Section 10(A) - Additional Terms for Cakes.com Providers
DecoPac provides a direct-ordering service where local bakeries can provide Customers with the ability to find a cake, locate a bakery, and place an order for a personalized cake through services called “Cakes.com” and "Powered by Cakes.com" (collectively, the “DecoPac Bakery Ordering System”). In these instances, the following terms apply to providers on Cakes.com and Powered by Cakes.com (“Cakes.com Providers”). If any terms of this Section 10(A) conflict with the remainder of the TOU, the terms of this Section 10(A) shall prevail in connection with Cakes.com Providers.
1. DecoPac Services. Subject to these TOU, and provided that the Cakes.com Provider fulfills its obligations under these TOU, DecoPac shall, during the Term of this Agreement, provide the following services:
a) Hosting of DecoPac Bakery Ordering System. DecoPac shall arrange for the DecoPac Bakery Ordering System to be hosted by a thirdparty data center (“Host”).
b) Access to DecoPac Bakery Ordering System. DecoPac shall provide the Cakes.com Providers with remote electronic access to the DecoPac Bakery Ordering System for use by the Cakes.com Provider and its customers.
c) License. DecoPac hereby grants to the Cakes.com Provider for the Term of these TOU, a non-exclusive, limited license, exercisable by the Cakes.com Provider and Customers, to access and use the DecoPac Bakery Ordering System. The rights granted herein include the right for the Cakes.com Provider to: (1) publicly display the Cakes.com Customer-facing platform at the Cakes.com Provider’s business location(s) and (2) upload artwork for its own products so that they may be displayed in the Cakes.com Customer-facing platform for public display at the Cakes.com Provider’s business location(s) and on the Service.
2. Cakes.com Provider Requirements. In addition to acceptance of these TOU, the following requirements must be met to become and remain a Cakes.com Provider:
a) Registration. You MUST be a registered, business entity with a Federal Tax ID, that markets and sells bakery food or deli items, ice cream, or desserts.
b) DecoPac Customer. You must be registered as a DecoPac customer. Registration to become a Cake.com Provider takes place on www.DecoPac.com.
c) Accurate Information. You agree to provide complete and accurate information about your store during the Cakes.com setup process (including, without limitation, hours of operation, ordering lead times, cake sizes and flavors, and all charges applicable to cake orders), and you agree to update the Service if any such information for your store changes from time to time.
d) Completion of Orders. By an accepting an order through the Cakes.com Service, you agree to complete the ordered cake as specified by the Customer utilizing the parameters provided by you during the Cakes.com setup process; provided, that, the Customer has provided complete and accurate information on its cake order and has otherwise complied with your terms of orders notified to Customer at the time of ordering.
e) On Time. You will complete cakes on time and cakes will be ready for pickup by the Customer as specified in the cake ordering process; provided, that, the Customer has provided complete and accurate information on its cake order and has otherwise complied with your terms of orders notified to Customer at time of ordering.
f) DecoPac Licensed Products. You will utilize all DecoPac licensed products in accordance with the “Cake Decorating Instructions” or other materials accompanying a licensed cake decoration (DecoSet®, etc.), if applicable, or found on www.DecoPac.com and ensure any modification to any design resulting from Customers’ use of the Service will not affect the integrity of the design as originally depicted.
g) Taxes. Cakes.com Providers are responsible for reporting, payment, collection and remittance of any sales/use or any other type of tax with respect to transactions conducted through the Service. YOU AGREE THAT YOU ARE RESPONSIBLE FOR, AND WILL INDEMNIFY THE DECOPAC PARTIES AGAINST, ANY LIABILITY FOR ANY SUCH TAXES THAT ARE OR MAY BE ASSESSED BY ANY JURISDICTION WITH RESPECT TO THE PAYMENTS MADE BY CUSTOMERS FOR CAKES OR OTHER ITEMS. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD THE DECOPAC PARTIES HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES, DAMAGES AND COSTS THAT MAY RESULT FROM INADEQUATE REPORTING, PAYMENT, COLLECTION OR REMITTANCE BY YOU OF ANY TAXES RELATING TO TRANSACTIONS CONDUCTED ON THE SERVICE, EXCEPT TAXES IMPOSED ON OR MEASURED BY OUR INCOME OR NET WORTH.
