Terms & Conditions
These Terms and Conditions (the “T&C”) apply to, and are incorporated into, each Order. The “Agreement” means these T&C and the Order(s), collectively. All capitalized terms not defined herein have the meaning given to them in the applicable Order.
1. DEFINITION OF TERMS
The following terms have the following meanings:
1.1. “Authorized User” means a specific and unique employee of Customer, who is provided access to the Services or Platform.
1.2. “Confidential Information” means all confidential or proprietary information disclosed by one Party to the other in connection with this Agreement, unless it is or later becomes publicly available through no fault of the other Party or it was or later is rightfully developed or obtained by the other Party from independent sources free from any duty of confidentiality. Without limiting the generality of the foregoing, Confidential Information shall include: (a) non-public Customer information, data, documentation, and materials, and (b) Smart Barrel’s Proprietary Items.
1.3. “Documentation” means Smart Barrel’s standard user guides and manuals relating to the Platform, including on-line help, as updated and amended from time to time.
1.4. “Equipment” means the equipment provided by Smart Barrel to Customer, including as further set forth on the applicable Order and any replacement equipment.
1.5. “Platform” means Smart Barrel’s proprietary technology platform, including all related software and Equipment.
1.6. “Proprietary Items” mean, collectively, the Services, Platform, Equipment, and Documentation, the visual expressions, screen formats, report formats and other design features of the Services and Platform, all ideas, methods, algorithms, formulae and concepts used in developing and/or incorporated into the Services, Platform, Equipment, or Documentation, and all future modifications, revisions, updates, refinements, improvements and enhancements of the Services, Platform, Equipment, or Documentation.
1.7. “Services” mean the subscriptions ordered by Customer under an Order, including limited access and use rights to the applicable Platform in accordance with the Documentation, Order and this Agreement.
1.8. “Subscription Term” means the duration of Customer’s right to receive, access, and use the Services and Platform, as set forth on an Order (the “Initial Subscription Term”) and any subsequent Renewal Subscription Terms. In the event that such duration is not specified on the applicable Order, the Initial Subscription Term shall be twelve (12) months. The Subscription Term shall automatically renew for a term that is equal to the Initial Subscription Term, unless one Party provides the other Party at least sixty (60) days written notice of its intent to not renew the Subscription Term (each a “Renewal Subscription Term”).
2. SUBSCRIPTION RIGHTS AND SERVICES
2.1. Subscription Rights; Smart Barrel Obligations. Subject to the terms and conditions of this Agreement, Smart Barrel shall make available to Customer and its Authorized Users on a non-exclusive and non-transferable basis during the Subscription Term the Services and Equipment and applicable functions and features in accordance with the Documentation and applicable Order(s). Smart Barrel shall provide support in accordance with its then current policies and practices for the Services and Platform. From time to time in accordance with Smart Barrel’s generally applicable policies and procedures, Smart Barrel shall make available and implement upgrades, enhancements, and error corrections when such upgrades, enhancements and error corrections are generally made available to its other clients.
2.2. Customer Responsibilities. Customer shall (a) be responsible for Authorized Users’ acts and omissions, (b) use commercially reasonable efforts to prevent unauthorized access to or use of, and loss or damage to, the Platform, and notify Smart Barrel promptly of any such event or circumstance, and (c) use the Services and Platform only in accordance with this Agreement, the Documentation and applicable laws and regulations for its internal business functions.
2.3. Restrictions. Customer shall not (and shall not permit any Authorized User to) (a) make the Services or Platform available to any third party other than Authorized Users, (b) resell, lease, distribute, transfer or otherwise make available the Services or Platform on a time-sharing or service bureau basis, (c) use the Services or Platform to violate any laws or regulations, (d) use the Services or Platform to store or transmit malicious code, (e) decompile, disassemble, or reverse engineer the Services or Platform, in whole or in part; or (f) use or reference the Services or Platform to develop a competing service or product.
3.1. General. Smart Barrel shall deliver to Customer the Equipment in accordance with the Order. Subject to Customer’s compliance with this Agreement, including, without limitation, payment of amounts due hereunder, Customer shall be entitled to possess and use the Equipment during the Subscription Term. Customer will use, operate, and care for the Equipment in accordance with this Agreement and the Documentation. Customer is responsible for keeping the Equipment in good condition and working order, ordinary wear and tear excepted.
