Last Updated August 17, 2021
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AS THEY CONTAIN, AMONG OTHER THINGS AN AGREEMENT TO ARBITRATE DISPUTES AND A CLASS ACTION WAIVER. BY CONTINUED USE OF THE SKUPOS PLATFORM OR SERVICES, CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.
These Terms and Conditions constitute an agreement (this "Agreement") by and between Skupos Inc., a Delaware corporation whose principal place of business is 1462 Pine Street, San Francisco, CA 94109 ("Skupos") and the entity executing this Agreement ("Customer"). This Agreement is effective as of the date Customer clicks "I accept the terms in the License Agreement" (the "Effective Date"). Customer's use of and Skupos's provision of the Services (as defined below) are governed by this Agreement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO.
THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER'S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
1.1. "Authorized User" means any natural person that Customer authorizes to use the Services and signs up for an account
1.2. "Brands" mean any third party that supplies, distributes or otherwise sells goods and products that may be sold within Customer’s stores.
1.3. "Documentation" means any user manuals, online resources, or other documentation made available to Customer with respect to the Services in electronic or paper format, as may be amended or added to from time to time by Skupos.
1.4. "Platform" means Skupos's proprietary platform of servers, software, and technology used to provide the Services, accessible to Customer via their account login information.
1.5. "Program" means any discounting and/or promotional program offered by any Brand through the Services, including those offered through Skupos Engage (as defined below).
1.6. "Services" means the services that Skupos will provide to Customer under this Agreement.
1.7. "Store Movement Data" means all information transmitted from Customer to Skupos related to Customer’s use of the Services and any associated transactions, except for full payment card numbers (except for the last four digits) and their expiration dates. Store movement data includes but is not limited to: the raw point of sale scanner or website transaction data for UPC- coded and/or EAN-coded product purchases and PLU product purchases, each as recorded in Customer's stores, including private label data, and front register data and pharmacy data, any corresponding Customer hierarchies (categorizations of goods sold) and geographies, all click-and-collect transactions (and all associated data) where items are ordered and/or purchased online and purchased and/or delivered at a physical Customer store, and (for each item sold) units sold and price with and without a loyalty card.
1.8. "Term" is defined in Section 11.1 below.
1.9. "Transaction Discount Value" means, with respect to any Transaction, the total dollar value of the applicable discount or other promotion offered by Brand to the applicable consumer under the applicable Program for such Transaction.
2.1. Use of the Platform. During the Term, Customer may access and use the Platform to receive the Services pursuant to Skupos's policies posted on its website at www.skupos.com, as such policies may be updated from time to time. To the extent there is any conflict between those policies and the terms of this Agreement, the terms of this Agreement shall control.
2.2. Documentation. Customer may reproduce and use the Documentation solely as necessary to support its Authorized Users’ use of the Platform.
2.3. Platform Revisions. Skupos may revise Platform features and functions at any time, including without limitation by removing such features and functions. If any such revision to the Platform materially reduces features or functionality of the Services provided pursuant to this Agreement, Customer may within 30 days of notice of the revision terminate this Agreement without cause.
2.4. TCPA Consent & Privacy. Notwithstanding any current or prior election to opt in or opt out of receiving telephone calls or SMS messages (including text messages) from us, our agents, representatives, affiliates, or anyone calling on our behalf, you expressly consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any and all purposes arising out of or relating to your Skupos account, at any telephone number, or physical or electronic address you provide or at which you may be reached. You agree we may contact you in any way, including SMS messages (including text messages), calls using prerecorded messages or artificial voice, and calls and messages delivered using auto telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voice mail, or send one via text. You consent to receive SMS messages (including text messages), calls and messages (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone calling on our behalf at the specific number(s) you have provided to us, or numbers we can reasonably associate with your account (through skip trace, caller ID capture or other means), with information or questions about your Skupos account. You certify, warrant and represent that the telephone numbers that you have provided to us are your contact numbers. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You agree to promptly alert us whenever you stop using a particular telephone number. Depending on your plan, your cellular or mobile telephone provider may charge you for these calls or SMS messages. You also agree that we may contact you by e-mail, using any email address you have provided to us or that you provide to us in the future. We may listen to and/or record phone calls between you and our representatives without notice to you as permitted by applicable law. For example, we listen to and record calls for quality monitoring purposes.
