RETAILER SOFTWARE SUBSCRIPTION & SUPPLY AGREEMENT
Last Updated: Nov 2019
This Software Subscription and Supply Agreement (this “Agreement”) determines the Terms of Service between you, the Sole Proprietor, Retailer or Wholesale Client (“Company”) and Diamondere, Inc., a Delaware corporation located at _1 Maple Street #2204, Redwood City, CA 94063__ (“Supplier”) (each, a “Party” and collectively, the “Parties”).
WHEREAS, Company desires to procure from Supplier, and Supplier desires to provide to Company on a non-exclusive basis certain internet-based software-enabled services for designing customer jewelry and related services described in this Agreement (including any Exhibit(s) attached hereto), on the terms and conditions specified herein,
WHEREAS, Company’s use of such software enabled services will result in customer orders for custom jewelry that may be sent from Company to Supplier, and
WHEREAS, Company desires for Supplier to supply custom jewelry for Company’s customers based on such customer orders resulting from Company’s use of such services under the terms and conditions set forth herein.
NOW, THEREFORE, Company and Supplier agree as follows:
1.1 Term of Agreement. The initial term of this Agreement begins on the Effective Date and shall continue for a period of twelve (12) months thereafter (“Initial Term”) and shall automatically renew for successive one-year periods (“Renewal Term(s)”), unless either Party gives the other notice of non-renewal hereof at least one month prior to the desired end date.
1.2 Termination by Supplier. Supplier may terminate this Agreement or the applicable Statement of Work with immediate effect upon written notice to Company, if Company breaches any material provision of this Agreement, including without limitation failure to pay Supplier when due properly invoiced, undisputed Fees that in the aggregate exceed two (2) months of Fees.
1.3 Effect or Termination on Order Documents. If this Agreement is terminated for any reason, this Agreement shall continue to govern all Orders entered into by the Parties prior to the date of termination of this Agreement until the expiration or termination of such Order Documents, unless otherwise agreed to by the Parties in writing.
1.4 Fees Payable Upon Termination. Within thirty (30) days following termination or expiration of this Agreement, Company shall pay to Supplier (a) any Fees due and payable for Services that were properly performed prior to the effective date of such termination or expiration, and (b) any Fees due and payable for Products and Custom Products that were ordered prior to Termination.
2.0 Trial period and acceptance.
2.1 Company shall have up to a thirty (30) day trial period for $30 from the Effective Date, or such later date that the Solution is provided to Company, in order to determine, in Company’s sole and reasonable discretion, whether the Solution is acceptable. If no notice has been received by the end of the thirty (30) day trial period, then Supplier shall invoice Company for the next month of Services at the monthly subscription rate, and payment for Services shall be due and payable by Company.
3.0 Subscription rate for services; invoicing; payment terms
3.1 The initial subscription rate for the Services shall be one hundred and ninety-nine dollars ($199.00) per month for the Initial Term. The monthly subscription rate for Renewal Term(s), shall be communicated to Company in writing before the renewal of the contract each year and may be subject to change.
3.2 Supplier shall invoice Company (i) on a monthly basis for the Initial Subscription Rate, and (ii) either on a monthly or as-received basis for the Products & Custom Orders Shipped to the Company. Each invoice will reference the appropriate Orders. Unless otherwise agreed in writing by the Parties, payment shall be due within two (2) weeks of the invoice from Supplier. If Supplier does not receive payment by the due date, an interest charge may be added at the rate of 1.0% per month (12% per year) or the maximum legal rate, whichever is less, to unpaid invoices from the due date thereof.
3.3 Banking fees (other than those imposed by Supplier’s bank) and taxes (other than taxes on Supplier’s income) that may be due on amounts paid or Services provided pursuant to this Agreement, including but not limited to sales or use taxes, duties or value-added tax (VAT), shall be paid by Company. If Supplier is required to collect any such taxes on behalf of Company, then Supplier shall include such taxes as a separate line on the invoice and remit such taxes to the appropriate taxing authority.