h) Data. Except in connection with providing cakes or other items ordered through Cakes.com, Cakes.com Providers agree not to harvest, use, or otherwise collect information about Customers, including email addresses, without the consent of DecoPac and the Customer. All data collected through the Service, Cakes.com and Powered by Cakes.com orders is the property of DecoPac and can be utilized by DecoPac for any business purpose.
i) Display of Other Products and Artwork in the DecoPac Bakery Ordering System.
Cakes.com Providers may upload and display artwork of its own product offerings on the DecoPac Bakery Ordering System; provided, that, the Cakes.com Providers acknowledge that any such uploads will not have the same configuration functionality as DecoPac artwork. You represent and warrant that You will use a secure access account when uploading any artwork and products onto the DecoPac Bakery Ordering System. To upload artwork, Cakes.com Providers must complete the Custom Cake template in the DecoPac Bakery Ordering System in order to provide required product information to accompany the artwork and to identify the criteria by which they would like their products organized in the DecoPac Bakery Ordering System. Information required on the Custom Cake template includes but may not be limited to: Gender, Age Group, Category, Cake Design, Cake Sizes, Trademarks, and Small Objects Hazard Warning. No Unlicensed Products may be designated as Licensed Products, and no products may be designated for children unless they meet all of the requirements of the Consumer Product Safety Commission. You acknowledge and agree that You shall have no right to edit, alter, modify, copy, excerpt, or rearrange any existing artwork of any third party (including but not limited to images, text, and graphics) contained in the DecoPac Bakery Ordering System without DecoPac’s prior written approval, nor remove or otherwise obscure any indicia of source and copyright and/or trademark legends on artwork contained in the DecoPac Bakery Ordering System.
j) Customization of a Powered by Cakes.com Webpage
A Cakes.com Provider may customize the appearance of its Powered by Cakes.com webpage utilizing the provided layout templates, header editing functionality and other customizations options provided by the Service, additional fees may apply.
k) Acquisition and Support of Hardware and Third Party Software. You shall be solely responsible for the acquisition, installation and maintenance of all hardware, third party software and telecommunications lines and related services necessary to access and use the Service.
3. Security. You agree to implement reasonable security practices and procedures. In the event You become aware of a security incident, breach, or an attempted breach of the security, confidentiality or misuse, misappropriation or unauthorized disclosure of data, You shall promptly notify DecoPac and shall cooperate in the investigation and mediation of the security incident, including implementation of appropriate, applicable controls to maintain and preserve electronic evidence relating to such security incident. In the event any security incident requires notification to an individual, regulator, or government under any applicable law, DecoPac and Cakes.com Provider will work together regarding the timing, content, and method of notification and Cakes.com Provider shall cooperate with DecoPac at Cakes.com Provider’s own expense in complying with any notice requirement.
4. Protection of Personal Information. Each party represents and warrants to the other that at all times during and after the Term it will, and will cause any of its subcontractors to (i) use, handle, collect, maintain, safeguard, and destroy personal information it may acquire in connection with these TOU in accordance with applicable laws and industry best practices for the particular activities contemplated by these TOU.
5. Account Holds. DecoPac may place holds on accounts based on certain factors, including, but not limited to, non-payment history, bakery performance, violation of these TOU or other rules communicated in writing to a Cakes.com Provider, or consistent reported issues from Customers.
6. Term. Unless terminated early as provided herein, these TOU shall remain valid and in force so long as the Cakes.com Provider is utilizing the DecoPac Bakery Ordering System, or a party has given thirty (30) days’ written notice of its desire to terminate these TOU, whichever is sooner (the “Term”); provided, that, if the Cakes.com Provider wishes to access or use DecoPac Bakery Ordering System after such termination, the DecoPac.com Customer must reaccept the TOU and related policies.
