fees for any Services will be due and payable in advance of each month of Services (no later than 15 days before the start of such month) and set-up fees will be due and payable within 15 days after receipt of the applicable invoice.

4.4 Service 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 specific Services and the use of Platform under this Agreement, including any taxes assessed or required to be collected, paid, or withheld in connection with Distributor’s receipt of the Services, but excluding taxes in respect of Cut+Dry’s net income.

4.5 Customer 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 Customer transactions (“Transaction Taxes”). Cut+Dry may charge and collect Transaction Taxes from Customers as an agent on behalf of Distributor or provide certain sales tax calculations (based on default settings or Distributor instructions) with respect to transactions with Customers as a convenience to Distributor. However, these calculations cannot be relied upon as advice for tax purposes in any federal, state, or local jurisdiction. 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 whether Transaction Taxes apply to Distributor’s transactions with Customers, or 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, such as the Pay+ 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.

5. Confidentiality. 

5.1 Confidential Information.  “Confidential Information” means any and all non-public 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 connection with this Agreement, whether in writing, or in oral, graphic, electronic or any other form, that is either designated as proprietary or confidential or, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary or confidential.  Confidential Information includes the data and software, including both source and object code, comprising the Platform and the terms (including pricing) of any Order.

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 authorized by this Agreement, and (c) will not disclose the Confidential Information of the other party except to such party’s employees, consultants, agents or subcontractors on a “need to know” basis.  Each party will notify the other party promptly upon discovery of any unauthorized use or disclosure of the other party’s Confidential Information.  Further, 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, or (ii) 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 Confidential Information by applicable law, regulation, rule (including rule of a stock exchange), 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, if legally permitted, and provide the other party sufficient opportunity to object to any such disclosure or to request confidential treatment or a protective order (if applicable), at the sole cost of the party whose Confidential Information is being disclosed.

5.5 Any use or disclosure of the other party’s Confidential Information by a Recipient in a manner inconsistent with the provisions of this Agreement may cause the Discloser irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the Discloser may request injunctive or other equitable relief seeking to restrain such use or disclosure. 

6. Intellectual Property Ownership.

6.1. IP Ownership. The Platform constitutes the valuable property and trade secrets of C+D and its licensors. Except for the limited license rights granted herein, Cut+Dry shall own and retain all rights, title and interest in and to Platform, and all improvements, enhancements or modifications thereto and derivatives thereof, including all intellectual property and other proprietary rights in or related to any of the foregoing.

6.2 Distributor’s Trademarks. Distributor hereby grants to Cut+Dry during the term of this Agreement, 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 to Distributor’s customers and to market and/or cross-sell Distributor product offerings to other customers of the Platform.  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. Distributor hereby grants to Cut+Dry a non-exclusive, royalty-free, transferable, perpetual right and license to use, reproduce, modify, distribute, syndicate, publicly display, and create derivative works of Distributor Materials solely in connection with (a) providing the Services and Platform under this Agreement, (b)  the support and improvement of the Platform, (c) monitoring and resolving service, security, support or technical issues with the Platform, (d) building and training Cut+Dry’s machine-learning models to provide the Platform and product taxonomies, and (e) 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 represents and warrants that (f) 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, (g) use of any such Distributor Materials by Cut+Dry, or by Customers, 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 (h) 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 Platform 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 to the extent it is necessary for Cut+Dry to perform Services hereunder 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 Platform 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.

6.4 Personal Information. Cut+Dry will collect, use, retain and process Personal Information contained in Distributor Materials consistent with the Data Protection Addendum attached hereto as Exhibit A 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. 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 Platform to Distributor and its Authorized Users, and for providing and improving Cut+Dry’s products and services.

6.5 Feedback. Feedback. Distributor may from time to time, at its sole discretion, provide Cut+Dry with suggestions, comments or other feedback with respect to the use and operation of the Platform (“Feedback”). Distributor agrees that any such Feedback may be used and otherwise exploited by Cut+Dry for any reason without any obligation or payment to Distributor.

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, (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, and (d) the technology, content and materials used or provided as part of this Agreement (including, with respect to Distributor, the Distributor Materials) will not infringe, constitute the misappropriation of, or otherwise violate, the intellectual property rights or other proprietary rights of any third party.