4.1 Solution. During the Term Supplier shall grant and hereby grants to Company and the Service Recipients a right and license to access and use the Solution. Through its use of the Solution, Company will have a portal that provides access to Product Designs, and Company can select from available design options for each Product Design and can submit an Order to Supplier for a Product that is based on the Product Designs. If a Company desires to modify a Product Design in order to produce a Custom Product, Company shall specify the desired modifications in an Order. If Supplier in its sole discretion is willing to fulfil the Order for the Custom Product, Supplier will prepare a CAD image of the Customized Product Design at no charge to Company and send it to Company for review within five (5) business days of receipt of the Order together with a price, an expected delivery date, and a link to purchase the custom Product. At no time shall Company be obliged to order such custom Product.
4.2 Product Designs. Supplier shall make Supplier Product Designs available nonexclusively to Company via the Solution. In its sole discretion, at Company’s request, which shall not be unreasonably denied, Company also may upload Company Product Designs into the Solution and make such Company Product Designs available exclusively to Company via the Solution. The first five (5) Company Product Designs shall be uploaded to the Solution and no cost to Company, and Company shall be charged a fee per Company Product Design for any additional uploads.
4.3 Supplier Product Design Images. Supplier Product Design Images are meant to be used ONLY on the portal and may not be uploaded to third party e-commerce platforms such as eBay, Etsy, Amazon, or Facebook Marketplace. Company may request for separate marketing images for third party websites from Supplier, and Supplier, in its sole discretion, may deny the request or grant it with additional charges due as applicable. Supplier Product Design Images may be permitted on social media sites for promotion & marketing as long as this contract is in effect.
4.4 Branding. Company’s brand, logo, etc. will be placed prominently at the top of the portal for the Solution. The phrase “Powered by Diamondere” may be placed at the bottom of the portal.
4.5 Hardware. Supplier will not pay for or provide any machinery, computers, tablets, phones, or other hardware equipment to Company for showcasing the Solution to its clients. The Company will bear the expenses for such hardware on its own.
4.6 Limitations on Company’s Use of the Solution and Services
(a) Limitations on Reverse Engineering, Decompilation, Disassembly, or Modification. Company may not reverse engineer, decompile, or disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Solution or modify, adapt, translate, recast, alter, or create derivative works from the Solution or any portion of it except and only to the extent that such activity is expressly permitted by applicable law, or by prior written approval of Supplier (which approval may be conditioned, restricted, or denied in the Supplier’s sole discretion), notwithstanding this limitation.
(b) Transfer Restrictions. Company may not distribute, rent, sell, assign, sublicense, lease, make available on a network, or otherwise, to multiple users (except as may be expressly permitted under this Agreement), or otherwise transfer the Solution or use the Solution for timesharing or service bureau purposes or otherwise for the benefit of a third party.
(c) Use in Other Products. Company may not incorporate the Solution or any portion of it into, or use the Solution or any portion of it, to develop other algorithms, programs, software, applications, or products unless expressly approved in writing in advance by Supplier, which approval may be conditioned, restricted, or denied in Supplier’s sole discretion.
(d) Separation of Components. The Solution is licensed as a platform of products, and its components, as initially provided, may not be further separated for any purpose, including, but not limited to, inclusion in any other software, algorithms, programs, applications, system or platform.
(e) Copying Restrictions. Any copy of the Solution that is permitted under this Agreement shall include the same proprietary and copyright notices and legends as included in the authorized copy of the Software originally provided by Supplier or an authorized third party, and Customer shall not remove any such notices or legends from the Solution or any permitted copies or modifications of the Solution, or otherwise modify the Solution. Customer may not otherwise copy or modify the Solution or provide copies of the Solution, in whole or in part, to any other party except as may be expressly permitted by this Agreement.
(f) Ownership. The Software is licensed, not sold, to Company for use only under the terms of this Agreement. Customer hereby acknowledges that Supplier retains ownership of the Software, any and all portions, copies, or authorized modifications of it, and all rights in and to it globally, including, but not limited to, intellectual property rights. Upon termination of this Agreement for any reason, all rights granted to Company under this Agreement shall terminate and Company shall cease to use the Solution. Personally identifying data that may have entered by Company into the Solution during Company’s authorized use of it remains Company’s, and Supplier claims no ownership or rights in or to it. Supplier shall retain all right, title and interest in and to any non-personally identifying data or aggregated data generated by Supplier, whether derived solely from, in part from, or without reference to data that Company may have entered.
