Terms and Conditions

Updated on: October 17, 2016
Created on: September 23, 2016

RECITALS

THIS IS AN AGREEMENT BETWEEN YOU OR THE ENTITY THAT YOU REPRESENT (hereinafter “You” or “Your”) AND INERGY TECH CORP. (hereinafter “Inergy Tech”) GOVERNING YOUR USE OF INERGY TECH SUITE OF ONLINE BUSINESS PRODUCTIVITY SOFTWARE.
WHEREAS, Inergy Tech provides Software System for mobile ordering management called LINKK; and
WHEREAS, Customer desires to obtain access and use of Inergy Tech’s Software System.
NOW, THEREFORE, in consideration of the foregoing recitals and the promises and covenants contained herein, the Parties agree as follows:

TERMS

  1. Definitions.
    1. Components. “Components” means the individual modules that make up the Software System. From time to time, Inergy Tech may make new Components available. Available Components at the time of this Agreement are identified as options in Exhibit A.
    2. Customer Data. “Customer Data” means the electronic data and information collected by the Customer and uploaded to the Software System and Services.
    3. Documentation. “Documentation” refers to all manuals, user documentation, specifications, and other related written materials pertaining to the Software System and Services that Inergy Tech furnishes to Customer under this Agreement.
    4. Services. “Services” refers to the access and use of Inergy Tech’s Software System by Customer and all services provided by Inergy Tech under this Agreement that enable Customer to access, customize, and use the Software System as set forth in the Statement of Services in the accompanying Exhibit A.
    5. Software. “Software” refers to Inergy Tech’s LINKK software, a suite of Components providing mobile ordering management functionality.
    6. Software System. “Software System” means the Software Components that Customer has ordered and paid for in accordance with Exhibit A.
  2. Services.
    1. Software System Access. Inergy Tech hereby grants to Customer a non-exclusive, revocable, non-transferable, and limited right to access and use of the Software System. The Software System is provided solely as a service and the Customer is not provided with any license rights in or to the Software System. Customer has no right to receive a copy of the object code or source code of the Software System. Upon termination of this Agreement, Customer’s right to access and use the Software System shall terminate.
    2. Third Party Hosting. Inergy Tech’s Software System and Services are hosted through a third party hosting vendor, namely, Amazon Web Services (“AWS”). Accordingly, the availability of Services will be dependent upon AWS and may not be available at all times. At the time of this Agreement, Amazon’s documentation regarding AWS, scheduled downtimes, and system availability can be accessed at __________________________. Customer agrees that Inergy Tech shall have no liability arising out of or relating to the use of AWS to host its Software System and Services.
    3. Third Party Software. The Software System may contain software and copyrighted information of third parties. In the event that the Software System contains third party software, Inergy Tech shall ensure that Customer’s use of the Software System and Services under this Agreement is permitted by applicable third party agreements or licenses. Inergy Tech does not warrant and has no responsibility for, and expressly disclaims any liability arising from, any third party software.
    4. Data Protection. Inergy Tech will take reasonable measures to comply with data protection laws that are applicable to this Agreement and to keep Customer’s personal and confidential information secure. To the extent Customer requires compliance with any specific security standard, Customer shall identify such security standard in Exhibit A. Within thirty (30) days of termination of this Agreement, Customer may make a written request for a copy of its Customer Data. Upon receipt of such written request, Inergy Tech will provide Customer with instructions as to how to receive the Customer Data. If Customer does not make such a written request within thirty (30) days of termination, then Customer provides its consent to allow Inergy Tech to delete all Customer Data in its possession.
    5. Support and Maintenance Services. Inergy Tech shall provide general technical support services to Customer as described in the Documentation, including bug fixes, error corrections, modifications, enhancements, upgrades, and new releases to the Software System and Services to ensure their functionality. In addition, Inergy Tech may offer premium technical support services to Customer at an additional charge.