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 PLATFORM AND ANY SOFTWARE RELATED TO THE SERVICES, ON AN “AS IS” AND “AS AVAILABLE” BASIS 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 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 PLATFORM OR ANY SOFTWARE COMPRISING THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

8.2 EXCEPT FOR LIABILITY ARISING FROM A BREACH OF CONFIDENTIALITY OBLIGATIONS, WILFUL MISCONDUCT OR A PARTY’S INDEMNIFICATION OBLIGATIONS IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, RELATED TO ANY LOSS OF REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. 

8.3 IN NO EVENT SHALL THE AGGREGATE LIABILITY OF CUT AND DRY OR ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING ANY ORDER), WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO CUT+DRY FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

9. Indemnification. 

9.1 Mutual  Indemnity.  Subject to Section 9.3, each party will defend, indemnify and hold the other party harmless from all losses, liabilities, damages and expenses (including reasonable attorneys’ fees and costs) (“Losses”) incurred as a result of any claim, demand, action or proceeding by a third party (a “Claim”) to the extent arising out of or caused by (a) the gross negligence or willful misconduct of the indemnifying party or (b) a breach or alleged breach of the indemnifying party’s representations and warranties herein. In addition, Distributor shall defend, indemnify and hold Cut+Dry harmless from Losses incurred as a result of any Claim to the extent based on Distributor products or services, including the offer, sale, fulfillment, 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.

9.2 Limitations.  A party’s indemnification obligations will not apply to the extent the Claim arises from the indemnified party’s breach of this Agreement or from modifications to or combinations of technology, content or materials that were not provided or authorized by the indemnifying party.  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 the parties’ exclusive remedy for any infringement claims or damages. 

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.  This Agreement commences on the date Distributor first accepts it (by signature) and continues for the length of time referenced in all applicable Orders (the “Term”) until terminated as set forth in this Section. The initial subscription term of the Services procured by Distributor shall continue for the term applicable to such Services specified in the applicable Order. Unless specified otherwise in an Order, the initial term of the Order shall automatically renew for additional, successive thirty-six (36) month periods, 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.

10.2 Termination. If either Distributor or Cu+Dry breaches a material term of this Agreement or any Order and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate (a) in the case of breach of any Order, the Order; or (b) in the case of breach of the Agreement, the Agreement and all Orders have been placed under the Agreement.

10.3 Suspension for Ongoing Harm.  Cut+Dry may suspend Distributor’s access to, or use of, the Services if Cut+Dry believes that (a) there is a significant threat to the functionality, security, integrity, or availability of the Services or any content, data, or applications in the Services; or (b) Distributor is accessing or using the Services to commit an illegal act.  When reasonably practicable and lawfully permitted, Cut+Dry will provide Distributor with advance notice of any such suspension. 

10.4 Effect of Termination.  Orders may include a subscription term that is different from the Term but termination of this Agreement shall also terminate all outstanding Orders. In the event of any termination or expiration, all rights granted to Distributor under the Agreement or the applicable Order will immediately cease. Unless otherwise set forth in the applicable Order, Any outstanding payment obligations will survive any expiration or termination of an applicable Order. Sections 4, 5, 6, 7.1, 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 Platform, 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 12.8.

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, either party 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 unexpected 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 and to the extent not caused by the fault or negligence of the affected party. In the event a party intends to invoke this provision, it shall (i) promptly notify the other party of the cause beyond its reasonable control, the expected duration thereof, and the anticipated effect of such cause on its ability to perform, and (ii) shall make reasonable efforts to mitigate any such effects.