5.0 PROPRIETARY RIGHTS.
5.1 Solution. Supplier shall own the Solution and the Deliverables and any modifications, enhancements or derivations of thereof, that are developed, in whole or in part, pursuant to this Agreement by or on behalf of Supplier or Supplier Agents.
5.2 Product Designs. Supplier shall own all right, title and interest in and to Supplier Product Designs. Company shall own all right, title and interest in and to Company Product Designs. A Customized Product Design shall be owned by whichever Party owns the Product Design on which it is based.
5.3 Supplier IP. Supplier shall retain all right, title and interest in and to the Supplier IP, including worldwide ownership of patent, copyright, trade secret and other proprietary right.
5.4 No Implied Rights. There are no implied rights or licenses granted by either Party to the other Party under this Agreement, and each Party hereby expressly disclaims all other license grants (whether express, implied or statutory) other than those expressly set forth in this Agreement. Except as otherwise expressly set forth in this Agreement, each Party reserves all rights in its own intellectual property rights.
6.0 SUPPLY TERMS
6.1 Orders. Supplier’s commitments are limited to the details included in Order(s), including price, delivery dates, etc.
6.2 No Minimum Purchase Obligations. Company has no minimum purchase obligations under this Agreement.
6.3 Order Fulfilment. Supplier will use commercially reasonable efforts to produce and deliver Product or Custom Product to Company in order to fulfil the Order(s), respectively. Order(s) shall not amend, delete, or add to the terms of this Agreement.
6.4 Cancellation of Order. Company may cancel, with no penalty, an Order prior to shipment of Product.
6.5 Shipping Terms. Supplier will supply and deliver Product ordered by Company in accordance with the quantities, shipping instructions, and other information specified by Company in the applicable Order. Products will be delivered to Company or, at Company’s request, directly to Company’s customer. Supplier shall guarantee that Products and/or Custom Products will arrive in good condition at no cost to Company. Title, ownership and risk of loss and damage will pass to Company when the Product or Custom Product is provided by the shipper to Company. Company will bear brokers fees, duties, taxes and other charges imposed by any country or subdivision thereof as necessary for shipment of Product by Supplier to Company.
6.6 Returns; Credits/Refunds. Company may return a Product or Custom Product to Supplier at Company’s expense for any reason within one hundred (100) days of shipment, provided the security tag is still attached to the Product or Custom Product. Within thirty (30) days of receipt of the Product or Custom Product returned by Company, Supplier shall credit the price paid by Company on the next invoice, or, if the Agreement is terminated, refund the price paid by Company.
7.0 CONFIDENTIAL INFORMATION
7.1 Confidential Information.
7.1.1 Confidentiality Obligations. From time to time, either Party (the “Disclosing Party”) may disclose or make available to the other Party (the “Receiving Party”), whether orally, electronically or in physical form, confidential or proprietary information of or in the possession of the Disclosing Party (including confidential or proprietary information of a third party that is in the possession of the Disclosing Party) in connection with this Agreement. Neither Party shall disclose the Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party and shall only access and use the Confidential Information as required to and for the limited purpose of performing its obligations under this Agreement. For Confidential Information that constitutes a “trade secret” under applicable Law, these confidentiality obligations will continue until such information ceases to constitute a “trade secret” under such applicable Law. The Receiving Party will be responsible for any breach of this Section by its employees, representatives, and agents and any third party to whom it discloses Confidential Information in accordance with this Section.
7.1.2 Exclusions. For purposes hereof and excluding Personal Data which shall always be deemed to be Confidential Information, the term Confidential Information will not include any information that the Receiving Party can establish by convincing written evidence: (i) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party; (ii) was acquired by the Receiving Party from a third party having the legal right to furnish same to the Receiving Party; or (iii) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the Receiving Party).