3.2. Replacement of Damaged or Lost Equipment. In the event that the Equipment is lost or becomes damaged or is not functioning properly during the Subscription Term, Smart Barrel will replace the Equipment, provided that Customer promptly notifies Smart Barrel, returns the damaged Equipment to Smart Barrel as instructed by Smart Barrel, and pays any fees indicated in the Order for such replacement Equipment, as and if applicable. Without the prior written consent of Smart Barrel, Customer shall not make any alterations, modifications or attachments to the Equipment. All required alterations, modifications and repairs to the Equipment shall be performed by Smart Barrel (or its designee).
3.3. Equipment Liens, Restrictions, and Ownership. Customer will not sell, assign, lease, sublease, rent, or transfer the Equipment to any third party or obtain or permit any lien, security interest or other encumbrance to apply to the Equipment, without obtaining Smart Barrel’s prior written consent in each case. Customer will cooperate with Smart Barrel in protecting and securing Smart Barrel’s rights and interest relating to the Equipment upon request and hereby grants Smart Barrel a security interest in and to the Equipment. Subject to the rights expressly granted in this Agreement, as between the Parties, Smart Barrel shall own, hold and retain all right, title and interest to the Equipment, and any and all additions, improvements, repairs, replacements or modifications thereto. Customer understands and acknowledges that it neither owns nor acquires any ownership rights in the Equipment.
3.4. Return of Equipment. Within fifteen (15) days after the expiration or termination of this Agreement, Customer shall, at its expense, return the Equipment to Smart Barrel in the same condition as such Equipment was originally received by Customer, ordinary wear and tear excepted, or pay the amounts indicated in the Order.
4. Customer Data
4.1. Customer Data. As between the Parties, Customer retains all of its right, title and interest in and to all data it or its Authorized Users enter into the Platform (“Customer Data”) and represents and warrants that it has obtained all consents necessary for Smart Barrel to use and process the Customer Data in accordance with this Agreement and applicable law and regulations.
4.2. Smart Barrel Rights and Obligations. Customer hereby grants Smart Barrel a royalty-free license to use and process such Customer Data to provide the Services and otherwise fulfil its obligations and exercise its rights under this Agreement. This includes the right for Smart Barrel to engage third party data processors and telecommunication, networking, and cloud providers. Smart Barrel will maintain reasonable and appropriate data safeguards and procedures designed to prevent the authorized use or disclosure of Customer Data in its possession or control (“ Data Safeguards”). Customer Data may be stored on media or hardware containing other customer data both during and after the Subscription Term, provided such media and hardware are subject to the Data Safeguards. Smart Barrel may provide copies or access to Customer Data as required by a court order or regulatory authority. Smart Barrel may aggregate and anonymize any data or information relating to Customer Data or the use of the Services or Platform to monitor, improve, or expand the Services, Platform or Smart Barrel’s commercial offerings notwithstanding anything to the contrary. As between the Parties, any such aggregated and anonymized data or information provided or processed by Smart Barrel is owned by Smart Barrel. Aggregated and anonymized data will not include personally identifiable data.
4.3. End of Subscription Term; Data Transfer. Upon the termination or expiration of the Agreement and subject to payment of all amounts then due and owing, Smart Barrel will transfer a copy of Customer Data in Smart Barrel’s possession or control to Customer within sixty (60) days following any termination or expiration (or otherwise upon Customer’s reasonable request). Smart Barrel is not obligated to store any Customer Data for more than sixty (60) days following the termination or expiration of the Subscription Term, but may do so for a mutually agreed storage fee. Smart Barrel will delete any Customer Data in its control or possession thereafter (other than archival copies which remain subject to the Data Safeguards).
5.1. Fees and Expenses. In consideration for the rights and subscriptions granted to Customer under an Order, Customer shall pay to Smart Barrel the fees and expenses as determined under the Orders and this Agreement. After the Initial Subscription Term, fees are subject to change by Smart Barrel once a year upon thirty (30) days’ notice to the extent Smart Barrel’s list prices change. Unless otherwise provided in an Order, all such fees and expenses shall be due and payable within thirty (30) calendar days after an invoice is issued by Smart Barrel. Any portion of any fees due hereunder that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
5.2. Taxes. The fees and other amounts payable by Customer to Smart Barrel do not include any taxes of any jurisdiction that may be assessed or imposed upon the Services, Equipment, Platform, Documentation, or otherwise, including sales, use, excise, value added, personal property, export, import and withholding taxes. Customer shall directly pay any such taxes assessed, excluding only taxes based upon Smart Barrel’s net income.