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 Email and Text/SMS Marketing Communications. By providing Cut+Dry with Distributor’s mobile telephone number or email address, Distributor consents to receive email or text messages at that email address or number, as applicable, as requested for account verification and other purposes related to the Cut+ Services, as well as messages from Cut+Dry and its business partners to promote services, products, and features related to the Services that may be of interest to Distributor or to solicit Distributor’s opinion for market research purposes. While Cut+Dry does not charge a fee for text messages, Distributor’s carrier may charge standard messaging, data, and other fees. Distributor is responsible for these charges. Cut+Dry may send and receive text messages through cellular telephone operators or other networks, and the level of reliability may vary. Cut+Dry is not responsible for the timeliness or final delivery of the messages, as this is out of Cut+Dry’s control and is the responsibility of the cellular telephone operator or other networks. To the extent Cut+Dry provides to Distributor, or Distributor receives through use of the Services, any Customer mobile phone numbers or email addresses, Distributor agrees to comply with all laws applying to electronic marketing when using any Customer mobile phone number or email address and, specifically, that Distributor will not send unsolicited commercial emails in violation of the CAN-SPAM Act (2003), as the same may be amended, modified, or replaced, or otherwise send any commercial messages in violation of Applicable Law and Rules, including without limitation the Telephone Consumer Protection Act of 1991 (“TCPA”), as the same may be amended, modified, or replaced. NOTWITHSTANDING THE CAPABILITY OF THE SERVICES TO COLLECT AND STORE CUSTOMER INFORMATION AND TO ALLOW CUSTOMER TO ELECT TO RECEIVE MARKETING MATERIALS FROM DISTRIBUTOR AND CUT+DRY, APPLICABLE LAW AND RULES MAY LIMIT THE USE OF SUCH INFORMATION ONCE COLLECTED, EVEN IF CUSTOMER HAS PROVIDED CONSENT, AND THE DISCLOSURE OF SUCH INFORMATION TO THIRD PARTIES. DISTRIBUTOR SHALL AT ALL TIMES COMPLY WITH SUCH APPLICABLE LAW AND RULES.

12.8 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 and provided that Cut+Dry does not agree to waive the Agreement Change for such Distributor.

12.9 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.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.

12.11 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. 

12.12 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
Premium Services Terms of Use

The following terms govern Shop+ & Boost+ Service, the Track+ Service, and the Pay+ Service.

A1. THE SHOP+ & BOOST+ SERVICE

a.   Shop+ & Boost+ Service Overview. The Shop+ & Boost+ Service provides an enhanced e-commerce product marketing, search and discovery experience for Distributor’s Customers through the following functionality:

• • Taxonomy and attribution engine to convert Distributor Product Book and marketing collateral to an eCommerce ready format;

• • Rich content such as photography, gifs, and detailed product descriptions;

• • Customer order management;

• • Boost+ marketing services for both foodservice distributors and manufacturer suppliers;

• • Distributor Supplier Portal (access to Shop+ & Boost+ Product catalog, data analytics, unified communication platform).

b.  Sales; Fulfillment; Customer Service. Distributor is the seller of record of Distributor Products. Distributor shall (a) offer, sell and fulfill Distributor Products in accordance with the terms of this Agreement and the information about its Products provided to Customers on the Platform at the time of sale; (b) cancel your Customer Orders as permitted pursuant to terms and conditions appearing on the Platform at the time of the applicable order; and (c) identify itself as the seller of each of the Products in all information included, or provided in connection, with Distributor Products. Distributor remains fully responsible for its fulfillment of any Distributor Products purchased by Customers via the Shop+ & Boost+ Services, the invoicing and collection of amounts owed by Customers for purchases (unless Distributor subscribes to the Pay+ Services), and any returns, mistakes or other customer service issues arising from the Distributor Products (without derogating from Distributor’s obligations as further set forth in the Agreement). For example, the coordination and cost of return shipping for a Distributor Product (in connection with a Customer complaint to Distributor) is the Distributor’s responsibility. Distributor is also responsible for 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). For the avoidance of doubt, Distributor is solely responsible for all customer service issues relating to Distributor Products, including pricing, order fulfillment, order cancellation, returns, refunds and adjustments, rebates, functionality and warranty, technical support, and feedback concerning experiences with Distributor personnel, policies, or processes. In performing customer service, Distributor will always present itself as a separate entity from Cut+Dry.

c. Publicity. During the term of the Shop+ & Boost+ Service, Distributor grants Cut+Dry, its affiliates, a non-exclusive, nontransferable, worldwide, revocable license to use Distributor’s trade names, trademarks, logos, service marks, and other identifying marks for the purposes of  promoting (such as marketing or advertising) of Distributor’s products in connection with the Shop+ & Boost+ Service on the Platform. That promotion may include advertisements and other marketing materials shared publicly or with targeted third parties such as prospective Distributor customers.