7.1.3 Required Disclosures. These confidentiality obligations will not restrict any disclosure required by order of a court or any government agency, provided that the Receiving Party gives prompt notice to the Disclosing Party of any such order and reasonably cooperates with the Disclosing Party at the Disclosing Party’s request and expense to resist such order or to obtain a protective order.
8.0 REPRESENTATIONS, WARRANTIES AND COVENANTS.
Disclaimer. Except as specifically set forth in this agreement, neither party makes any representations or warranties and each party hereby specifically disclaims any such representations and warranties of any kind or nature, express or implied, including, without limitation, warranties of merchantability and fitness for a particular purpose, with respect to the services to be provided under this agreement.
9.1 Indemnity by Company. Company shall indemnify, defend, and hold harmless Supplier and Suppliers Affiliates, officers, directors, managers, owners, employees, successors and permitted assigns (the “Supplier Indemnitees”) from and against, any Losses suffered, incurred or sustained by Supplier Indemnitees or to which Supplier Indemnitees become subject, resulting from, arising out of or relating to any third party claim (including any claim by personnel of Company and Company Agents):
9.1.1 relating to a breach by Company or Company Agents of Section 7.0 (Confidential Information);
9.1.2 relating to any amounts, including taxes, interest and penalties, assessed against Supplier that are the obligation of Company;
9.1.3 relating to personal injury (including death) or property damage caused by Company or Company Agents; and
9.1.4 relating to fraud, gross negligence or intentional misconduct by Company or Company Agents.
10.0 DAMAGES; LIMITATIONS ON LIABILITY.
10.1 Direct Damages. THE LIABILITY OF A PARTY TO THE OTHER PARTY FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY COMPANY TO SUPPLIER DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE ACTION OR CLAIM (OR IF TWELVE (12) MONTHS HAVE NOT ELAPSED SINCE THE EFFECTIVE DATE, THE MONTHLY FEES ACTUALLY PAID BY COMPANY).
10.2 Consequential Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER, WHETHER IN CONTRACT, TORT OR BREACH OF WARRANTY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT.
11.0 MISCELLANEOUS PROVISIONS.
11.1 Relationship. The Parties intend to create a nonexclusive, independent contractor relationship and nothing contained in this Agreement shall be construed to make either Company or Supplier partners, joint ventures, principals, agents or employees of the other. No officer, director, employee, Affiliate or Supplier Agent retained by Supplier to perform work on Company’s behalf under this Agreement shall be deemed to be an employee of Company or a Company Agent. Neither Party shall have any right, power or authority, express or implied, to bind the other. Company is free to engage other suppliers to supply products that are similar to the Product(s). Similarly, Supplier is free to offer and provide the Solution and Products to third parties; provided however, that Supplier does not breach its obligations (including without limitation, its confidentiality obligations) set forth in this Agreement.
11.2 Consents and Approval. An approval or consent given by a Party under this Agreement shall not relieve the other Party from responsibility for complying in good faith with the requirements of this Agreement, nor shall it be construed as a waiver of any rights under this Agreement, except as and to the extent otherwise expressly provided in such approval or consent.
11.3 Waivers. No delay or omission by either Party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any Party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be signed by the Party waiving its rights.
11.4 Third Party Beneficiaries. This Agreement is entered into solely between Company and Supplier, may be enforced only by Company and Supplier, and will not be deemed to create any rights in third parties, including customers, suppliers and subcontractors of a Party, or to create any obligations of a Party to any such third party.
11.5 Entire Agreement. This Agreement represents the entire agreement between the Parties with respect to its subject matter and supersedes all prior discussions and agreements between the Parties with respect to such subject matter.
11.6 Amendments. No amendment to, or change, waiver or discharge of, any provision of this Agreement shall be valid unless in writing and signed by both Parties.
11.7 Survival. Sections of Proprietary Rights, Confidential Information, Indemnification, Damages, and Miscellaneous shall survive the expiration or termination of this Agreement.
11.8 UCITA. The Parties agree that the Uniform Computer Information Transactions Act (UCITA), as passed by any state, will not apply in any way to this Agreement.