5.3. Suspension. In the event that Customer’s account is more than thirty (30) days overdue, Smart Barrel shall have the right, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend Customer’s use of the Services, Equipment and Platform and/or repossess the Equipment, without further notice to Customer, until Customer has paid the full balance owed, plus any interest due.
6. WARRANTIES AND LIMITATIONS
6.1. By Customer. Customer represents and warrants that it will use the Services and Platform in accordance with applicable laws and regulations, including labor and employment laws relating to Authorized Users and its business.
6.2. Performance Warranty. Smart Barrel warrants that the Services and Platform (including Equipment) shall operate as described in the then current Documentation in all material respects during the Subscription Term. The foregoing warranty does not apply to failures caused by Customer’s or its Authorized Users’ breach of this Agreement, negligence, misconduct, or mis-use. Customer will timely notify Smart Barrel of any known non-conformance to the foregoing warranty. Smart Barrel’s only obligation under this warranty is to correct any failure to so perform, or if such correction is not possible in a commercially reasonable timeframe and such failure is material, then Customer may elect to terminate for such uncured material breach and receive a refund of any fees paid for the specific non-conforming Services and/or Platform during the periods of non-conformance and refund any pre-paid fees for Services not provided. This section sets forth Customer’s sole and exclusive remedy for a breach of this warranty.
6.3. Disclaimer. Except as expressly stated ABOVE IN THIS SECTION 6, the EQUIPMENT, Platform, SERVICES, and Documentation are provided “as is” AND “AS AVAILABLE” and Smart Barrel makes no representations or warranties, oral or written, express or implied, arising from course of dealing, course of performance, usage of trade, or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title, non-interference, or non-infringement. Smart Barrel makes no representations or warranties, nor shall Smart Barrel have any liability with respect to: (A) ANY INCORRECT OR INACCURATE DATA GENERATED IN CONNECTION WITH THE PLATFORM AND SERVICES; (B) UNAVAILABILITY OR OUTAGES; OR (C) SECURITY BREACHES OR LOST OR DISCLOSURE OF CUSTOMER DATA ARISING FROM CIRCUMSTANCES OUTSIDE SMART BARREL’S REASONABLE CONTROl, INCLUDING THE INTERNET OR THIRD PARTY TELECOMMUNICATION, NETWORK OR CLOUD PROVIDERS.
6.4. Limitations of Liability. IN NO EVENT WILL SMART BARREL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF REVENUE, SAVINGS OR DATA OR WORK STOPPAGE) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE USE OF ANY SERVICES, PLATFORM, OR DOCUMENTATION BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SMART BARREL’S total liability under this Agreement and all Orders shall under no circumstances exceed the fees actually paid by the Customer to Smart Barrel during the prior twelve (12) months. THE LIMITATIONS OF LIABILITY WILL NOT APPLY TO THIRD PARTY CLAIMS SUBJECT TO INDEMNIFICATION, THE UNAUTHORIZED USE OR DISCLOSURE OF PROPRIETARY ITEMS, OR AMOUNTS, FEES AND EXPENSES DUE AND PAYABLE TO Smart Barrel UNDER THIS AGREEMENT OR ANY ORDER.
All Confidential Information of a Party (“Disclosing Party”) in the possession of the other (“Receiving Party”), whether or not authorized, shall be held in strict confidence, and the Receiving Party shall take all steps reasonably necessary to preserve the confidentiality of the Confidential Information. The Disclosing Party’s Confidential Information shall not be used or disclosed by the Receiving Party for any purpose except (a) as necessary to exercise rights or perform obligations under this Agreement, or (b) as required by law, provided that the other Party is given a reasonable opportunity to obtain a protective order. The Receiving Party shall limit its use of and access to the Disclosing Party’s Confidential Information to only those of its employees or representatives whose responsibilities require such use or access. The Receiving Party shall advise all such employees and representatives, before they receive access to or possession of any of the Disclosing Party’s Confidential Information, of the confidential nature of the Confidential Information and require them to abide by the terms of this Section or substantially similar requirements. Either Party may disclose this Agreement to its actual or potential investors, creditors, professional advisors, or attorneys who are subject to a duty of confidentiality.