2.5. Customer Store Information. Customer acknowledges and agrees that as part of the Services, Skupos may share information regarding Customer’s stores (including store addresses and other identifiers) with Brands in order to facilitate, operate, maintain and improve Skupos’s products and services (including the Services).
DELIVERY AND USE OF STORE MOVEMENT DATA
3.1. Delivery of Store Movement Data. Customer shall provide to Skupos all Store Movement Data related to each of its stores registered on the Platform on a daily basis and in a format requested by Skupos to Customer.
3.2. License to and Use of Store Movement Data.
(a) Customer represents and warrants that it has all consents, permissions and licenses necessary to provide the Store Movement Data it provides to Skupos for Skupos to use such Store Movement Data in accordance with subsection (b) below.
(b) Customer hereby grants Skupos a non-exclusive, transferable, and sublicensable royalty-free, worldwide license to use, reproduce, modify, create derivative works of, display, publicly perform and transmit the Store Movement Data to provide Services to Customer and for Skupos’ own commercial purposes. For the avoidance of doubt, under this license Customer hereby (i) authorizes Skupos to process the Store Movement Data into either a form necessary for providing the Services or an anonymized and aggregated form for provision to third parties ("Skupos Processed Data" and such modification and use, to “Process”), (ii) authorizes Skupos to sublicense the Store Movement Data to any third parties to use, reproduce, modify, create derivative works of, display, publicly perform and transmit the Store Movement Data, (iii) authorizes such third parties to sublicense the Store Movement Data to other third parties to use, reproduce, modify, create derivative works of, display, publicly perform and transmit the Store Movement Data, (iv) authorizes any third party to Process the Store Movement Data ("Third Party Processed Data"), and (v) authorizes any such third party to incorporate any such Third Party Processed Data into services of such third party for provision to other third parties; in case above in perpetuity. Customer agrees that Skupos shall own Skupos Processed Data and that Store Movement Data that is Processed by a Third Party shall be owned by Skupos unless Skupos and such Third Party otherwise mutually agree in writing. Customer hereby assigns all of its right, title, and interest in and to Skupos Processed Data to Skupos and to any Third Party Processed Data to Skupos unless Skupos and such Third Party otherwise mutually agree in writing.
(c) Skupos and any third party may use the Store Movement Data in the creation of reports that are aggregated across retail organizations in a geographical area. Skupos may collect, use and disclose to any such third party store-specific or Customer-chain-specific sales information. Customer agrees that Skupos and such third party may release any Customer store specific or Customer chain specific sales information or the aggregated data to their respective clients, and clients of their client brokers, client value added resellers and client alliance partners for internal business use of such clients and of clients of such client brokers, client value added resellers and client alliance partners.
(d) Customer grants Skupos and any third party the right to utilize the Store Movement Data (i) for syndicated usage within third parties on an ongoing basis (ii) to contact Customer (directly or through Customer’s distributor(s)) for marketing purposes, and (iii) to automate orders to Customer’s store.
4.1. Engage Terms. If Customer has signed up for and maintained a subscription to the Services consisting of Skupos’s discounting and promotions platform known as “Engage” (as further described in the applicable Documentation, “Skupos Engage”), then the Skupos Engage terms in this Section 4 will apply in addition to the other terms and conditions of this Agreement.
4.2. Brand Opt-In. Brands may offer Programs through Skupos Engage from time-to-time, whereby Brands agree to (a) offer discounts and promotions to consumers that purchase products and goods in certain qualifying transactions with Customer (each such qualifying transaction, a “Transaction”) over a period of time; and (b) reimburse Customer for the amounts incurred by Customer (or with respect to Co-Funding Programs, for a portion of the amounts incurred by Customer as specified in the applicable Co-Funding Program Rules) in providing such discounts and promotions to such consumers for each Transaction in connection with such Programs. By subscribing to, or otherwise using, Skupos Engage, Customer hereby acknowledges and agrees that it is opting in to participate in all Programs (excluding Co-Funding Programs) offered to Customer now or in the future for all Brands that are on Skupos Engage now or in the future. In order to opt-out of participation in any Program for any specific Brand, Customer must specifically notify Skupos that it is opting out of participation with that Brand through the opt-out functionality made available to Customer on Skupos Engage.
