Appetizely Service and Platform. Pursuant to this Agreement, Appetizely agrees to provide Account Holder and its end users, access to the Appetizely service (the “Service”) through Appetizely’s online platform (the “Appetizely Platform”).
Terms of Payment. Account Holder shall pay Appetizely the fees set forth in the Specifications. Account Holder shall be solely responsible for the payment of, and shall pay when due and indemnify Appetizely against, all applicable federal and state taxes, and payments to Appetizely under this Agreement (except for taxes assessed on Appetizely’s net income).
Term; Termination. The term of this Agreement will be as set forth in the Specifications (the “Term”). Either party may terminate this Agreement in the event that the other party violates this Agreement and fails to cure such violation within thirty (30) days of receiving written notice thereof. In the event of any termination, Account Holder will remain liable for any amount due under this Agreement (adjusted on a pro rata basis, if applicable).
Intellectual Property Ownership and Licenses.
Appetizely Ownership Rights. Appetizely shall own and retain all right, title, and interest in and to the Service, and Appetizely Platform (except for any licensed content and software components included therein). Appetizely hereby grants to Account Holder a worldwide, royalty-free, non-exclusive, revocable, limited license to use the Service, and the Appetizely Platform during the Term as expressly provided hereunder. Account Holder agrees not to copy, alter, modify, or create derivative works of the Appetizely Platform or otherwise use the Service in any way that violates the use restrictions contained in this Agreement. Appetizely does not grant to Account Holder any license, express or implied, to the intellectual property of Appetizely or its licensors.
Account Holder Data. As between Appetizely and Account Holder, Account Holder shall retain all right, title and interest in and to all documents, messages, graphics, images, files, data and other information transmitted by Account Holder or its end users to Appetizely in connection with the Service, including any ideas or inventions contained therein (collectively, the “Account Holder Data”), provided, however, that Account Holder hereby grants to Appetizely a worldwide, royalty-free, non-exclusive license to use during the Term the Account Holder Data solely for the purposes of fulfilling its obligations hereunder. Notwithstanding the foregoing, “Account Holder Data” does not include non-identifiable aggregate data compiled by Appetizely for purposes of improving, maintaining, and/or optimizing the Service. Account Holder hereby irrevocably releases and forever discharges Appetizely and its affiliates and agents from any and all actions, causes of actions, claims, damages, liabilities and demands with respect to the Account Holder Data.
Account Holder Logos and Designs. Account Holder shall retain all right, title and interest in and to all of Account Holder’s logos, promotional graphics and related marketing designs (collectively, the “Account Holder Art”); provided, however, that Account Holder hereby grants to Appetizely a worldwide, perpetual, royalty-free, fully sublicenseable, non-exclusive license to use the Account Holder Art, as well as Account Holder’s corporate and/or trade name for purposes of marketing Appetizely’s products and services to third parties, subject to Account Holder’s right in each instance to approve the manner and form of such use (which approval shall be in writing and shall not be unreasonably withheld or delayed).
Disclaimers; No Warranties. UNLESS EXPRESSLY SET FORTH IN THIS AGREEMENT, APPETIZELY MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION THE SERVICES, THE APPETIZELY PLATFORM, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. APPETIZELY DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICE, AND ACCOUNT HOLDER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. ACCOUNT HOLDER SHOULD NOTE THAT IN USING THE SERVICE, SENSITIVE INFORMATION WILL TRAVEL THROUGH THIRD PARTY INFRASTRUCTURES WHICH ARE NOT UNDER APPETIZELY'S CONTROL (SUCH AS A THIRD PARTY SERVERS). APPETIZELY MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD PARTY INFRASTRUCTURES.
Representations and Warranties. Each party hereby represents and warrants to the other party that: (a) it has the full right, power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of such party; (c) it has obtained and shall maintain throughout the all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations (including Apple’s App Store Terms of Service); and (d) it shall comply with all applicable laws, rules and regulations, including applicable privacy and data protection laws.
Account Holder further represents and warrants that its chosen application name does not infringe the copyright, trademark, or any other intellectual property rights of any third party, and that such domain name is otherwise in compliance with this Agreement. Appetizely reserves the right, in its sole discretion, to relocate Account Holder's applications within the Appetizely Platform to an alternate name if Appetizely has reason to believe Account Holder’s chosen name is in violation of this section.
Indemnification. Each party agrees to indemnify and hold the other party and its affiliates and agents harmless from and against any losses, costs, liabilities and expenses, including attorneys’ fees, arising out of the breach of the representations, warranties and covenants made by such party herein, or out of such party’s negligence or willful misconduct. Account Holder further agrees to indemnify and hold Appetizely and its affiliates and agents harmless from and against any losses, costs, liabilities and expenses, including attorneys’ fees, arising out of the Account Holder Data. The indemnifying party shall be entitled to assume the defense and control of any matter for which it is required to indemnify the other party hereunder, and the other party agrees to cooperate with the indemnifying party’s defense of such claims; provided, however, that the indemnified party may also participate in such defense with counsel of its choosing, at its sole expense.
Limitation of Liability and Damages. EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SYSTEM FAILURE OR NETWORK OUTAGE, WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF DATA, LOSS OF BUSINESS, PROFITS OR OTHER LOSS, THAT RESULT FROM THIS AGREEMENT, EVEN IF SUCH PARTY OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, IN NO EVENT WILL EITHER PARTY’S OR ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AGGREGATE FEES DUE BY ACCOUNT HOLDER TO APPETIZELY HEREUNDER DURING THE PRIOR TWELVE (12) MONTHS.
Confidentiality. “Confidential Information” shall mean (a) the content of this Agreement; (b) all Account Holder Data; and (c) any information generally understood to be confidential in nature or designated as such by either party, but shall not include information that: (a) is independently developed by the receiving party without access to the other party's Confidential Information; (b) becomes publicly known through no breach of this Agreement by the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure; (d) has been approved for release in writing by the disclosing party; or (e) is required to be disclosed by a legal or governmental authority. During the term of this Agreement, and for twelve (12) months following termination, neither party will, subject to the license expressly granted herein, use, sell or disclose any Confidential Information of the other party except as specifically contemplated herein. Notwithstanding the foregoing, either party may disclose the other party’s Confidential Information solely as necessary to comply with applicable laws, rules or regulations.
Miscellaneous. This Agreement shall not be amended, altered or changed and no provision hereof shall be waived except by written agreement signed by both Appetizely and Account Holder or, in the case of a waiver, by the party waiving compliance. Neither party shall assign any of its rights, obligations or licenses hereunder without the prior written consent of the other party; provided, however, that either party may assign this Agreement and its rights and obligations hereunder to a successor of such party by way of merger, consolidation or acquisition of all or substantially all of the assets or business of such assigning party so long as such successor shall agree to be bound by all of the terms and provisions hereof. Appetizely and Account Holder are independent contractors, and neither Appetizely nor Account Holder is an agent, representative, employer, employee, or partner of the other. Appetizely and Account Holder shall each have sole responsibility for all acts and omissions of their respective personnel. This Agreement sets forth the entire agreement between Appetizely and Account Holder. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. Any notices under this Agreement shall be sent to the addresses set forth in the Specifications (or in a separate writing) by facsimile, electronic mail or nationally recognized express delivery service and deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be unenforceable in any respect, then such provision will be severed and the remaining provisions of this Agreement will remain in full force and effect.