    6. Changes to Services. If Customer requests that any additional Components or Services be added to Exhibit A, Customer will initiate the requested change(s) in writing, and within ten (10) days, Inergy Tech will provide Customer with an estimate of fees and schedule impacts as a result of the requested change(s). Any such requested changes will become effective only upon the execution of an amended or new Exhibit A.
  3. Permitted Uses and Restrictions. Customer may not (a) use the Software System or Services for any purpose other than its normal business activity; (b) rent, transfer, assign, distribute, sell, or otherwise provide access to the Software System, whether on a temporary or permanent basis, except as expressly permitted in this Agreement; (c) Customer agrees not to use the Software System to store or transmit infringing, libelous, tortious, or unlawful content; (d) copy, duplicate, or create derivative works of the Software System or Services, (e) change, modify, reverse engineer, disassemble, decompile, and/or otherwise attempt to access or derive the source code of the Software; or (f) access the Software System or Services in order to build a competitive product or service.
  4. Fees and Payment for Services. In exchange for the Services and Software System, Customer shall be responsible for and shall pay Inergy Tech the fees described in Exhibit A. Any sum due Inergy Tech for the Services for which payment is not otherwise specified shall be due and payable ten (10) days after receipt by Customer of an invoice.
    1. Billing Procedures. Unless otherwise provided for in Exhibit A, Inergy Tech shall bill Customer by an invoice, which shall contain (a) Customer’s purchase order number, if any, and Inergy Tech’s invoice number, (b) a description of the Services for which an amount is due, (c) the fees due, (d) taxes, if any, and (e) credits, if any.
    2. Taxes. Inergy Tech represents and warrants that it is an independent contractor for purposes of federal, state, and local taxes. Inergy Tech agrees that Customer is not responsible to collect or withhold any income taxes for Inergy Tech. Customer is responsible for any taxes (other than Inergy Tech’s income taxes) associated with the sale of the Services under this Agreement. Customer agrees to pay Inergy Tech the fees invoiced for the Services without any reduction for taxes. If Inergy Tech is obliged to collect or pay any taxes (other than Inergy Tech’s income taxes) in connection with the sale of Services under this Agreement, the taxes will be invoiced to Customer.
    3. Pricing Changes. At the end of the Initial Term or Renewal Term as applicable, Inergy Tech may change the pricing of the fees for the Services identified in Exhibit A. In the event of a change in pricing, Inergy Tech will provide Customer with sixty (60) days notice prior to the end of the Initial Term or Renewal Term as applicable. If Customer elects to continue this Agreement for another Renewal Term, Customer agrees to pay the revised fees identified in the notice provided by Inergy Tech.
  5. IP and Proprietary Rights. Inergy Tech owns and shall retain all right, title and interest, including all intellectual property rights, in and to the Software, Software System, and Services. Nothing in this Agreement or the performance thereof, or that might otherwise be implied by law, will operate to grant Customer any intellectual property right, title or interest, implied or otherwise, in or to the Software, Software System, or Services. Any modifications, suggestions, enhancements, or improvements to the Software, Software System, or Services shall remain the sole property of Inergy Tech. No implied licenses are granted to Customer under this Agreement.
  6. Confidentiality.
    1. Confidential Information. “Confidential Information” means proprietary or confidential information that is marked as “proprietary” or “confidential” or should reasonably be considered “proprietary” or “confidential” given the nature of the information and the circumstances surrounding disclosure. Information shall not be considered Confidential Information if it (a) is or becomes publicly available through no fault or breach by the recipient; (b) is acquired by the recipient from an independent third party; (c) is or was independently developed by the recipient without use of, or reference to, Confidential Information of the discloser; (d) was lawfully known to the recipient without an obligation of confidentiality prior to disclosure by the discloser; or (e) is furnished to others by the discloser without restriction on disclosure.
