Platform Terms and Conditions
Accelpay has developed a proprietary software-as-a-service platform and related e-commerce tools to market products to consumers via liquor brand websites and to provide such liquor brands with related consumer data. Accelpay connects consumers to third-party retailers licensed to sell alcoholic beverages (“Retailers”). When consumers purchase products via Accelpay’s tools, they are purchasing such products from these Retailers.
- USE OF THE ACCELPAY SERVICE
- Access. During the Term (as defined below), Accelpay will make available to Brand: (i) Accelpay’s software-as-a-service brand portal (the “Accelpay Platform”); and (ii) its embeddable and customizable software tools for use on Brand Sites (as defined below) (the “Accelpay Tools”, and together with the Accelpay Platform, the “Accelpay Service”). Subject to the terms and conditions of this Agreement, Accelpay hereby grants Brand a limited, nonexclusive and nontransferable (subject to Section 11) right, during the Term, to (i) access and use the Accelpay Platform for the Brand’s internal business purposes and (ii) embed the Accelpay Tools solely on website(s) controlled by Brand (“Brand Sites”), in each case, in accordance with Accelpay’s documentation and reasonable instructions. The Accelpay Service includes any updates that are made generally available by Accelpay to its customers at no additional charge during the Term, but expressly excludes any upgrades or additional services, features or analytics that are made available by Accelpay for an additional charge.
- Limitations. Brand will not provide access to the Accelpay Platform to any person who is not an employee or contractor of Brand (“Authorized Users”) and Brand will not make the Accelpay Tools available to any third party who is not an Authorized User or a visitor on a Brand Site. Brand will be responsible and liable for all Authorized Users’ compliance with the terms and conditions of this Agreement. Except as expressly permitted hereunder, neither Brand nor any Authorized User will, or will permit or authorize any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Accelpay Service; (b) modify, translate or create derivative works based on the Accelpay Service; (c) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on the Accelpay Service; (d) use the Accelpay Service for timesharing or service bureau purposes or otherwise for the benefit of a third party, except as otherwise expressly authorized under this Agreement; (e) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Accelpay Service or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; or (f) remove or obscure any proprietary notices or labels of Accelpay or its suppliers on the Accelpay Service. Brand will (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Accelpay Service and notify Accelpay promptly of any such unauthorized access or use, and (ii) use the Accelpay Service only in accordance with the documentation provided by Accelpay and all applicable laws, rules and regulations.
2. DATA AND INTELLECTUAL PROPERTY RIGHTS
- Brand Data. Accelpay will make available to Brand via the Accelpay dashboard certain consumer data and related purchasing information and analytics that is collected or generated in connection with consumers’ orders placed through the Accelpay Tools as embedded on a Brand Site (“Brand Data”). As between the parties, Brand owns the Brand Data. Brand hereby grants Accelpay a nonexclusive, royalty-free, fully paid up, non-sublicensable (except to contractors, consultants and service providers providing services on behalf of Accelpay), nontransferable (subject to Section 11) right and license to (a) copy, modify, distribute, display and otherwise use Brand Data to perform its obligations under this Agreement, including disclosing Brand Data to third-party service providers and Retailers in connection with processing and fulfilling purchases of Brand’s products, (b) copy, modify and use Brand Data in connection with developing and improving Accelpay’s products and services, and (c) create aggregated and/or anonymized data (the “Aggregated Data”). For the avoidance of doubt, Aggregated Data is not Brand Data.
- Brand Marks. Brand hereby grants to Accelpay a nonexclusive, non-sublicensable (except to contractors, consultants and service providers providing services on behalf of Accelpay), nontrasferable (subject to Section 11) right and license to use Brand’s trademarks, service marks and logos (“Brand Marks”) in connection with performing its obligations and exercising its rights under this Agreement. As further described below, Accelpay will use the Brand Marks in creating a white-label version of the checkout frame enabled by the Accelpay Tools, as it is displayed to consumers on Brand Sites, as well as in emails to consumers who purchase products from Retailers using the Accelpay Service on such Brand Sites (such purchases, “Qualifying Purchases”). Accelpay acknowledges and agrees that, as between the parties, Brand retains all rights, title, and interest in and to the Brand Marks. Brand grants no, and reserves any and all, rights other than the rights expressly granted to Accelpay under this Agreement with respect to the Brand Marks.
- Accelpay Service. Brand acknowledges and agrees that, as between the parties, Accelpay retains all rights, title, and interest in and to the Accelpay Service, all copies or parts thereof (by whomever produced), all improvements, updates, modifications or enhancements thereto, and all intellectual property rights therein. Accelpay grants no, and reserves any and all, rights other than the rights expressly granted to Brand under this Agreement with respect to the Accelpay Service.