A2.  THE PAY+ SERVICE

a. Pay+ Service Overview. The Pay+ Service comprises of automated invoicing and Transaction Processing Services (defined below) that extract detailed data from Distributor’s physical or digital invoices (“Data Extraction”) and give Customers the ability to complete payment for Distributor Product purchases on the Platform via credit card or ACH (“Automated Orders”). Upon submission of an order for a Distributor Product Customer will immediately receive a digitized order invoice (a “Digitized Invoice”) and be able to review pending, delivered and paid invoices by accessing their Customer account on the Platform. Through the Platform Cut+Dry facilitates the payments by Customers of one or more Digitized Invoices (via credit card or ACH) and payment is remitted to Distributor’s authorized financial institution. The Fees for the Pay+ Service shall be as set forth in the applicable Order.

b. Appointment of Agent. For each Automated Order, Distributor authorizes Cut+Dry (via its relationship with banking partners) to act as its agent for purposes of processing payments, refunds and adjustments for the applicable Automated Order, receiving and holding Net Sales Proceeds on Distributor’s behalf, remitting the Net Sales Proceeds (less any Fees or applicable taxes) to Distributor’s bank account, and paying Cut+Dry amounts Distributor owes to Cut+Dry under this Agreement (the “Transaction Processing Services”). Distributor agrees that Customers satisfy their obligations to Distributor for the Customer Orders in full when Cut+Dry’s banking partner receives the Net Sales Proceeds. As such, the Distributor is obligated to the Customer on all funds accepted by Cut+Dry within the scope of its agency. Cut+Dry may establish a reserve on Distributor’s account based on Cut+Dry’s assessment of risks to it or third parties posed by Distributor actions or performance and Cut+Dry may modify the amount of the reserve from time to time in its sole discretion. Net Sales Proceeds from Automated Orders will be credited to Distributor’s available balance when they are received by Cut+Dry.

c. Payout of Sales Proceeds. Net Sales Proceeds arising from Customer Orders such Net Sales Proceeds will be delivered to the Distributor (via direct bank deposit or check or other method agreed to by the parties), less Cut+Dry’s Fees, and any taxes that Cut+Dry automatically calculates, collects and remits to a tax authority according to applicable law (the “Transaction Fee”). To protect Cut+Dry from risk of liability for Distributor actions as a seller, Cut+Dry’s banking partners may require reserves or restrict access to funds in Distributor’s account based on certain factors, including, but not limited to, Distributor selling history, Distributor performance, returns, or transaction value. Cut+Dry will, with its banking partners, arrange to settle funds to the bank or other financial institution account that Distributor designates (the “Payout Account”). To refund or credit the Customer or otherwise reverse a Customer Order, Distributor (as seller) authorizes Cut+Dry or its banking partners to debit the applicable refund, credit or reversal amount (in same or other currency) from Distributor’s account.

d. Authorizations. From time to time the Platform may offer features enabling Distributor to add Customer payment method(s) to the Platform, enable automatic payment of charges to a Customer’s account, or otherwise charge Customer Orders against a Customer account (“Customer Charges”). In connection with such Customer Charges Distributor represents and warrants that (i) any payment method information Distributor provides is accurate, (ii) Distributor has obtained the authorization of the Customer and any other third party individual, corporation or other entity and otherwise has all necessary rights, licenses, consents or permissions to effectuate the Customer Charge on the Platform, (iii) it has and will maintain the a copy of each authorization for such period of time as required by payment card or National Automated Clearinghouse Association regulations and applicable law, (iv) it will provide Cut+Dry with copies of any such authorizations upon request, and (v) the Customer Charge against the Customer’s payment method(s) does not conflict with any agreement or law or regulation to which Distributor is bound. Distributor agrees to indemnify and hold Cut+Dry harmless for all chargebacks, reversals, and other losses, costs and expenses which Cut+Dry pays or incurs resulting from breach by Distributor of the foregoing representations and warranties.

e. Invoice Automation. Distributor agrees that the invoice automation component of the Pay+ Service extracts data from the invoices provided to Cut+Dry from Distributor or collected by Cut+Dry and Distributor is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of such data, including line item pricing, that is subject to Data Extraction or any other component of invoice automation.