    2. Use of Confidential Information. Each Party acknowledges that in connection with this Agreement, such Party may gain access to Confidential Information of the other Party. During the Term of this Agreement and for three years thereafter, each Party agrees (a) not to use the Disclosing Party’s Confidential Information other than as strictly necessary to exercise its rights and perform its obligations under this Agreement; (b) not to use any of the Disclosing Party’s Confidential Information directly or indirectly in any manner to the detriment of the Disclosing Party or to obtain any competitive benefit with respect to the Disclosing Party; and (c) to maintain the Disclosing Party’s Confidential Information in strict confidence, and subject to Section 6.3 below, not disclose the Disclosing Party’s Confidential Information without the Disclosing Party’s prior written consent.
    3. Compelled Disclosure. Nothing in this Agreement shall prevent the Receiving Party from disclosing information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency, provided, however, that prior to any such disclosure, the Receiving Party shall (a) assert the confidential nature of the information to the agency; (b) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose, to the extent permitted; and (c) cooperate fully with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
    4. Data Collected by Software System. Data collected through the Software System shall not constitute Confidential Information. Inergy Tech shall have the right to use and collect such data to create and provide industry and market research reports and databases, provided that such data will be reported in aggregate form without tying such data specifically to Customer and without identifying Customer specifically.
  7. Disclaimer of Warranties. THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, INERGY TECH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. INERGY TECH DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. INERGY TECH DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE SERVICES, THE CONTENT PASSING THROUGH ITS SERVICES, OR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH THE SERVICES. CUSTOMER ASSUMES ALL RISK FOR ANY DAMAGE TO CUSTOMER RESULTING FROM THE USE OF THE SERVICES. INERGY TECH DOES NOT AUTHORIZE ANYONE TO MAKE ANY WARRANTIES ON ITS BEHALF, AND CUSTOMER SHOULD NOT RELY ON ANY WARRANTIES MADE BY THIRD PARTIES.
  8. Limitation of Liability. CUSTOMER ACKNOWLEDGES THAT INERGY TECH HAS NOT PRICED THE SERVICES TO ACCOUNT FOR THE RISKS OF RELIANCE BY CUSTOMER ON THE SERVICES.
    NEITHER INERGY TECH NOR ANY OTHER PARTY INVOLVED IN CREATING OR DELIVERING THE SERVICES SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY USE OF, OR INABILITY TO USE, THE SERVICES.
    THE FOREGOING LIMITATION APPLIES REGARDLESS OF THE NATURE OF THE CAUSE OF ACTION (WHETHER BREACH OF CONTRACT OR TORT, INCLUDING NEGLIGENCE) AND EVEN IF INERGY TECH HAS PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
    THE FOREGOING LIMITATION APPLIES TO ALL DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY USE OF, OR INABILITY TO USE, THE SERVICES, INCLUDING BUT NOT LIMITED TO: (I) ERRORS, MISTAKES, OR INACCURACIES; (II) PERSONAL INJURY OR PROPERTY DAMAGE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF INERGY TECH’S OR THIRD PARTY SERVERS, INCLUDING ANY PERSONAL OR FINANCIAL INFORMATION STORED THEREIN; AND/OR (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE.
    TO THE EXTENT THAT ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATION SHALL APPLY TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
    INERGY TECH’S AGGREGATE LIABILITY TO CUSTOMER IN ANY CIRCUMSTANCE IS LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO INERGY TECH FOR THE SERVICES.
  9. Indemnification. Except for claims that the Software System infringes the intellectual property rights of a third party, Customer shall indemnify and hold Inergy Tech harmless from and against any third party claims, actions, damages, and liabilities arising out of Customer’s use of the Software System or Services, Customer combining the Software System with any software or hardware not supplied by or approved by Inergy Tech, and Customer’s breach of this Agreement.