4.3. Programs. By participating in any Program, Customer hereby acknowledges and agrees that: (a) it will comply with the specific Program terms, conditions and rules (including any Co-Funding Program Rules, if applicable) communicated to it in connection with such Program; (b) it is responsible for incurring the Transaction Discount Value for each Transaction at the time of such Transaction (with respect to each Program, “Incurred Program Amounts”); (c) Customer’s right to be reimbursed through Skupos Engage for Incurred Program Amounts (or with respect to Co-Funding Programs, for a portion of the Incurred Program Amounts as specified in the applicable Co-Funding Program Rules) will be expressly conditioned on the applicable Brand’s remittance of sufficient Program funds to Skupos to cover such reimbursement; and (d) in the event that the applicable Brand fails to remit sufficient Program funds to Skupos to cover any Incurred Program Amounts, Customer will look solely to Brand to recover any Incurred Program Amounts, and Skupos will not be responsible for reimbursing Customer for such Incurred Program Amounts until and unless it has received such amounts from Brand.
4.4. Co-Funding Programs. From time-to-time, Brands may offer Programs through Skupos Engage where Retailers are required to co-fund and bear the cost of a portion of the Transaction Discount Value for each Transaction (such Programs, “Co-Funding Programs”). Customers will be required to specifically opt-in to participate in Co-Funding Programs on a Program-by-Program basis through the functionality of Skupos Engage, and will be notified through Skupos Engage of the associated terms, conditions, rules and Brand funding that is available with respect to such Co-Funding Program (the “Co-Funding Program Rules”).
4.5. Withdrawals. Subject to Section 4.3, (a) Customer’s reimbursements for Incurred Program Amounts (or with respect to Co-Funding Programs, a portion of the Incurred Program Amounts as specified in the applicable Co-Funding Program Rules) will be deposited on a monthly basis to a connected account (“Connected Account”) managed by Skupos’s third party payment processor and linked to Customer’s designated bank account (“Customer Account”); and (b) Customer may withdraw funds from its Connected Account to its Customer Account through the functionality offered by Skupos Engage as described in the Documentation, which withdrawals may be subject to additional transaction and/or processing fees, and withdrawal periods as may be imposed by Skupos or its third-party payment processor, Stripe as described in the Documentation. From time-to-time at the sole discretion of Brands, Brands may deposit additional funds into a Customer’s Connected Account, which may take the form of reimbursements or other incentives, and which may or may not relate to Customer’s participation in a Program. Notwithstanding the forgoing, for ease of operations, any funds left in the Connected Account for more than twelve (12) months from deposit will be transferred to Skupos and become the property of Skupos.
CUSTOMER'S RESPONSIBILITIES & RESTRICTIONS
5.1. Acceptable Use. Customer will not: (a) use the Platform for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Platform; (b) provide Platform passwords or other log-in information to any third party; (c) share non-public Platform features or content with any third party; or (d) access the Platform in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Platform, or to copy any ideas, features, functions or graphics of the Platform. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Authorized Users, Skupos may suspend Customer's access to the Platform without advance notice, in addition to such other remedies as Skupos may have.
5.2. Unauthorized Access. Customer will prevent unauthorized access to the Platform, including without limitation by protecting its passwords and other log-in information. Customer will notify Skupos immediately of any known or suspected unauthorized use of the Platform or breach of its security and will use best efforts to stop and mitigate said breach.
5.3. Compliance with Laws. In its use of the Platform, Customer will comply with all applicable laws, including, without limitation, laws governing the protection of personally identifiable information, proprietary information and trade secrets and any other laws, guidance or industry standards applicable to the protection of Store Movement Data. Customer recognizes that not all features and functionality of the Services may comply with the laws of its jurisdiction and agrees to ensure that its own use of the Platform complies with applicable law.