- Feedback. Brand may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Accelpay with respect to the Accelpay Service. Accelpay will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Brand hereby grants Accelpay a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
- Brand Responsibilities. Brand will provide Accelpay with access to its website or CMS platforms (e.g., Wordpress, Wix, Shopify, Squarespace) as necessary for Accelpay to perform any integrations required to enable the Accelpay Service for Brand. Brand represents and warrants that it has the rights necessary to grant Accelpay such access for such purposes.
- Uptime. Accelpay will use reasonable efforts consistent with prevailing industry standards to provide the Accelpay Service in a manner that minimizes errors and interruptions in accessing and using the Accelpay Service, with a goal of 99% uptime and 1-hour response time for any support issues. Notwithstanding, the Accelpay Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Accelpay or by third-party providers, or because of other causes beyond Accelpay’s reasonable control, but Accelpay will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption within Accelpay’s control.
4. FEES; PAYMENT TERMS
- Fees; Payment Terms. Brand will pay to Accelpay the fees set forth in the Order in accordance with the payment terms set forth in the Order. If payment of any fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Brand will pay all reasonable expenses of collection. In addition, if any past due payment has not been received by Accelpay within ten (10) days from the time such payment is due, Accelpay may suspend Brand’s access to the Accelpay Platform until such payment is made.
- Net of Taxes. All amounts payable by Brand to Accelpay hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, knowhow payments, customs, privilege, excise, and property taxes (collectively "Taxes"). Brand will be solely responsible for payment of any Taxes, except for those taxes based on the income of Accelpay. Brand will not withhold any Taxes from any amounts due Accelpay. Without limiting the foregoing, Taxes related to an individual Qualifying Purchase (sales, use, value added) shall be the responsibility of the applicable consumer and the applicable Taxes will be determined by the location of sale. Accelpay will retain the amounts required to cover the Taxes for each Qualifying Purchase and remit those amounts to the appropriate taxing authorities or will pass on the Taxes to the Retailer for payment, however required by law.
5. TERM, TERMINATION
- Term. The initial term of this Agreement will commence on the Effective Date and continue for the initial term set forth in the Order, unless earlier terminated as set forth herein (the “Initial Term”). Thereafter, this Agreement will automatically renew for additional periods of the same duration (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party provides the other party with written notice of non-renewal at least sixty (60) days’ prior to the end of the then-current term.
- Termination; Effect of Termination. In addition to any other remedies it may have, either party may terminate this Agreement for any reason or no reason upon thirty (30) days’ prior written notice to the other party. Prior to the effective date of the termination or expiration, Brand may utilize the features and functionalities located on the Accelpay dashboard to export the Brand Data from the Accelpay Platform. Thereafter, Accelpay may, but is not obligated to, in its sole discretion and without delivery of any notice to Brand, delete any Brand Data stored or otherwise archived on the Accelpay Platform or on Accelpay’s network. Upon any expiration or termination of the Agreement, all rights granted hereunder and all obligations of Accelpay to provide the Accelpay Service will immediately terminate and (a) Brand will cease use of the Accelpay Service; and (b) each party will return or destroy all copies or other embodiments of the other party’s Confidential Information.
- Survival. Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 2.1(b), 2.1(c), 2.2, 2.3, 2.4, 4, 5.2, 5.3, 6, 7.2, 8, 9 and 11 will survive.
- As used herein, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Accelpay’s Confidential Information includes, without limitation, the Accelpay Service and the terms of this Agreement. Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party. Each party agrees that it will use the Confidential Information of the other party solely to perform its obligations or exercise its rights under this Agreement. Neither party will disclose, or permit to be disclosed, the other party’s Confidential Information directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by written confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (ii) as required by law (in which case each party will provide the other with prior written notification thereof, will provide such party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
7. REPRESENTATIONS, WARRANTIES AND DISCLAIMER
- Representations and Warranties. Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties; and (d) it shall perform all its obligations under this Agreement in compliance with applicable laws, rules and regulations, including holding any required licenses or permits required to fulfill its obligations hereunder.
