WHEREAS, 3×3 Insights provides services to retailers of alcoholic beverages, as more particularly described herein (the “Services”), and Retailer wishes to retain 3×3 Insights to provide such services, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Defined Terms.Capitalized terms used but not otherwise defined herein shall have the following meanings:
a. “Deliverables” shall mean all documents, work product, and other materials that are delivered to Retailer hereunder by or on behalf of 3×3 Insights in connection with the Services.
b. “Portal” shall mean 3×3 Insights’ Data Bar available through a link provided by 3×3 Insights.
c. “Pre-Existing Materials” shall mean 3×3 Insights’ pre-existing materials consisting of documents, data, know-how, methodologies, software, and other materials, including computer programs, reports, and specifications, in each case developed or acquired by 3×3 Insights prior to the commencement or independently of this Agreement.
d. “Retailer’s Materials” shall mean Retailer’s information, documents, samples, products, trademarks, logos, customer information, loyalty information or other material.
2. Fees, Costs and Taxes. All fees payable by Retailer under this Agreement are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on such amounts. 3×3 Insights shall be responsible for any taxes imposed on, or with respect to, 3×3 Insights’ income, revenues, gross receipts, personnel, or real or personal property, or other assets. Retailer shall be solely responsible for the payment of any sales and use taxes assessed against the sale of Retailer’s goods and/or services.
3. Third Party Providers. 3×3 Insights, in its sole discretion, may enter into agreements with or otherwise engage any person or entity who is not a 3×3 Insights employee, including any independent consultant, contractor, subcontractor, or affiliate of 3×3 Insights (each, a “Third Party Service Provider”), to provide any Services to Retailer in connection with this Agreement without the prior consent of Retailer and without notice to Retailer. Nothing contained in this Agreement shall create any contractual relationship between Retailer and any 3×3 Insights Third Party Service Provider or any other subcontractor or supplier of 3×3 Insights.
4. No Exclusivity. 3×3 Insights retains the right to perform the same or similar type of services to the Services provided hereunder for third parties during the Term of this Agreement (including without limitation competitors of Retailer).
5. Compliance. Each Party shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits materially necessary to conduct that portion of its business relating to the exercise of its rights and the performance of its obligations under this Agreement.
6. No Guaranty. The parties hereto acknowledge and agree that 3×3 Insights cannot guarantee the results or effectiveness of any of the Services rendered or to be rendered by 3×3 Insights. Rather, 3×3 Insights shall conduct its operations and provide the Services in a professional manner and in accordance with industry practice.
7. DISCLAIMER OF WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN, THE SERVICES ARE MADE AVAILABLE “AS IS” AND “AS AVAILABLE” AND NEITHER 3X3 INSIGHTS, NOR ANY OTHER PERSON ON ITS BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE.EXCEPT AS SPECIFICALLY PROVIDED HEREIN, 3X3 INSIGHTS HEREBY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. 3X3 INSIGHTS SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE CONTROL OF 3X3 INSIGHTS.
a. Retailer Indemnification Obligations. Retailer shall defend, indemnify, and hold harmless 3×3 Insights, and its officers, directors, members, managers, employees, agents, affiliates, successors, and permitted assigns (collectively, “3×3 Insights Indemnified Party”), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (collectively, “Losses”) arising out of or resulting from any third-party claim or direct claim alleging:
i. material breach by Retailer or its personnel of any representation, warranty, covenant, or other obligations set forth in this Agreement;
ii. gross negligence or more culpable act or omission of Retailer or its personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;
iii. that any of Retailer’s webpages, products, goods or services promoted pursuant to this Agreement, Retailer Materials, Retailer’s Intellectual Property or any use of the foregoing alleging that any of the foregoing by 3×3 Insights or any third party (i) infringes the intellectual property rights of any third party, (ii) contains software viruses, worms, Trojan horses, time bombs, cancelbots or other harmful computer code, files, scripts, agents, programs or programing routines (collectively, “Harmful Code”), or (iii) violates applicable law; or
iv. Retailer’s violation of applicable law or use of the Services, Deliverables, data contained in any Deliverables or any Pre-Existing Materials in a manner not permitted under this Agreement.