5.4. Authorized Users & Platform Access. Customer is responsible and liable for: (a) Authorized User’s use of the Platform, including without limitation unauthorized conduct and any conduct that would violate the requirements of this Agreement applicable to Customer; and (b) any use of the Platform through Customer's or any of its Authorized Users’ account(s), whether authorized or unauthorized.
5.5. Payment. Customer agrees to make timely payments of all fees associated with the use of the Services. Customer authorizes Skupos (or its third-party payment processor) to process the payment information provided by Customer (such as a credit card number and expiration date) necessary to effect such payment. Customer recognizes that the Services may have recurring payment obligations and that Customer’s payment method may be charged on a recurring basis at the beginning of each payment period for the next period’s Services. Skupos reserves the right to suspend the Services if Customer fails to make timely payment of all fees as required by this Section.
5.6. Additional Features. From time to time, Skupos may offer and Customer may accept additional features beyond what the parties initially agreed to be included within the Services. Skupos may charge an additional fee for such additional services and such services may have additional terms and conditions. To the extent the parties agree to include such additional features, those features shall be deemed part of the “Services” and any additional terms and conditions associated with such features shall be deemed incorporated by reference into this Agreement.
INTELLECTUAL PROPERTY RIGHTS
6.1. Rights to the Platform and Services. As between Customer and Skupos, Skupos retains all right, title, and interest in and to the Platform and the Services, including without limitation all software used to provide the Platform and all graphics, user interfaces, logos, and trademarks reproduced through the Platform. This Agreement does not grant Customer any intellectual property license or rights in or to the Platform, the Services, or any of its components except as otherwise specified herein. Customer recognizes that the Platform, the Services and its components are protected by copyright and other laws.
6.2. Trademark and Name Usage. Customer hereby grants to Skupos a non-exclusive, transferable and sublicenseable royalty-free right to use Customer’s company name, any associated tradenames, trademarks, brand names, logos and other such identifying marks for the purpose of identifying Customer as a customer of Skupos in any Skupos advertising material, websites, or other publications or communications.
REPRESENTATIONS & WARRANTIES
7.1. From Skupos. Skupos represents and warrants that it is the owner of the Platform and the Services, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement to Customer without the further consent of any third party. Skupos's representations and warranties in the preceding sentence do not apply to use of the Platform or Services in combination with hardware or software not provided by Skupos. In the event of a breach of the warranty in this Section 7.1, Skupos, at its own expense and discretion, will promptly take one of the following actions: (a) secure for Customer the right to continue using the Platform and receiving the Services; (b) replace or modify the Platform or Services to make them non-infringing; or (c) terminate the infringing features of the Platform or Services and provide support (credit) to Customer for such features in Skupos' sole discretion, in proportion to the portion of the Term left after such termination. In conjunction with Customer's right to terminate for breach where applicable, the preceding sentence states Skupos's sole obligation and liability, and Customer's sole remedy, for breach of the warranty in this Section 7.1 and for potential or actual intellectual property infringement by the Platform or Services.
7.2. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself or its business dealings to or through the Platform; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business with Skupos pursuant to applicable law.
7.3. Warranty Disclaimers.
7.3.1 Point of Sale Features. Certain functionality of the Services allow direct interaction, either directly or through a third party, with a live transaction to facilitate discounts, price adjustments, and other features of the Services, including, but not limited to, in connection with any Program implemented via Skupos Engage. To the maximum extent permitted by law, Skupos disclaims any liability associated with such interactions with live transactions and with any errors that may occur involving any of the foregoing features.
7.3.2. Connectivity. The Services rely on the regular synchronization of Customer’s systems and Skupos’s servers. Where such synchronization does not occur in a timely fashion, Skupos will endeavor to contact the Customer via email or other communications. Customer acknowledges that it is Customer’s responsibility to ensure an active connection is maintained between the Services and Customer’s own devices. Skupos will not be liable for Customer’s failure to maintain any such connectivity.
7.3.3. Transactional Inaccuracies. Certain functionality of the Services create a method for third party vendors to offer rebates for certain purchases, including, but not limited to, in connection with any Program implemented via Skupos Engage. However, such functionality relies on the accurate reporting of transactions to Skupos. Customer shall be fully responsible directly to any such third party vendor for any fraudulent, inaccurate or other transactions that result in rebates or other third-party credits being improperly issued. Skupos disclaims any liability to Customer for any such transactions. Customer acknowledges and agrees to comply with any third party rebate program requirements in order to use such functionality of the Services.