A3.  THE TRACK+ SERVICE

Track+ Service Overview. The Track+ Service provides a suite of logistics technology services to optimize the post-purchase delivery and fulfillment process through a cloud-based online software solution. Features vary depending on Distributor’s needs and infrastructure and the fees arrangement, but may include:

• • Customer Insights
    • • Delivery Tracking (the freight location of ordered Distributor Products)
    • • Dropoff Confirmation
    • • Invoice Confirmation

• • Cut+Dry Insights
    • • Delivery Routing
    • • Dropoff Confirmation
    • • Route Optimization
    • • Local Area Aggregation
    • • Drop Size Incentives

EXHIBIT A
DATA PROTECTION ADDENDUM

1. In the event of a conflict between any provisions of the Agreement and the provisions of this DPA, the provisions of this Data Protection Addendum (this “DPA”) shall govern and control. 

2. Consumer Privacy Laws and Regulations. C+D acknowledges that  Distributor and/or the data it holds may be subject to consumer privacy laws and regulations, as well as common law restrictions and/or obligations (the “Consumer Privacy Laws”). Consumer Privacy Laws may include, but it is not limited to, laws, and associated regulations or guidance, such as pursuant to  the California Consumer Privacy Act (the “CCPA”) and California Privacy Rights Act (“CPRA”, as codified in California Civil Code sections 1798.100, et seq., (collectively, “CCPA/CPRA”), the Virginia Consumer Data Privacy Act, the Colorado Privacy Act, the Connecticut Data Privacy Act, the Utah Consumer Privacy Act, and other similar laws currently in effect or that may come into effect during the term of the Agreement, all as applicable and as may be amended from time to time.

3. Relationship.  Based on C+D’s relationship with Distributor, C+D is considered a “service provider,” “contractor,” or “processor” (collectively, “Processor”) under the Consumer Privacy Laws. As a Processor, C+D may process and/or receive “personal information” or “personal data,” as such terms are defined in applicable Consumer Privacy Laws, from, or on behalf of, Distributor (such personal information or personal data is herein referred to as “Personal Information”). Personal Information will include all such personal information contained in Distributor Material as defined in the Agreement.

4. C+D Requirements. C+D will adhere to the following requirements:

4.1 C+D will comply with all Distributor’s instructions regarding the processing of Personal Information.

4.2 C+D will not “sell” or “share,” as defined by applicable Consumer Privacy Laws, Personal Information.

4.3 Distributor is providing C+D access to Personal Information for the limited and specific purposes provided in Section 6.1 of this DPA, and/or as otherwise expressly permitted by Consumer Privacy Laws. C+D shall not retain, use, or disclose Personal Information for any other purpose(s).

4.4 C+D shall not retain, use, or disclose Personal Information for any “commercial purpose” other than the Distributor purposes specified in Section 6.1 of this DPA.

4.5 C+D shall not retain, use, or disclose Personal Information outside of the direct customer relationship between C+D and Distributor.

4.6 C+D shall not combine or update Personal Information with any other information, except as provided for under Consumer Privacy Laws.

4.7 C+D shall comply with all applicable laws and obligations regarding the use and protection of Personal Information, including all Consumer Privacy Laws.

4.8 C+D shall assist the Distributor in meeting the Distributor’s obligations in relation to the Personal Information and protect the Personal Information as follows:

1. 1. processing Personal Information solely to the extent the processing is necessary, reasonable, and proportionate to the specific purpose(s) listed in Section 6.1 of this DPA or otherwise permitted by Consumer Privacy Laws;
   2. cooperating with Distributor in responding to and complying with verifiable consumer requests made pursuant to Consumer Privacy Laws, insofar as this is possible;
   3. implementing reasonable security procedures and practices to protect the Personal Information from unauthorized or illegal access, destruction, use, modification, or disclosure while in possession of C+D in accordance with California Civil Code section 1798.81.5 and other states’ similar requirements, including but not limited to technical and organizational measures appropriate to the nature of the Personal Information and risk to the same. C+D shall be fully responsible for implementing such measures on all systems C+D uses for processing Personal Information, and Distributor shall be fully responsible for implementing such measures on all systems Distributor uses for processing Personal Information that are not operated by C+D; and
   4. providing notification of any actual Security Event related to any system, platform, or process that C+D and its employees or contractors use to process Personal Information.