11.9 Dispute Resolution.Any type of controversy, claim, or dispute arising from or relating to this Agreement, including controversies, claims, or disputes with respect to its formation, execution, validity, application, interpretation, performance, breach, termination, or enforcement (each, a “Dispute”) between the Parties hereto (other than those arising under Section 9.0 (Indemnification)), shall, as a condition precedent to any arbitration or court proceeding, be mediated by the Parties. Notwithstanding the foregoing, Supplier may proceed direct to court or arbitration without the requirement of mediation or arbitration in order to: (a) prevent the lapse of any statute of limitations; (b) preserve its rights with respect to creditors; (c) obtain an injunction or order compelling specific performance; or (d) seek other forms of equitable relief.
11.10 Governing Law. This Agreement and the rights and obligations of the Parties under this Agreement shall be governed by and construed in accordance with the Laws of the State of California, without giving effect to the principles thereof relating to the conflicts of Laws.
11.11 Sole and Exclusive Venue. Each Party irrevocably agrees that any legal action, suit or proceeding brought by it in any way arising out of this Agreement must be brought solely and exclusively in the courts located in San Mateo or San Francisco counties, State of California, and irrevocably accepts and submits to the sole and exclusive jurisdiction of each of the aforesaid courts in personam, generally and unconditionally with respect to any action, suit or proceeding brought by it or against it by the other Party.
11.12 Negotiated Terms. The Parties agree that the terms and conditions of this Agreement are the result of negotiations between the Parties and that this Agreement shall not be construed in favor of or against either Party by reason of the extent to which such Party or its professional advisors participated in the preparation of this Agreement.
11.13 Publicity. Supplier may identify Company as a customer and use Company’s logo in connection with such identification. Company may use Supplier’s name, logo, and the phrase “Powered by Diamondere” in advertising the availability of the Services. Supplier and Company shall each (a) submit to the other Party all other advertising, written sales promotions, press releases and other publicity matters relating to this Agreement in which the other Party’s name or mark is mentioned or which contains language from which the connection of said name or mark may be inferred or implied and (b) not publish or use such advertising, sales promotions, press releases or publicity matters without the other Party’s consent.
Exhibit 1: Definitions
The following capitalized terms used in this Agreement shall have the respective meanings specified below:
- “Affiliate” shall mean, as to any entity, any other entity that, directly or indirectly, Controls, is Controlled by or is under common Control with such entity.
- “Company Agents” shall mean the employees, contractors, suppliers, subcontractors and representatives of Company, other than Supplier and Supplier Agents.
- “Company Data” shall mean (a) Personal Data; and (b) all data and information (i) submitted to Supplier or Supplier Agents by or on behalf of Company or the Service Recipients, (ii) obtained, developed or produced by in connection with provision, receipt of use of the Solution or (iii) to which Supplier or Supplier Agents have access in connection with the provision of the Solution.
- “Company Product Design” is a Product Design designed by Company and made available via the Solution exclusively to Company.
- “Custom Product” means a Product made by Supplier in accordance with a Customized Product Design.
- “Customized Product Design” means a Product Design, whether a Company Product Design or a Company Product Design, that is customized by Supplier at Company’s request.
- “Direct Damages” shall mean and refer to all actual, direct damages incurred by Company, its Affiliates or the Service Recipients to the extent they result from the failure of Supplier or Supplier Agents to comply with this Agreement.
- “Fees” shall mean the amounts payable by Company to Supplier pursuant to this Agreement.
- “Governmental Authority” shall mean any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
- “IP” shall mean any patents, copyrights, trademarks, trade secrets, and other proprietary or intellectual property rights in and to the following: (a) processes, methodologies, procedures and trade secrets; (b) Software, tools and machine-readable texts and files; and (c) literary works or other works of authorship, including documentation, reports, drawings, charts, graphics and other written documentation.
- “Losses” shall mean any losses, liabilities, damages, fines, penalties, assessments, defaults, deficiencies, interest and expenses (including taxes), and any related claim, judgment, settlement, award, investigation, proceeding and litigation (including fees, expenses and other costs of attorneys, accountants, professional advisors and other experts incurred in connection with the defense or settlement of any of the foregoing).
