Cakes.com Bakery Terms & Conditions
The following describes the terms on which Cakes.com offers you access to our services.
Welcome to Cakes.com. By using Cakes.com (including www.Cakes.com and its related subdomains, services, other sites and tools linked to www.Cakes.com (collectively, the “Site”), you agree to the terms and conditions set forth in these Cakes.com Bakery Terms & Conditions (this “Agreement”) with Cakes.com and the general principles for the Site. As used in this Agreement and unless otherwise described, “Cakes.com,” “we” or “our” refers to DecoPac, Inc., the corporate owner of Cakes.com. As used in this Agreement, “you” means either (a) the company or other business or governmental entity specified as the applicant to be a Cakes.com Bakery, or (b) if there is no such entity or this Agreement proves unenforceable against such entity, the individual now agreeing to this Agreement.
This Agreement is effective as of your acceptance date of this Agreement.
In addition to acceptance of this Agreement, the following requirements must be met in order to become a Cakes.com Bakery:
i. You MUST be a registered, commercial bakery or ice cream store with a Federal Tax ID.
ii. You must be registered as a DecoPac customer. DecoPac is the leading supplier of cake and cupcake decorations to bakeries throughout the US and Canada. Registration to become a Cakes.com network bakery takes place on www.DecoPac.com. You agree to all terms and conditions of being a DecoPac customer as outlined on the customer terms and conditions listed on www.DecoPac.com.
Cakes.com facilitates the ordering of cakes and other bakery products between a consumer User and a Cakes.com Bakery. Through our network of thousands of Cakes.com Bakeries across the United States (the “Cakes.com Bakery Network”), we provide the ability for Users to find a cake, locate a bakery, and place an order for a chosen cake.
User and Bakery Network Agreement
The following are the responsibilities of the consumer User in using the Site:
• User will provide all information required for the bakery to complete the chosen cake on time and accurately.
• By submitting an order through Cakes.com, the User agrees to pick up the cake on time as specified by the User using the chosen bakery’s hours of operation and cake pick-up times as detailed by the bakery in the bakery setup process.
• By submitting an order through Cakes.com, the User agrees to pay for the cake at the price indicated at the completion of the cake order. The price reflects all charges indicated by the bakery pertaining to the ordered cake as specified in the bakery setup process. The payment for the cake by the User will take place at the bakery where the cake was selected….NO MONETARY TRANSACTION WILL TAKE PLACE BETWEEN USER AND CAKES.COM. ALL CAKE RELATED TRANSACTIONS BETWEEN USER AND BAKERY WILL TAKE PLACE AT THE SELECTED BAKERY.
• Failure to comply with the above requirements may result in suspension or termination of a User’s account and ability to access the Cakes.com service.
The following are your responsibilities as a Cakes.com Bakery:
• You agree to provide complete and accurate information about your bakery during the bakery setup process (including, without limitation, hours of operation, ordering lead times, and all charges applicable to cake orders), and you agree to update Cakes.com if any such information for your bakery changes from time to time.
• By an accepting an order through the Cakes.com Online Cake Order System, you agree to complete the ordered cake as specified by the User utilizing the parameters provided by you during the bakery setup process, provided that the User has provided complete and accurate information on its cake order and has otherwise complied with your terms of orders notified to User at time of ordering.
• You will complete cakes on time and cakes will be ready for pickup by the User as specified in the cake ordering process; provided that the User has provided complete and accurate information on its cake order and has otherwise complied with your terms of orders notified to User at time of ordering.
• You will create all licensed cakes as specified in the “Cake Decorating Instructions” accompanying a licensed cake decoration (DecoSet ®) or found on www.DecoPac.com.
Failure to comply with above requirements may result in suspension or termination of your membership in the Cakes.com Bakery Network and/or possible suspension, holds, or termination of your DecoPac customer status.
While using Cakes.com sites, services and tools, you agree NOT to do any of the following:
• post content or items in an inappropriate category or areas on our Site;
• violate any laws, third party rights or our policies,
• use our Site if you are not able to form legally binding contracts, are under the age of 18, or are temporarily or indefinitely suspended from using our Site;
• post false, inaccurate, misleading, defamatory, or libelous content (including personal information);
• transfer your Cakes.com account and User ID to another party without our consent;
• distribute or post spam, unsolicited, or bulk electronic communications, chain letters, or pyramid schemes;
• distribute viruses or any other technologies that may harm Cakes.com, or the interests or property of Cakes.com users;
• export or re-export any Cakes.com tools except in compliance with the export control laws of any relevant jurisdictions;
• copy, modify, distribute or frame any content on the Site, or otherwise use any of the content contained on the Site including, any trademarks, except as may permitted herein; or
• harvest or otherwise collect information about users, including email addresses, without the consent of Cakes.com and the User.
• Post, without the written consent of the content creator, copy written content
Action(s) Resulting from Violation of Aforementioned Rules
Cakes.com, the Cakes.com Bakery Network, and the Cakes.com user community work together to keep our Site working properly and the community safe. Please report problems, offensive content, and policy violations to us at www.Cakes.com via the “Contact Us” link.
Without limiting other remedies, we may limit, suspend or terminate your account and membership in the Cakes.com Bakery Network, prohibit access to our Site, delay or remove hosted content, and take technical and legal steps to keep you or other users off our Site if we think that such users are creating problems or possible legal liabilities, infringing the intellectual property rights of third parties, or acting inconsistently with the letter or spirit of our policies. Additionally, we may, in appropriate circumstances and at our discretion, suspend or terminate accounts of users who may be repeat violators of policy. We also reserve the right to cancel unconfirmed accounts or accounts that have been inactive for a long time, or to modify or discontinue the Site.