4.9 For purposes of this DPA, a “Security Event” means an unauthorized access or acquisition of Personal Information, or circumstances that C+D reasonably determines would place Personal Information at risk. To assist Distributor in relation to any Personal Information breach notifications it is required to make, C+D shall report any actual Security Event to Distributor without undue delay.

4.10 If C+D receives any subpoena, judicial, administrative or arbitral order of an executive or administrative agency, regulatory agency, or other governmental authority, which relates to the processing of personal information (“Disclosure Request”), it will promptly pass on such Disclosure Request to Distributor, unless otherwise required by applicable law. C+D expressly reserves the right to respond to such Disclosure Request as it deems reasonably appropriate.

4.11 C+D shall ensure that each person processing Personal Information is subject to a duty of confidentiality with respect to such Personal Information.

4.12 If C+D engages any other person or entity to assist it in processing Personal Information for purposes of providing the services enumerated in the Agreement, C+D shall: (a) provide Distributor with the opportunity to object to that proposed engagement at least five day(s) in advance; and (b) ensure that the engagement complies with all Consumer Privacy Laws and is pursuant to a written contract binding such party to observe all requirements regarding Personal Information and Distributor’s rights in relation to the same, as laid out herein.

4.13 Unless otherwise required by law, C+D will delete and destroy Personal Information, and all copies of the same, by using the secured deletion capability provided by the Third Party Hosting Provider (defined below) to delete the virtual machines, databases and other resources used to process Personal Information for Distributor upon expiration or termination of the applicable Order.

4.14 Upon the reasonable request of Distributor, C+D shall make available to Distributor all information necessary to demonstrate Cut +Dry’s compliance with all Consumer Privacy Laws or to enable Distributor to conduct and document any required data protection assessments.  

4.15 C+D shall notify Distributor if C+D determines it can no longer meet any of its Consumer Privacy Laws obligations.

5. Data Processing and Security. Transmission of data to and from C+D is performed using industry standard data encryption techniques. During processing, C+D will maintain Personal Information contained in Distributor Materials in a secure fashion aligned with industry standards for the management and processing of private consumer information. Industry security standards typically consist of security procedures (including without limitation firewall and password protected systems to prevent access to cloud-based systems used to process the data by unauthorized personnel), and maintenance of physical, electronic and procedural safeguards to guard the integrity and privacy of such data.   C+D shall be responsible for providing industry standard system and data security in connection with the Platform and services and will use commercially reasonable efforts to prevent unauthorized access to or the creation of any unauthorized copies of any Personal Information   in any form including, without limitation, by C+D’s employees or contractors.

6. Description of Processing.

6.1 Nature and Purpose of Processing. The processing of Personal Information is for the following Distributor purposes, in accordance with the Agreement:

1. 1. processing Personal Information solely to the extent the processing is necessary, reasonable, and proportionate to the spe
   2. Short-term, transient use, including, but not limited to, non-personalized advertising shown as part of an individual’s current interaction with the Distributor, provided that the individual’s Personal Information is not disclosed to another third party and is not used to build a profile about the individual or otherwise alter the individual’s experience outside the current interaction with the Distributor.
   3. Performing services on behalf of the Distributor, including maintaining or servicing accounts, providing customer service, processing or fulfilling orders and transactions, verifying customer information,  processing  payments, providing analytic services, or providing similar services on behalf of the Distributor.
   4. Performing payment processing services on behalf of the Distributor.

6.2 Type of Data Involved in Processing. Depending on how the Distributor chooses to use the Platform and the additional services subscribed by Distributor, C+D may process the following types of Personal Information:

1. 1. Data related to Distributor Customers: Personal Information of the Customers  of the Distributor, including name, address, email address, mobile number, and transactional information, such as items purchased, amount spent, location and time where purchase took place, IT information (location data, IP address, cookie ID, etc.) and marketing, product, and other preference information.
   2. Data related to Distributor’s representatives: Personal Information of representatives of Distributor, including name, business contact information, username, and password and IT information (location data, IP address, cookie ID, etc.).