  10. Term and Termination.
    1. Term. The Initial Term of this Agreement is set forth in Exhibit A. Unless terminated by either Party prior to the expiration of the Initial Term, the term shall be automatically renewed for a period of time equal to the Initial Term upon expiration of the Initial Term (“Renewal Term”). If Customer intends to terminate this Agreement at the conclusion of the Initial Term, Customer shall provide written notice to Inergy Tech at least thirty (30) days prior to the expiration of the Initial Term.
    2. Termination for Cause. This Agreement may be terminated for cause by either Party if the other Party is in material breach of any of its material obligations under this Agreement and fails to remedy such breach within thirty (30) days of receipt of a written notice specifying such breach.
    3. Termination for Convenience. Either Party may terminate this Agreement for convenience upon sixty (60) days prior written notice. In addition to providing sixty (60) days notice, if Customer terminates for convenience, Customer will be subject to a penalty fee in the amount of two (2) times the Customer’s previous month’s fees.
    4. Effect of Termination. Upon the effective date of expiration or termination of this Agreement, (a) the rights and obligations of the Parties will terminate, except that the rights and obligations that by their nature should survive shall survive such expiration or termination; (b) Inergy Tech may immediately cease providing the Services; (c) any and all payment obligations of Customer under this Agreement will become due immediately; and (d) within thirty (30) days, each Party shall return all Confidential Information of the other Party, except as required to comply with any applicable legal or accounting record keeping requirement.
  11. Miscellaneous.
    1. Power and Authority. Each Party represents and warrants that (a) it is duly organized, validly existing, and in good standing as a corporation or other entity as represented in the preamble of this Agreement; (b) it has the authority to enter into this Agreement, and (c) the individual executing the Agreement is authorized to do so on behalf of the Party.
    2. Relationship of the Parties. The sole relationship between the Parties shall be that of independent contractors. Nothing herein shall be construed to render the Parties to be partners, joint venturers, or agents of each other in any way whatsoever.
    3. Successors and Assigns; Assignment. This Agreement shall extend to, inure to the benefit of, and be binding upon the Parties hereto and their respective directors, officers, partners, proprietors, agents, servants, employees, representatives, affiliates, subsidiaries, shareholders, predecessors, and successors and assigns. However, this Agreement may not be assigned by either Party without the prior written consent of the other Party; provided, however, that either party may assign its rights under this Agreement to a parent, affiliate, subsidiary, or successor to its business.
    4. Force Majeure. Neither Party will be liable to the other Party on account of any loss or damage resulting from any delay or failure to perform all or part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the Parties. Such events, occurrences, or causes include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquakes, fires, explosions, governmental actions, floods, insurrections, power failures, hackers, and embargoes.
    5. Severability. If any portion or term of this Agreement is held unenforceable by an arbitrator or court of competent jurisdiction, the remainder of this Agreement shall not be affected and shall remain fully in force and enforceable.
    6. Waiver. The waiver of any breach of this Agreement by any Party will not be a waiver of any other prior or subsequent breach.
    7. Integration. This Agreement and Exhibit A collectively set forth the entire agreement and supersede any and all prior agreements, written or oral, between the Parties with respect to the subject matter of this Agreement. This Agreement may not be altered or amended except by a writing signed by all of the Parties to this Agreement expressly stating that such modification is intended. In the event of a conflict between the provisions of this Agreement and Exhibit A, the provisions of Exhibit A shall govern.
    8. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Oklahoma without regard to its conflict of laws principles. Any dispute, controversy, or claim that arises in whole or in part from this Agreement shall be exclusively decided by an arbitrator located in Oklahoma City, Oklahoma.
    9. Arbitration. Any and all disputes, controversies, or claims in connection with or arising out of this Agreement shall be determined by arbitration in Oklahoma City, Oklahoma before a single arbitrator who is a member of the American Arbitration Association. The Parties agree that there shall be no appeal from any arbitration ruling.
    10. Counterparts. This Agreement may be executed in two or more counterparts, which shall have the same effect as if all signatories had signed the same document. If so executed, the counterparts shall be deemed an original for all purposes and shall collectively constitute one agreement.