7.3.4. Automated Ordering. Certain functionality of the Services may facilitate the automated ordering of products for Customer, either through fully automated ordering (i.e., Skupos makes the order on Customer’s behalf) or manual ordering (i.e., Skupos generates an order for Customer to submit). Customer acknowledges that automated ordering is NOT covered under the “Services” or this Agreement but rather is the function of Skupos’s relationship with the associated third party vendor and/or Customer’s relationship with the associated third party vendor. For manual ordering, Customer acknowledges that such order preparations may contain errors and that it is ultimately Customer’s responsibility to ensure the timeliness and accuracy of any such orders. Customer acknowledges that Skupos shall not be liable to Customer for any manual or automated ordering errors or omissions.
7.3.5. Age Verification. Customer understands and agrees to comply with all appropriate age verification laws and to ensure and will remain fully responsible for any age-restricted purchases.
7.3.6. Cooperation with Law Enforcement. Skupos may share any information provided to it under the Services, including Store Movement Data, to law enforcement upon a lawful request or, in its sole discretion, to protect itself or third parties. Where law enforcement requires disclosure of Store Movement Data, Skupos will endeavor to (i) disclose only information necessary to satisfy the legal request and (ii) keep Customer apprised of such disclosures so that Customer may defend against or otherwise assist with such disclosures.
7.3.7 General Warranty Disclaimer. Except to the extent set explicitly set forth in this section, THE PLATFORM AND SERVICES ARE PROVIDED "AS IS" AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (A) SKUPOS HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR AUTHORIZED USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (B) SKUPOS DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (C) SKUPOS DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT STORE MOVEMENT DATA WILL REMAIN PRIVATE OR SECURE.
8.1. Customer will defend, indemnify, and hold harmless Skupos and its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns against any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the Platform or Services, including without limitation: (a) claims by Authorized Users or by Customer's employees, as well as by Customer's own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including personal information of Customer’s own customers; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Platform through Customer's account, including without limitation by Store Movement Data; (d) claims that use of the Platform through Customer's account harasses, defames, or defrauds a third party or violates any law, restriction, guidance or industry standard (e) claims related to Customer’s responsibilities outlined in Section 7.3. Customer's obligations set forth in this Section 8 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer's expense and payment of judgments. Skupos will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.
LIMITATION OF LIABILITY
9.1. Dollar Cap. IN NO EVENT WILL SKUPOS’ (OR ITS LICENSORS’) TOTAL LIABILITY TO CUSTOMER, ITS AUTHORIZED USERS, OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF THE SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SKUPOS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM OR ACTION GIVING RISE TO SUCH LIABILITY, SUBJECT TO A CAP THEREON OF ONE THOUSAND DOLLARS ($1,000 USD), OR ONE HUNDRED DOLLARS ($100 USD) WHERE CUSTOMER HAS HAD NO PAYMENT OBLIGATIONS TO SKUPOS DURING SUCH PERIOD, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
9.2. Exclusion of Consequential and Other Damages. IN NO EVENT WILL SKUPOS BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE, IN ANY CLAIM OR ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT.
9.3. Clarifications & Disclaimers. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 9 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN SKUPOS AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
TERM AND TERMINATION
10.1. Term. The term of this Agreement (the "Term") will commence on the Effective Date and continue for the period that the parties mutually agree upon, or one (1) month, if no such period is specified. Thereafter, the Term will renew for successive periods equal (a) to the greater of the specified term or one (1) year, or (b) one (1) month if no such term is specified, unless either notifies the other of non-renewal by written notice seven (7) or more days before the renewal date.
10.2. Termination for Cause. Either party may terminate this Agreement for any material breach by the other party by written notice to such other party. Such notice will specify in detail the nature of the breach and will be effective in 30 days, or more if specified in the notice, unless the breaching party first cures the breach.
10.3. Termination for Convenience. Skupos may terminate this Agreement and Customer’s access to the Services for any reason upon thirty (30) days’ prior written notice.