7. Termination for Breach. Either DecoPac or the Cakes.com Provider may terminate these TOU immediately at any time if the other party commits a breach of any material covenant or obligation under these TOU and should fail to remedy such breach within ten (10) business days from the receipt of written notice from the non-breaching party. Upon termination, the breaching party shall remain responsible for all obligations contained in these TOU that survive termination.
8. Termination for Bankruptcy. Either DecoPac or the Cakes.com Provider may terminate these TOU immediately without prejudice to any other remedy that such party may be entitled at law or in equity or elsewhere under these TOU by giving written notice of termination to the other party if the other party: (a) liquidates and ceases to carry on its business, (b) becomes “insolvent” (as such term is defined in the United States Bankruptcy Code, as amended from time to time), or (c) voluntarily seeks, consents to or acquiesces in the benefits of any bankruptcy or similar debtor relief laws.
9. Effect of Termination. Upon termination of these TOU, the licenses granted above shall automatically terminate and all rights granted to the Cakes.com Provider shall automatically revert back to DecoPac. DecoPac and the Cakes.com Provider shall immediately cease all use of the other party’s artwork and other intellectual property, including any portion thereof.
10. Confidential Information. You acknowledge that in performing Your obligations pursuant to these TOU, You may have access to or become aware of, information considered by DecoPac to be proprietary, confidential or a trade secret of DecoPac (collectively, “Confidential Information”). Confidential Information shall include, without limitation, data, nonpublic sales and financial data, non-public business operations, marketing materials, marketing plans and strategies, research and development plans, computer programming materials and such other information that is marked confidential or would reasonably be considered of a proprietary or confidential nature based on the nature and circumstances surrounding its disclosure. Without the prior written consent of DecoPac, such Confidential Information shall not be used by You for any purpose whatsoever except as may be necessary in connection with the use of the DecoPac Bakery Order System as permitted hereunder. Confidential Information may be (i) disclosed in oral, written, graphic, machine recognizable, and/or sample form, or (ii) obtained by examination, testing or analysis of any products.
11. Standard of Care; Restrictions on Use. You shall exercise reasonable care, but in no event less than the standard of care used by You or as required by applicable law to protect Your own Confidential Information of similar sensitivity, to prevent the disclosure of the Confidential Information to any third party except as provided herein. You agree: (i) to hold DecoPac’s Confidential Information in strict confidence; (ii) not to divulge any such Confidential Information to any third party; (iii) to disclose Confidential Information only to those of Your officers and employees, (collectively “Representatives”) who have a “need to know” such Confidential Information for the purpose of performing these TOU and who have been directed to comply with the confidentiality restrictions herein; (iv) to use the Confidential Information only for the purpose of performing Your obligations under these TOU and not for any other purpose; and (v) to cause Your Representatives to comply with these provisions and to be responsible for any failure of any Representative to so comply.
12. Access to Information. DecoPac may permit its authorized employees to access information of the Cakes.com Provider if necessary to correct an error, or to facilitate, cancel or modify an order at the request of the Cakes.com Provider or Customer or to investigate or test for security issues.
13. Exclusions. The foregoing restrictions between DecoPac and the Cakes.com Provider shall not apply, however, to any portion of the Confidential Information that the Cakes.com Provider can demonstrate to DecoPac (i) is now available or becomes available to the public through no fault of the Cakes.com Provider; (ii) is explicitly approved for release by written authorization of DecoPac; (iii) is lawfully obtained from a third party or parties without a duty of confidentiality; (iv) is known to the Cakes.com Provider or any of its affiliated companies prior to such disclosure as evidenced by the Cakes.com Provider’s prior written record; or (v) is independently developed by the Cakes.com Provider or any of its affiliated companies without the use of or reliance on any DecoPac’s Confidential Information or any breach of these TOU.