- “Order” shall mean an order for Product(s) and/or Custom Product(s) generated through Company’s use of the Solution.
- “Personal Data” means any information (a) that, either individually or when combined with other information, can be used to identify a specific individual or derive information specific to a particular individual, and any information or data related to the current, past or potential employees or customers of Company or its Affiliates, and (b) covered by Privacy Laws, including the following: (i) a first name and last name; (ii) a home or other physical address, including street name and name of city or town; (iii) an email address or other name, that reveals an individual’s email address; (iv) a telephone number; (v) a Social Security number; (vi) credit or debit card information; (vii) checking account information, account number and check number; (viii) a driver’s license, military or state identification number; (ix) a persistent identifier, such as a customer number held in a “cookie” or processor serial number, that is combined with other available data that identifies an individual; (x) human resources information, such as benefits plan information, member number, salary information, performance history, health history, and similar information; (xi) financial or transactional information; (xii) employee ID number; (xiii) government passport number or alien registration number, or (xiv) any other information that is identifiable to or identifies an individual, whether or not combined with any of (i) through (xiv) above.
- “Privacy Laws” shall mean U.S. federal, state and local, as well as foreign, Laws and other government-issued rules, regulations, guidelines, directives and requirements currently in effect and as they become effective that relate in any way to the privacy, confidentiality or security of Personal Data and apply to Supplier or the Service Recipients.
- “Product” means jewelry or other product produced by Supplier in response to an Order.
- “Product Design” means a customizable CAD design that is made available to Company as a result of its use of the Solution and includes Supplier Product Designs, Company Product Designs, and Customized Product Designs.
- “Regulatory Requirements” means the Laws which apply specifically to the business and operations of Company and the Service Recipients, including Privacy Laws, as such Laws are applicable to the Services and the obligations of Supplier and Supplier Agents under this Agreement.
- “Related Documentation” shall mean all materials, documentation, specifications, technical manuals, user manuals, flow diagrams, file descriptions and other written information that describes the function and use of the Solution, as applicable.
- “Service Provider” means a third party supplier of products and services, including agents, consultants, outsourcing services and disaster backup and recovery services.
- “Service Recipients” means (a) Company; (b) any Affiliates of Company designated by Company to receive the Services; (c) the Company Agents designated by Company to receive the Services, (d) such other entities (including third parties) providing goods or services to, or purchasing goods or services from, the Company or one or more Service Recipients, that are designated by Company to receive the Services and (e) any other entity designated by Company to receive the Services.
- “Services” means services, activities and responsibilities that are required for proper performance and delivery of the Solution, as provided in Section 5.5.
- “Supplier Product Design” means a Product Design that is owned by Supplier and made available nonexclusively via the Solution to Company.
- “Specifications” means, for a Product or Custom Product, the specifications set forth in the applicable Order, and, for the Solution, contained in the Related Documentation.
- “Software” shall mean the source code and object code versions of any applications programs, operating system software, computer software languages, utilities, other computer programs and Related Documentation, in whatever form or media, including the tangible media upon which such applications programs, operating system software, computer software languages, utilities, other computer programs and Related Documentation are recorded or printed, together with all corrections, improvements, updates and releases thereof.
- “Solution” shall mean cloud-based Software for custom jewelry design and for generating an Order, any systems and machines used by Customer to access such software, and Related Documentation.
- “Supplier Agents” shall mean the Affiliates, employees, contractors, suppliers, subcontractors and representatives of Supplier.
- “Supplier Service Locations” shall mean any location from which Supplier provides the Services, including hosting facilities.
- “Supplier IP” shall mean, excluding the Deliverables, the IP that is (a) owned, acquired or developed by Supplier prior to the Effective Date or independent of this Agreement and, in each case, without reference to any Confidential Information of Company or (b) licensed, leased or otherwise obtained by Supplier from a third party (other than Company or Company Agents).
- “Systems” shall mean the computer systems, software, network hardware, firewalls, and related processes used in connection with the provision, receipt or use of the Solution.