6.3 Duration of Processing. C+D shall process Personal Information until the date of expiration or termination of the Order, unless instructed otherwise by Distributor, or until such data is de-identified or deleted and destroyed on instruction of Distributor.

7. Security Events.

7.1 Security Events Caused by C+D. In the event a Security Event (as defined in Section 4.9 of this DPA) is caused by C+D’s violation of law, breach of the Agreement or applicable Order, or the negligent acts or omissions or wilful misconduct of C+D or any employee or contractor for which C+D is responsible, then C+D will pay reasonable costs of remediation and notification relating to such Security Event (subject to the greater of the limits set forth in Section 8.0 (Disclaimer and Limitations on Liability) in the Agreement and any available insurance coverage) .

7.2 Security Events Caused by Distributor.  In the event a Security Event is caused by Distributor’s violation of law, breach of the Agreement or applicable Order or a third party agreement, or the negligent acts or omissions or wilful misconduct of any employee or contractor of Distributor, its affiliates or any person for which Distributor or its affiliates are responsible, then all costs of remediation and reporting shall be borne by Distributor, and Distributor will indemnify, defend, and hold C+D harmless from any third party suit resulting from such Security Event.

7.3 Security Events with Joint Causation.  In the event the cause of a Security Event is joint, Distributor and C+D will share the indemnification obligations and costs (subject to the greater of the limits set forth in Section 8.0 (Limitations on Liability) of the Agreement and any available insurance coverage)) pro rata based on a mutually agreed allocation of fault. 

7.4 Right to Terminate.  In the event of any Security Event due to a breach of the Agreement or applicable Order by C+D or the negligent act or omission or wilful misconduct of C+D or any employee, contractor, or other person for which C+D is responsible, Distributor may terminate the Agreement and all outstanding Orders without penalty upon thirty (30) days’ notice to C+D, in which event Distributor will receive a refund of any pre-paid fees unearned as of the date of such termination.

7.5 Duty to Safeguard Keys and Reliance on Industry Standards.  For avoidance of doubt, in no event will C+D bear any liability whatsoever for any Security Event resulting in whole or in part from (i) Distributor’s failure to safeguard its keys, passwords, systems, facilities, networks, equipment, databases or access credentials, or (ii) any exploit to any encryption protocol or standard correctly implemented by C+D or any operating system or system software exploit of any up-to-date system software or firmware utilized by C+D in providing the Services, or (iii) Distributor’s violation of any law or agreement or privacy policy to which it is subject, or any wilful misconduct of Distributor or its employees.

7.6 Exclusive Remedy.  The remedies for Security Events set forth in this Section 7.0 (Security Events) shall be Distributor’s exclusive remedies in the event of a Security Event.

8.0 Additional Terms.

8.1 Third Party Hosting Providers.  C+D utilizes third party hosting providers to provide the Services (a “Third Party Hosting Provider”).  In each case, the resources utilized for providing the Platform for Distributor shall be specific to Distributor and shall not be used for processing data for other C+D Distributors.  Distributor acknowledges and agrees that C+D may use Amazon Web Services (“AWS”) or an equivalent Third Party Hosting Provider as a subprocessor. Distributor further understands and agrees that C+D is subject to standard terms and conditions with respect to such commercial arrangements, and expressly approves the standard agreement with such Third Party Hosting Providers as a sub-processor agreement.

8.2 Right to Monitor.  C+D grants Distributor the right to take, and C+D shall allow and contribute to, appropriate and reasonable steps to monitor so as to ensure Cut +Dry’s use of Personal Information is consistent with all privacy rights and obligations, whether statutory, regulatory, based in common law, contractual, or otherwise.

8.3 Right to Remediate.  C+D grants Distributor the right, upon notice, to take reasonable and appropriate steps to stop and remediate unauthorized use of Personal Information. 

8.4 Disputes. Any disputes arising from or in connection with this DPA shall be brought as set forth in the Agreement.