10.4. Effects of Termination. Upon termination of this Agreement, Customer will cease all use of the Platform and delete, destroy, or return all copies of the Documentation in its possession or control. The following sections will survive termination or expiration of this Agreement: 5.5 (with respect to any outstanding payment obligations, which shall also survive), 6, 7.3, 8, 9, 10.4, 11 and 12.
GOVERNING LAW AND ARBITRATION
11.1. Arbitration, Governing Law, and Jurisdiction. This Agreement and all claims arising out of or related to this Agreement will be governed solely by federal arbitration law, the Federal Arbitration Act, and the laws of the State of California without regard to its conflict of laws provisions nor the 1980 United Nations Convention on Contracts for the International Sale of Goods. The parties agree that any dispute arising under this Agreement shall be determined and settled by arbitration in San Francisco, California in accordance with the rules of the American Arbitration Association (“AAA"). With respect to any claim or dispute arising out of or related to this Agreement, each party hereby waives any right it may have to (a) litigate in court, (b) receive a jury trial and (c) to participate in any class or collective action (whether in litigation or arbitration) against the other party. Any award rendered by the arbitrator will be final and binding on the parties and judgement thereon may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief. Arbitration will be conducted by one arbitrator that the parties mutually agree upon, or, if the parties are unable to agree to on a single arbitrator, three arbitrators consisting of one arbitrator chosen by each party and a third chosen by the two arbitrators selected by the parties. Each party shall bear its own costs with respect to any arbitration.
12.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other's behalf.
12.2. Notices. All notices required to be sent hereunder shall be in writing, addressed to receiving party's current business contact, if known, and sent to the party's address as specified in this Agreement, or as updated by either party by written notice. Notices shall be effective upon receipt and shall be deemed to be received as follows: (a) if personally delivered by courier, when delivered; (b) if mailed by first class mail, or the local equivalent, on the fifth business day after posting with the proper address; or (c) if sent by email, upon confirmation of transmission.
12.3. Force Majeure. No delay, failure, or default of this Agreement will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party's reasonable control except for a party’s obligations to pay any fees due.
12.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Skupos's express written consent. Skupos may freely assign this Agreement. Subject to the forgoing, this Agreement will be binding upon and inure to the benefit of the parties' respective successors and assigns.
12.5. Severability. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.6. No Waiver. No waiver by either party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement: (i) no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof; and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
12.7. Technology Export. Customer will not: (a) permit any third party to access or use the Platform in violation of any U.S. law or regulation; or (b) export any software provided by Skupos or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer will not permit any third party to access or use the Platform in, or export such software to, a country subject to a United States embargo.
12.8. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
12.9. Modification. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship. Skupos may change the terms of this Agreement from time-to-time in its discretion and upon notice to Customer. If Customer does not agree to such changes, it may provide Skupos with 30 day’s notice of termination of this Agreement. Otherwise, continued use of the Skupos Services shall constitute acceptance of any changes to the terms of this Agreement.
12.10. Taxes. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority in connection with Customer's performance under this Agreement, other than any taxes imposed on Skupos's income.
USE OF THIRD-PARTY DEVICES.
Skupos offers Customers the ability to use third-party devices, products, and services to enhance the operation and security of the SYNC services. If Customer chooses to order and use such third-party devices, products, and services you accept the additional terms and conditions that apply to the Third-Party Device of your choice:
Managed Network Service Providers (MNSPs)
If you utilize a third-party MNSP device to access Skupos Services (e.g. Mako, Cybera, etc.), you hereby grant Skupos permission to load its software directly onto the third-party device subject to your obtaining any necessary approvals or permissions from your third-party MNSP device vendor. If you use an MNSP device to access Skupos Services you hereby release Skupos and hold it harmless from any and all claims or actions arising from or related to any malfunction or action/non-action of such MNSP device that causes harm of any nature to you or your business, including, but not limited to, lost data, erroneous data, computer virus, or malware.
Acumera Merchant Gateway/MNSP
Skupos is authorized by Acumera, Inc. (“Acumera”) to lease and/or resell certain MNSP-related devices and services to Customer. As set out more fully below, Acumera is a third-party beneficiary to this lease agreement (“Lease Agreement”).