8. OWNERSHIP; INTELLECTUAL PROPERTY
8.1. General. All Proprietary Items provided to or accessed by Customer under this Agreement are being made available on a strictly confidential and limited use basis in accordance with this Agreement and have great commercial value to Smart Barrel. This Agreement is not an agreement of sale, and no title, patent, copyright, trademark, trade secret, intellectual property or other ownership rights in or to any Proprietary Items are transferred to Customer under this Agreement. Smart Barrel reserves all rights not expressly granted by this Agreement.
8.2. Title and Ownership. All right, title, and interest in and to the Proprietary Items (including all related patent, copyright, trademark, trade secret, intellectual property and other ownership rights) are and will remain the sole and exclusive property of Smart Barrel. Any derivative works, modifications, or enhancements relating to the Proprietary Items (whether created alone by either Party or jointly by or on behalf of both Parties or their representatives through Professional Services or otherwise) will be solely and exclusively owned by Smart Barrel. Customer hereby assigns to Smart Barrel any rights, title and interest, including all intellectual property rights in any feedback, suggestions, ideas, derivative works, modifications, enhancements, or improvements related to the Proprietary Items that Customer or any of its Authorized Users or representatives provide, propose, create, conceive, author or develop relating to this Agreement or their use of the Services or Platform. Customer will execute and deliver (or cause its Authorized Users and other representatives to execute and deliver) any additional documents deemed reasonably necessary or appropriate to perfect, maintain, protect, or enforce Smart Barrel’s rights described above and the intent of this Section.
9.1. By Smart Barrel. Smart Barrel shall defend, indemnify, and hold Customer harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of any third party claim that any use of, or access to, the Proprietary Items by Customer as expressly authorized under this Agreement infringes or misappropriates, as applicable, any U.S. patent issued as of the Effective Date or any copyrights or trade secrets. Notwithstanding the foregoing, Smart Barrel shall have no obligation or liability to the extent that the alleged infringement or misappropriation arises from (1) the combination, operation, or use of the Proprietary Items with products, services, deliverables, materials, technologies, business methods or processes not furnished by Smart Barrel; (2) modifications which were not made by Smart Barrel; (3) Customer’s breach of this Agreement or use of the Proprietary Items other than in accordance with this Agreement (collectively, “ IP Exclusions”). Upon the occurrence of any claim for which indemnification is or may be due under this Section, or in the event that Smart Barrel believes that such a claim is likely, Smart Barrel may, at its option (i) modify the Proprietary Item so that it becomes non-infringing, or substitute functionally similar services, platforms, deliverables, or documentation; (ii) obtain a license to the applicable third-party intellectual property; or (iii) terminate this Agreement (or the applicable Orders) on written notice to Customer and refund to Customer any pre-paid fees for Services not provided. The obligations set forth in this Section shall constitute Smart Barrel’s entire liability and Customer’s sole remedy for any infringement or misappropriation.
9.2. By Customer. Customer shall defend, indemnify, hold Smart Barrel harmless from and against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of any third party claim resulting from or relating to the IP Exclusions, Customer’s breach of its representations or warranties, or Customer’s relationship with its Authorized Users (including claims for lost wages or employment practices).
9.3. Procedures. The foregoing indemnification obligations are conditions upon the indemnified party providing: (a) prompt written notice of such claim to the indemnifying party; (b) authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as reasonably requested by the indemnifying party in connection with such defense and/or settlement. In any action for which the indemnifying party provides defense on behalf of the indemnified party, the indemnifying party may participate in such defense at its own expense by counsel of its choice.
10.1. Termination for Cause or Bankruptcy. Either Party may terminate this Agreement (including the Orders) immediately on giving notice in writing to the other Party if the other Party: (a) commits a material breach and, in the case of a material breach capable of being cured, failed to cure that breach within thirty (30) days after the receipt of a request in writing to cure such breach; or (b) files for bankruptcy; (ii) becomes or is declared insolvent, or is the subject of any proceedings related to its liquidation, insolvency or the appointment of a receiver or similar officer for it; (iii) makes an assignment for the benefit of all or substantially all of its creditors; or (iv) enters into an agreement for the cancellation, extension, or readjustment of substantially all of its obligations.
10.2. Orders. Orders will be terminated if this Agreement is terminated or as otherwise provided in the applicable Order. This Agreement will be deemed terminated if there are no active Orders or all Subscription Terms have expired or terminated.