- Disclaimer. BRAND ACKNOWLEDGES THAT ACCELPAY SENDS ORDERS RECEIVED FROM CONSUMERS TO RETAILERS FOR ACCEPTANCE OR REJECTION. ACCELPAY DOES NOT GUARANTEE THE INVENTORY OF RETAILERS IS ACCURATELY PRESENTED OR THAT THE RETAILERS WILL PROCESS OR FULFILL ORDERS. ACCELPAY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, VALIDITY, RELIABILITY, TIMELINESS, COMPLIANCE OR ACCURACY OF ANY RETAILER’S FULFILLMENT OF ANY ORDER EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE ACCELPAY SERVICE IS PROVIDED ON AN “AS-IS” BASIS AND ACCELPAY DISCLAIMS ANY AND ALL WARRANTIES. ACCELPAY DOES NOT WARRANT THAT THE ACCELPAY SERVICE IS ERROR-FREE OR THAT OPERATION OF THE ACCELPAY SERVICE WILL BE UNINTERRUPTED. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.
8. LIMITATIONS OF LIABILITY
- Disclaimer of Consequential Damages. THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING FROM (A) BRAND’S BREACH OF SECTION 1, (B) BRAND’S BREACH OF SECTION 10, (C) EITHER PARTY’S BREACH OF SECTION 6 OR (D) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
- General Cap on Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING FROM (A) BRAND’S BREACH OF SECTIONS 1, (B) BRAND’S BREACH OF SECTION 10, (C) EITHER PARTY’S BREACH OF SECTION 6 OR (D) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN 9, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY BRAND TO ACCELPAY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
- Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
- Indemnification for Infringement. Accelpay will defend Brand and the officers, directors, agents, and employees of Brand (“Brand Indemnified Parties”) against any third party claim, allegation or legal action (a “Claim”) arising from an allegation that Brand’s authorized use of the Accelpay Service infringes any intellectual property right of a third party. Further, Accelpay will indemnify the Brand Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees. Notwithstanding the foregoing, Accelpay’s indemnification obligation will not apply to claims to the extent arising from (a) modification of the Accelpay Service by any party other than Accelpay without Accelpay’s express consent; (b) the combination, operation, or use of the Accelpay Service with other product(s), data or services where the Accelpay Service would not by itself be infringing; or (c) unauthorized or improper use of the Accelpay Service. If the use of the Accelpay Service by Brand has become, or in Accelpay’s opinion is likely to become, the subject of any claim of infringement, Accelpay may at its option and expense (i) procure for Brand the right to continue using the Accelpay Service as set forth hereunder, (ii) replace or modify the Accelpay Service to make it non-infringing so long as the Accelpay Service has at least equivalent functionality, (iii) substitute an equivalent for the Accelpay Service or (iv) if options (i)-(iv) are not reasonably practicable, terminate this Agreement. This Section 9.1 states Accelpay’s entire obligation and Brand’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
- Indemnification by Brand. Brand will defend Accelpay and the officers, directors, agents, and employees of Accelpay (“Accelpay Indemnified Parties”) against any Claims arising from (a) any use or disclosure by Brand of the Accelpay Service in violation of this Agreement, (b) the Brand Marks or Brand Sites (excluding the Accelpay Tools incorporated therein), (c) any product defect or product liability claim arising out of or related to the Brand’s product(s) and (d) Brand’s violation of applicable law, including, without limitation, laws pertaining to the production, sale and distribution of alcoholic beverages. Further, Brand will indemnify the Accelpay Indemnified Parties against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees.
- Indemnification Procedure. If a Brand Indemnified Party or a Accelpay Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 9.1 or Section 9.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
- During the Term, neither Brand nor any of its affiliates will, directly or indirectly, enter into an agreement pursuant to which it purchases, subscribes to or otherwise obtains access to an ecommerce checkout technology for sales in the United States through Brand’s or its affiliates’ websites.
- Brand agrees that Accelpay may list and/or identify Brand’s name (including by displaying any Brand Mark) to identify the business relationship between the parties on Accelpay’s website and in other marketing and advertising collateral. Brand may not remove or export from the United States or allow the export or re-export of the Accelpay Platform or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither party may assign this Agreement or assign or delegate its rights or obligations under the Agreement without the other party’s prior written consent; provided however, that either party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either party otherwise than in accordance with this Section will be null and void. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. In the event of a conflict between the Order and these Terms and Conditions, the terms and conditions set forth in these Terms and Conditions will govern unless expressly stated otherwise in the Order. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and sent to the addresses set forth in the Order and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either party may terminate this Agreement by giving written notice thereof to the other party. Upon the occurrence of any Force Majeure Event, the affected party will give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform. This Agreement will be governed by the laws of the State of New York without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in New York, New York and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Brand acknowledges that any unauthorized use of the Accelpay Platform may cause irreparable harm and injury to Accelpay for which there is no adequate remedy at law.