Depending on the packaged selected, Customer is leasing an Acumera Merchant Gateway (“AMG”) device (and related hardware) and related services through Skupos (together the “AMG Equipment and Services”). Skupos owns numerous AMG devices and Customer is not guaranteed any particular AMG device. Nor do any of the AMG devices require customization for use by Customer. Skupos reserves the right to replace the AMG device with alternative devices (new or reconditioned) throughout the Lease Term in its sole discretion.
The term of this Lease Agreement shall be five (5) years (the “Lease Term”). Customer may terminate the Lease Agreement on one month’s written notice. The cost of the lease shall be zero ($0 USD) so long as the Lease Agreement is in effect. For clarity, there are separate Skupos Platform enablement fees and installation fees owed by Customer and agreed to at sign-up. In the event Customer terminates this Lease Agreement, or the Lease Agreement is terminated by Skupos because of Customer’s breach or other reason, before the end of the five (5) year Lease Term, Customer shall pay Skupos an early cancellation fee of $300.00 USD, regardless of the number of months remaining on the five (5) year Lease Term. When the Lease Term is over or the Lease Agreement otherwise terminated the Agreement shall remain in place, along with any associated Platform and other charges, unless otherwise properly terminated by either Party. Notwithstanding the foregoing, in the event Acumera stops providing it services to Skupos for any reason, Skupos may, in its sole discretion, terminate this Lease Agreement without liability to Customer.
Upon termination of the Lease Agreement (or expiration of the five (5) year Lease Term), Customer shall, at its sole expense, return the AMG device and related hardware (and/or any substituted devices and related hardware) within ten days of termination. At the time of termination, Skupos will inform Customer in writing where to return the device and related hardware.
Customer may only use the AMG device and related hardware (and/or any substituted devices and related hardware) as directed by Skupos during the Lease Term. Further, Customer may not link any non Skupos-provided software without the express written consent of Skupos. Likewise, Customer may not sell, giveaway, or relocate the Equipment and Services and the designated Site or Sites. Any unauthorized use of the AMG device and related hardware (and/or any substituted devices and related hardware) or violations of the terms of this Section 5 will result in immediate termination of the Lease Agreement. In addition to the early termination fee of $300.00 USD, Skupos reserves the right to seek any other remedies and damages available to it for Customer’s breach of this Section 5. If Skupos is forced to use efforts to collect the early termination fee or any other fees under this Lease Agreement or the Agreement, Customer shall be responsible, and shall pay, Skupos’ costs in doing so, including attorneys’ fees.
Customer acknowledges and agrees that Skupos may access Customer’s POS system(s) via the AMG device and any applicable Acumera services or systems for the purpose of enabling Skupos Sync services.
In the event Customer experiences problems with AMG device and related hardware (and/or any substituted devices and related hardware), it will contact Acumera at 512-687-7401 for assistance with trouble-shooting the problem. Customer, however, is responsible for any damage to the AMG device and related hardware other than for normal wear and tear.
Customer may not assign or transfer the Lease Agreement or the Equipment and Services leased thereunder without the express written approval of Skupos.
This Lease Agreement and the Agreement are intended to act together as one agreement and the parties agree to construe the obligations hereunder to work in harmony with the Agreement. However, to the extent any of the following Lease Agreement terms and conditions conflict with the Agreement, the terms and conditions in this Lease Agreement will control:
Ownership, Access, License, Intellectual Property**.** Skupos and Customer agree that Customer will lease the AMG device and related hardware (and/or any substituted devices and related hardware) at their store location(s) set up at sign up or otherwise properly added to this Lease Agreement (the (“Site” or “Sites”), subject in all respects to Skupos’ rights to use the AMG Equipment and Services specified below, and that Skupos is operating and managing the AMG Equipment and Services as a service to Customer. Customer further agrees that Acumera and/or Skupos may have and maintain connections to the Customer network and AMG device and related hardware as necessary to fulfill its obligations under this Lease Agreement. Acumera shall make commercially reasonable efforts to maintain the AMG device and related hardware and upgrade its software so that use of the AMG device remains competitive as compared to substantially similar equipment generally available in the marketplace. Customer shall provide Skupos or Acumera access to the Site(s) as is necessary to perform its maintenance and upgrade services.