14. Disclosure Required by Law. If the Cakes.com Provider is required to disclose Confidential Information of DecoPac pursuant to applicable law, statute, or regulation, or court order, the Cakes.com Provider will give DecoPac prompt written notice of the request and a reasonable opportunity to object to such disclosure and seek a protective order or appropriate remedy. If, in the absence of a protective order, the Cakes.com Provider determines, upon the advice of counsel, that it is required to disclose such information, it may disclose only Confidential Information specifically required and only to the extent compelled to do so.
15. Ownership of Confidential Information. All Confidential Information remains the property of DecoPac, respectively and will not be copied or reproduced without the express written permission of DecoPac or except as permitted in these TOU. Upon termination of these TOU and within ten (10) business days of receipt of DecoPac’s written request, the Cakes.com Provider will return all Confidential Information to DecoPac along with all copies and portions thereof (and cause any permitted subcontractor to destroy) or certify in writing that all such Confidential Information has been destroyed in accordance with applicable law and prevailing industry best practices. No license, express or implied, in the Confidential Information is granted other than to use the Confidential Information in the manner and to the extent authorized by these TOU. ]
16. Reverse Engineering. The Cakes.com Provider shall have no right to duplicate, translate, modify, copy, printout, disassemble, decompile or otherwise tamper with any components of the DecoPac Bakery Ordering System or any firmware or software provided in connection therewith, nor shall the Cakes.com Provider permit any third party to do the same.
17. Equitable Remedies. It is understood and agreed that monetary damages would not adequately compensate DecoPac for the breach of Sections 10(A)(10, 11, 15, or 16) of this Agreement. Accordingly, in addition to any other remedy to which DecoPac may be entitled, at law or in equity, DecoPac shall be entitled to request injunctive relief to prevent the breach or threatened breach of those Sections of these TOU and specifically to enforce the terms and provisions hereof. Further, the Cakes.com Provider hereby waives any claim or defense that there is an adequate remedy at law for such breach or threatened breach.
18. Ownership of Intellectual Property Rights. All right, title and interest in and to the DecoPac Bakery Ordering System, including all software, code, images, characters, properties, copyrights, trademarks and trade dress, and the goodwill associated therewith shall be and remain the sole and complete property of DecoPac and/or its licensors. Except for the license granted to DecoPac in these TOU, all right, title and interest in and to artwork provided by the Cakes.com Provider, including all images, characters, properties, copyrights, trademarks and trade dress, and the goodwill associated therewith, shall be and remain the sole and complete property of the Cakes.com Provider, or its respective licensor, whichever the case may be.
1. To Cakes.com Provider. Except as otherwise set forth herein, notices made by DecoPac to the Cakes.com Provider under these TOU that affect DecoPac’s customers generally (e.g., services related news, service updates, maintenance, etc.) will be posted on the Cakes.com Providers site and/or communicated by email to Cakes.com Providers. Notices made by DecoPac under these TOU for Cakes.com Provider specifically (e.g., notices of breach and/or suspension) will be provided via the email address provided to DecoPac in Cakes.com Provider’s registration for the Service or in any updated email address provided to DecoPac in accordance with standard account information update procedures provided through the Service. It is Cakes.com Provider’s responsibility to keep its email address current and Cakes.com Provider will be deemed to have received any email sent to any such email address, upon DecoPac’s sending of the email, whether or not Cakes.com Provider actually receives the email.
2. To DecoPac. For notices made by Cakes.com Provider to DecoPac under these TOU and for questions regarding these TOU or the Service, Cakes.com Provider may contact DecoPac as follows:
Attn: Legal Department
3500 Thurston Avenue
Anoka, MN, 55303
Such notices are deemed made on receipt by DecoPac.
20. Other Agreements. In the event of conflict, these TOU shall supersede any other agreements Cakes.com Provider has with DecoPac in terms of Cakes.com Provider’s use of the DecoPac Bakery Ordering System.
21. Insurance. The Cakes.com Provider agrees to maintain during the Term of these TOU and for three (3) years thereafter, commercial general commercial liability insurance including products and completed operations which insurance shall be in the amount and of a type customarily maintained by companies similarly situated, providing at least $3,000,000 in coverage per occurrence (with a deductible not to exceed $30,000).