b. 3×3 Insights Indemnification Obligations 3×3 Insights shall defend, indemnify, and hold harmless Retailer, and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Retailer Indemnified Party”), from and against any and all Losses, arising out or resulting from any third-party claim alleging:
i. material breach by 3×3 Insights or its personnel of any obligations set forth in this Agreement;
ii. gross negligence or more culpable act or omission of 3×3 Insights or its personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; or
iii. that any of the Services or Deliverables or Retailer’s receipt or use thereof infringes any Intellectual Property of a third party.
c. Limitations Notwithstanding anything to the contrary in this Agreement, 3×3 Insights shall have no obligations to indemnify or defend Retailer against any Losses arising out of or resulting, in whole or in part, from infringement claims relating to:
i. any Retailer Materials or any instruction, information, designs, specifications, or other materials provided by Retailer in writing to 3×3 Insights;
ii. Retailer’s use of the Deliverables in combination with any materials or equipment not supplied to Retailer or specified by 3×3 Insights in writing, if the infringement would have been avoided by the use of the Deliverables, Pre-Existing Materials or Intellectual Property of 3×3 Insights not so combined
iii. any modifications or changes made to the Deliverables by or on behalf of any person other than 3×3 Insights or 3×3 Insights Personnel; or
iv. any Third-Party Materials or use thereof
d. Procedures. A party seeking indemnification under this Agreement (the “Indemnified Party”) shall give the Party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (b) reasonable cooperation, at the Indemnifying Party’s expense, in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
9. Term and Termination.
a. Termination for Cause. If there is a breach of this Agreement, either Party may terminate this Agreement by sending a written notice of the breach to the breaching party stating the nature of the breach. The termination shall become effective on the fifth (5th) day after receipt of the notice if the breaching party has failed to remedy the breach.
b. Effects of Termination. Upon cancellation or termination of the Services by either party for any reason: (i) we will cease providing you Services and you will no longer be able to access your account; (ii) unless otherwise provided in these Terms, you will not be entitled to any refunds, and you shall pay us all unpaid amounts owing. All provisions of the Terms that by their nature are intended to survive, including but not limited to any disclaimer of warranty and limitation of liability provisions, shall survive the termination or expiry of this Agreement.
10. Intellectual Property. Subject to the terms herein and the licensed granted herein, all intellectual property belonging exclusively to each Party as of the execution of this Agreement, including but not limited to trademark, copyright, trade secret, and patent rights, whether registered or unregistered and whether registrable or unregistrable, as well as any derivative works, inventions or improvements made thereto or derived therefrom during or following the Term (collectively, the “Intellectual Property” of each Party), shall remain at all times during and following the Term of this Agreement the exclusive property of such respective Party.
11. Notices; Amendment and Modification; Incorporation by Reference. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and, with regard to 3×3 Insights, addressed to the address set forth at the outset of this Agreement and, with regard to Retailer, addressed to the address provided by Retailer to 3×3 Insights through the Portal. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. This Agreement incorporates by reference and shall be deemed to include the representations and agreements made by Retailer through the Portal.
12. Waiver. No waiver by either Party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
13. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York, without giving effect to any choice or conflict of law provision. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the license(s) granted hereunder may be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York, NY, and each Party irrevocably submits to the exclusive jurisdiction of such courts.
14. Assignment. Retailer may not assign or transfer any of its rights or delegate any of its obligations hereunder without the prior written consent of 3×3 Insights. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns. 3×3 Insights may assign this Agreement at anytime in its sole discretion.
15. Addendums; Entire Agreement. All Addendums attached hereto and all Addendums later agreed to or accepted by the Parties, are hereby incorporated herein. This Agreement together with any Order Forms issued after the date hereof, and any Addendums constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
16. Force Majeure. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (the “Impacted Party”) reasonable control, including, without limitation, the following force majeure events (each, a “Force Majeure Event”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other events beyond the reasonable control of the Impacted Party.
17. Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. 3×3 Insights is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.
DIGITAL MARKETING SERVICES ADDENDUM
This Digital Marketing Services Addendum (this “Addendum”), is hereby incorporated by agreement into that certain General Agreement (the “General Agreement” and together with this Addendum and all other Addendums incorporated into such General Agreement, the “Agreement”) by and between 3×3 INSIGHTS LLC, a Delaware limited liability company with offices located at 712 5th Avenue, 7th Floor, New York, New York 10019 (“3×3 Insights”), and Retailer (as defined in the General Agreement). To the extent that any provision in this Addendum conflicts with any provision of the General Agreement, the provision hereof shall govern and shall nullify any conflicting language within the General Agreement. Capitalized terms not defined herein shall have the same meaning as ascribed to them in the General Agreement.