Intellectual Property Rights. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Lease Agreement or prepared by or on behalf of Skupos and/or Acumera for the benefit of Customer under this Lease Agreement, or any subsequent Statement of Work agreed to by Skupos and Customer that does not create a work for hire (collectively, the “Deliverables”) and shall be owned by Acumera. In addition, as between Acumera, Skupos and Customer, Skupos shall own the AMG device and related hardware (as well as any substitute devices and related hardware) and Acumera shall own any and all Intellectual Property Rights in the AMG software.
EXPRESS DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER SKUPOS NOR ACUMERA MAKE ANY WARRANTIES WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE EQUIPMENT, SOFTWARE AND SERVICES PROVIDED HEREUNDER. SKUPOS AND ACUMERA SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER SKUPOS NOR ACUMERA WARRANTS THAT THE USE AND OPERATION OF THE AMG EQUIPMENT AND SERVICES DO NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. HOWEVER, TO THE BEST OF SKUPOS’ AND ACUMERA’S KNOWLEDGE, THE USE AND OPERATION OF THE AMG EQUIPMENT AND SERVICES AS PROVIDED DO NOT INFRINGE ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES AND NO CLAIM OF INFRINGEMENT HAS BEEN MADE OR THREATENED AGAINST SKUPOS AND/OR ACUMERA.
Indemnification. Customer will indemnify, defend and hold Skupos, its partners, officers, directors, agents, employees, subsidiaries, affiliates, parents, successors and assigns, and their licensors (including Acumera) (each a “Skupos Indemnified Party”) harmless from and against any third-party claim, demand, cause of action, debt or liability (including, without limitation, reasonable attorneys’ fees and expenses) based upon, arising out of or relating to: (i) Customer’s modifications of and/or additions to the AMG Equipment and Services, or combination or use of the AMG Equipment and Services with Customer’s own products or services, or third-party products that infringe on, misappropriate or otherwise violate the intellectual property rights of a third-party or (ii) Customer’s breach of any of its representations, warranties or covenants herein. Customer’s duty to indemnify, defend and hold harmless under this section are in addition to Customer’s indemnity obligations set forth elsewhere in the Agreement and shall be initiated upon Customer receiving notice of any claim, demand, cause of action, debt or liability for which Customer must indemnify a Skupos Indemnified Party.
LIMITATION OF LIABILITY. EXCEPT FOR DAMAGES ARISING FROM BREACHES OF CONFIDENTIALITY, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY OR THE OBLIGATION TO INDEMNIFY UNDER THIS AGREEMENT (THE “CARVEOUTS”), IN NO EVENT WILL ANY PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR LOST PROFIT DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY STATEMENT OR WORK (INCLUDING LOSS OF USE, DATA, OR OTHER ECONOMIC ADVANTAGE), HOWEVER IT ARISES, WHETHER FOR BREACH OF THIS AGREEMENT OR ANY STATEMENT OR WORK, INCLUDING BREACH OF WARRANTY, OR IN TORT. EXCEPT FOR THE CARVEOUTS AND FAILURE TO PAY, THE AGGREGATED LIABILITY OF EACH PARTY SHALL IN NO EVENT EXCEED THE FEES THAT WERE PAID OR WHICH ARE PAYABLE BY CUSTOMER TO SKUPOS DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE INITIAL CLAIM WAS ASSERTED, SUBJECT TO A CAP THEREON OF ONE THOUSAND DOLLARS ($1,000 USD).
Intended Beneficiaries. Customer acknowledges and agrees that:
- Skupos is the lessor/reseller of services and the sub licensor of worldwide intellectual property rights that are owned by Acumera;
- The acknowledgements, obligations, restrictions and undertakings given or accepted by Customer in this Lease Agreement are for the benefit of Skupos and Acumera and Acumera is a third-party beneficiary under this Lease Agreement and may enforce those provisions directly against Customer or through Skupos. For clarity, Acumera stands as Skupos for purposes of Section 8(e) above; and
- Customer is prohibited from bringing any claims related to the AMG Equipment and Services against Acumera.