10.3. Effect of Termination. Upon any termination or expiration of this Agreement, whether under this Section 10 or otherwise, Smart Barrel shall perform its data transfer obligations under Section 4.3 of the Agreement and Customer shall: (a) discontinue all access and use of all Proprietary Items, (b) promptly return to Smart Barrel the Equipment and all copies of the Documentation and any other Proprietary Items then in Customer’s possession or control, and (c) give written notice to Smart Barrel certifying that all copies of the Proprietary Information have been permanently deleted or returned. Customer shall remain liable for all payments due to Smart Barrel with respect to the period ending on the date of termination. For any termination other than a termination for good cause by Customer in accordance with Section 10.1, the balance of all remaining subscription fees relating to the then current Subscription Term will be due and payable. The provisions of Sections 2.3, 3.5, 4, 5, 6.3, 6.4, 7, 8, 9, 10.3, and 11 shall survive any termination or expiration of this Agreement as well as any other disclaimers or provisions that contemplate survival.
11. OTHER PROVISIONS
11.1. Notice. All notices, consents and other communications under or regarding this Agreement shall be in writing and shall be deemed to have been received on the earlier of the date of actual receipt or the first business day after being sent by a reputable overnight delivery service. Either Party may change its address for notices by giving written notice of the new address to the other Party.
11.2. Assignment. This Agreement shall bind, benefit and be enforceable by and against Smart Barrel and Customer and, to the extent permitted hereby, their respective successors and assigns. Except as otherwise provided below, neither Party may assign any of its rights under this Agreement, and any attempt at such assignment will be void without the other Party’s prior written consent, which consent will not be unreasonably withheld. Smart Barrel may assign this Agreement in connection with any merger, reorganization, acquisition or sale of all or substantially all of its asset or stock without Customer’s consent. If Customer is subject to a merger, reorganization, acquisition or sale of all or substantially all of its asset or stock, Smart Barrel will consent to such assignment if (a) the proposed assignee’s use of the Services and Platform does not materially change the usage of the Service or Platform prior to such assignment or if such assignee agrees to pay a reasonable fee for any increased usage based on Smart Barrel’s then current pricing, (b) Customer is in compliance with this Agreement, and (c) such proposed assignee’s credit rating is equal to or better than Customers.
11.3. Export Laws and Use Outside of the United States. Customer shall comply with the export related laws and regulations. Customer shall not export or re-export directly or indirectly (including via remote access) any Proprietary Items (or parts thereof) to any applicable jurisdiction or entity prohibited by law or to which a license is required without first obtaining a license from the applicable regulatory authority.
11.4. Relationship. The relationship between the Parties under this Agreement is that of independent contractors and not partners, joint venturers or agents.
11.5. Entire Understanding. This Agreement, which includes and incorporates Orders, attachments, and any other schedules, exhibits and addenda attached to it, states the entire understanding between the Parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. In the event of any conflict between these Terms and Conditions and an Order, the Order shall govern.
11.6. Modification and Waiver. No modification of this Agreement, and no waiver of any breach of this Agreement, shall be effective unless in writing and signed by an authorized representative of both Parties. This Agreement may not be modified or amended without written agreement of the Parties. No waiver of any breach of this Agreement, and no course of dealing between the Parties, shall be construed as a waiver of any subsequent breach of this Agreement.
11.7. Severability. If any portion of any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, (a) such unenforceable portion of the provision will be deemed severed from this Agreement, (b) the validity and enforceability of the remaining portion of the provision and the other provisions of this Agreement will not be affected or impaired, and (c) this Agreement will be amended in order to effect, to the maximum extent allowable by law, the original intent of such provision.
11.8. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
11.9. Governing Law. This Agreement will be governed by the laws of the State of Florida, without regard to any provision of law that would require or permit the application of the substantive law of any other jurisdiction or to the United Nations Convention on the International Sale of Goods. In the event of a dispute, the parties submit to the exclusive jurisdiction of the Federal and state courts sitting in Miami, Florida.
11.10. Force Majeure. Except with respect to Customer’s payment obligations, neither Party shall be liable for, nor shall either Party be considered in breach of this Agreement due to any failure to perform its obligations under this Agreement as a result of a cause beyond its control, including any act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including the Internet or other networked environment), power or other utility, labor problem, unavailability of supplies or any other cause which could not have been prevented by the non-performing Party with reasonable care.
11.11. Use of Customer’s Name. Customer hereby authorizes Smart Barrel to use Customer’s name in any routine list of Smart Barrel clients and as a reference. Smart Barrel may not use Customer’s name in any press release without the prior written consent of Customer.