1. 3×3 Insights Services and Responsibilities.
a. Marketing & Campaigns Services. 3×3 Insights shall use commercially reasonable efforts to run online digital marketing advertisement campaigns (each a, “Campaign” and collectively “Campaigns”) including through publishing advertisements on third party platforms on behalf of Retailer (“Marketing Services”).
b. Status Reports. For each Campaign, 3×3 Insights shall provide periodic performance indicator reports through the Portal or other electronic means (for example, email).
2. Retailer Obligations and Responsibilities. Retailer shall:
a. Provide copies of or access to Retailer’s Materials as 3×3 Insights may reasonably request in order to carry out the Marketing Services in a timely manner, and ensure that they are complete and accurate in all material respects. Retailer and its licensors are, and shall remain, the sole and exclusive owner of all right, title, and interest in and to all of Retailer’s Materials.
b. Respond promptly to any 3×3 Insights request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for 3×3 Insights to perform the Marketing Services in accordance with the requirements of this Agreement.
3. Intellectual Property Rights; Ownership.
a. License to Certain Retailer Intellectual Property. Subject to and in accordance with the terms and conditions of this Agreement, Retailer grants 3×3 Insights and its affiliates and Third Party Service Providers a limited, non-exclusive, royalty-free, transferable, and sublicensable, worldwide license during the Term to use Retailer’s Intellectual Property solely to the extent necessary to provide the Marketing Services to Retailer.
b. Ownership of and License to Deliverables. Subject to and in accordance with the terms and conditions of this Agreement, Retailer grants 3×3 Insights and its affiliates and Third Party Service Providers a limited, non-exclusive, royalty-free, transferable, and sublicensable, worldwide license during the Term to use Retailer’s Intellectual Property solely to the extent necessary to provide the Marketing Services to Retailer.
(a) As between Retailer and 3×3 Insights, all Intellectual Property and all other rights in and to all the Deliverables and the Pre-Existing Materials shall be owned by 3×3 Insights. 3×3 Insights hereby grants a perpetual, limited, non-exclusive, royalty-free, non-transferable, and non-sublicensable, worldwide license to use all such rights to the extent necessary to enable the Retailer to make reasonable use of the Deliverables and the Marketing Services.
(b) In the course of providing the Marketing Services, 3×3 Insights will be using certain Pre-Existing Materials. 3×3 Insights and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Pre-Existing Materials, including all Intellectual Property therein. 3×3 Insights hereby grants Retailer a perpetual, limited, royalty-free, non-transferable, non-sublicensable, worldwide license to use, perform, display, execute, reproduce, distribute, transmit, modify (including to create derivative works), import, make, have made, sell, offer to sell, and otherwise exploit any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables solely to the extent reasonably required in connection with Retailer’s receipt or use of the Marketing Services and Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by 3×3 Insights.
(c) In the course of providing the Marketing Services, 3×3 Insights will be using certain third-party materials consisting of documents, data, content, or specifications of third parties, and components or software including open source software that are not proprietary to 3×3 Insights (collectively, the “Third-Party Materials”), Retailer shall have a limited, royalty-free, non-transferable, non-sublicensable, worldwide license to use the Third-Party Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables solely to the extent reasonably required in connection with Retailer’s receipt or use of the Marketing Services and Deliverables. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants to Retailer or any third party, any Intellectual Property rights in the Third-Party Materials, by implication, waiver, estoppel, or otherwise.
4. Fees and Payment Obligations.
a. Fees. In consideration of the provision of the Marketing Services and the rights granted to Retailer under this Agreement, Retailer shall pay 3×3 Insights the fees provided for on Exhibit A in accordance with the payment and term schedule described on Exhibit A (the “Marketing Service Fees”). If any Marketing Services are later added to this Agreement through an order form provided by 3×3 Insights (“Order Form”) or the through the Portal, the Fees provided for on such Order Form or through the Portal shall be deemed “Marketing Services Fees” hereunder. The amounts set forth in Exhibit A are inclusive of any costs of materials or other expenses of 3×3 Insights in providing the Marketing Services. At the time when there is a fee due from Retailer to 3×3 Insights hereunder, Retailer must provide credit or debit card information to 3×3 Insights (the “Payment Card”). In providing such information to 3×3 Insights, the Retailer is certifying that the Payment Card is Retailer’s own account or that Retailer is fully authorized to use this account to purchase the Services. Retailer understands and agrees that 3×3 Insights will retain the Payment Card on file to process payment for future Marketing Service Fees for any Renewal Terms (if applicable based on the Services provided to Retailer) and authorizes 3×3 Insights to share the Payment Card with financial institutions and payment processing firms in order to process such payments. If payment becomes expired or cancelled or fails to authorize for any reason, 3×3 Insights will immediately suspend Retailer’s access to the Marketing Services until such time as Retailer has provided new debit or credit card information to 3×3 Insights and all then-due fees are paid in full. If Retailer fails to do so, 3×3 Insights reserves the right to terminate the Marketing Services. Retailer shall pay interest on all late payments, calculated daily and compounded monthly at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law. Retailer shall also reimburse 3×3 Insights for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
b. Renewal. Retailer agrees to purchase the Marketing Services as an automatically renewing subscription for each Renewal Term. 3×3 Insights will process payment of the Marketing Service Fees for the subsequent Renewal Term on the last day of the then-current Term.
c. Fee Modifications. Notwithstanding the foregoing, 3×3 Insights reserves the right to modify the Marketing Service Fees, at its sole discretion, with or without prior notice to Retailer.
5. Term; Termination; Subscription.
a. Fee Modifications. The term of this Agreement commences on the Effective Date and continues for one calendar month hereafter unless earlier terminated in accordance with the terms of this Agreement (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew on the one month anniversary of the Effective Date, the Renewal Date, and for successive one month periods unless either Party provides written notice of nonrenewal at least fifteen (15) days prior to the end of the then-current term (each a “Renewal Term”and, together with the Initial Term, the “Term”), or unless sooner terminated as provided herein. If the Term is renewed for any Renewal Term(s) pursuant to this Section, the terms and conditions of this Agreement during each such Renewal Term shall be the same as the terms and conditions in effect immediately prior to such renewal, subject to (i) any change in the Marketing Service Fees payable hereunder by Retailer during the applicable Renewal Term as set forth herein, or (ii) any change in the Marketing Services to be provided by 3×3 Insights pursuant to any applicable Order Form. If either Party provides timely notice of its intent not to renew this Agreement, then, unless otherwise sooner terminated in accordance with its terms, this Agreement shall terminate on the expiration of the then-current Term.
6. Representation and Warranties.
a. Each Party represents, warrants, and covenants that:
(a) it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement;
(b) this Agreement has been executed and delivered by such Party and (assuming due authorization, execution, and delivery by the other Party) constitutes the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms; and
(c) it is now and through the Term shall remain in compliance with all laws applicable to the performance of its obligations under this Agreement.
b. Retailer represents, warrants, and covenants to 3×3 Insights that:
(a) any and all elements of the Retailer Materials, or any of Retailer’s Intellectual Property that Retailer provides to 3×3 Insights for any purpose related to the Services, are owned by Retailer, or Retailer has received permission from the rightful owner(s) to use each of the elements for the purposes set forth in this Agreement; and
(b) none of Retailer’s Materials provided in electronic form by Retailer to 3×3 Insights contain or will contain any (i) trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access or to disable, erase, or otherwise harm any computer, systems or software, or (ii) any time bomb, drop dead device or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of a person other than an authorized licensee or owner of a copy of the program or the right and title in and to the program.
7. LIMITATIONS OF LIABILITY. IN NO EVENT WILL 3×3 INSIGHTS BE LIABLE IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA OR BREACH OF DATA, RETAILER’S COMPUTER SYSTEMS OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICESIN NO EVENT WILL 3×3 INSIGHTS’ AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, EXCEED THE LESSER OF THREE MONTHS WORTH OF FEES PAID BY RETAILER TO 3X3 INSIGHTS OR ONE THOUSAND DOLLARS ($1,000).
EXHIBIT A TO
DIGITAL MARKETING SERVICES ADDENDUM
Marketing Services Fees
Fixed monthly budget.
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