Dispute Resolution Between Bakery and User
Our Cakes.com Bakery Network and Cakes.com Users share the responsibility for making sure purchases facilitated by Cakes.com are completed as specified, provided on-time and meet all quality expectations. We strongly encourage Users and Cakes.com Bakeries to work together to resolve issues before contacting Cakes.com with a problem. Cakes.com is not liable for disputes arising from issues that occur between a Cakes.com Bakery and a User. Such disputes or issues for which we bear no responsibility or liability include (but are not limited to):
• Quality of cake (example: cake decorating skill level, cake taste, icing quality, message spelling, etc.)
• On-time pickup of cake by User
• On-time readiness of cake by Cakes.com Bakery
• Payment from User to Cakes.com Bakery
• Ability of Cakes.com or User to enter into binding contracts.
Cakes.com encourages both Cakes.com Bakeries and Users to contact Cakes.com for notification purposes only with regard to these issues in order to make the Cakes.com service as hassle-free as possible.
Notification of Cakes.com website issues (those issues related to the function of placing an order, retrieving an order, or setting up bakery parameters) on Cakes.com should be communicated directly to www.Cakes.com through the Contact Us link.
Disclaimer of Warranties
YOU AGREE THAT USE OF THE SITE AND THE SERVICES ON THE SITE ARE ENTIRELY AT YOUR OWN RISK. THE SITE AND SERVICES, INCLUDING ALL CAKES, CONTENT, FUNCTIONS, AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SITE, ARE PROVIDED ON AN "AS IS" "AS AVAILABLE" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SITE OR ITS FUNCTIONS WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED.
WE MAKE NO ENDORSEMENT OR WARRANTY REGARDING ANY CAKES.COM BAKERY NOR ANY ITEM DISPLAYED BY SUCH BAKERY ON THE SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. WE EXPRESSLY DISCLAIM ANY RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR BREACHES COMMITTED BY ANY USER OF THE SITE INCLUDING OTHER MEMBERS OF THE CAKES.COM BAKERY NETWORK.
You acknowledge and agree that we do not take title to or possession of any item whose sale is facilitated on the Site, and we are not a principal in the transactions on the Site, nor are we your agent or the agent of any User. Because we are not and cannot be involved in dealings between users of the Site, in the event that you have a dispute with another user (whether a User or another Cakes.com Bakery), you hereby release Cakes.com, its affiliates and their respective directors, officers, employees and agents from and against any and all claims, demands and damages (actual and consequential, and including attorneys’ fees) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
To protect against the risk of liability, Cakes.com may at times request that DecoPac place holds on customer accounts based on certain factors, including, but not limited to, non-payment history, bakery performance, violation of this Agreement or other Cakes.com rules communicated in writing to a Cakes.com Bakery, or consistent reported issues from Users.
When you post content onto Cakes.com, you agree to comply with the Cakes.com rules regarding acceptable content. Cakes.com Bakery Network members are liable for any and all content loaded onto Cakes.com regarding their specific bakery business and cake parameters. Cakes.com is not liable for content provided about a bakery that is false or derogatory that is uploaded by a User or a Cakes.com Bakery on Cakes.com.
Limitation of Liability
You agree that Cakes.com is not responsible for User content or the content of other members of the Cakes.com Bakery Network, nor for the actions or inactions of such persons. Cakes.com is not involved in the actual transaction between Cakes.com Bakery Network members and Users. We have no control over and do not guarantee the quality, safety or legality of items advertised, the truth or accuracy of Users’ content, the ability of Cakes.com Bakeries to sell items, the ability of Users to pay for items, or that a User or Cakes.com Bakery will actually complete a transaction. You expressly agree that we are not liable for any loss of money, goodwill or reputation, or any special, indirect or consequential damages, whether arising out of this Agreement, out of your use of or your inability to use our Site, out of tort, or in any other manner.
Access and Interference
Much of the information on Cakes.com is updated on a real-time basis and is proprietary to Cakes.com. You agree that you will not use any robot, spider, scraper or other automated means to access the Site for any purpose without our express hand written permission.
Additionally, you agree that you will not:
• take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
• copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (except for your own information) from the Site without the prior express written permission of Cakes.com and the appropriate third party, as applicable;
• interfere or attempt to interfere with the proper working of the Site, or any activities conducted on or with the Site.
You agree to indemnify and hold us (and our corporate owner, DecoPac, its affiliates and their respective officers, directors, agents, and employees) harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of (a) your participation in the Cakes.com Bakery Network and/or use of the Site, (b) your breach of this Agreement, (c) your violations of any applicable law or (d) your infringement of the intellectual property rights of a third party.
You agree that Cakes.com bears no responsibility for the reporting, payment, collection and remittance of any sales/use or any other type of tax with respect to transactions conducted on the Site. You agree that you are responsible for, and will indemnify us against, any liability for any such taxes that are or may be assessed by any jurisdiction with respect to the payments made by Users for cakes. You agree to defend, indemnify and hold us 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 Site, except taxes imposed on or measured by our income or net worth.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
Except as explicitly stated otherwise, legal notices shall be served to the email address you provide to Cakes.com during the registration process. Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to the address provided during the registration process. In such case, notice shall be deemed given three days after the date of mailing.
If a dispute arises between you and Cakes.com, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Cakes.com agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (a "Claim") in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
• Law and Forum for Legal Disputes - This Agreement shall be governed in all respects, including but not limited to its formation and interpretation, by the laws of the State of Minnesota as they apply to agreements entered into and to be performed entirely within Minnesota between Minnesota residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against Cakes.com must be resolved exclusively by a state or federal court located in Minnesota. You agree to submit to the personal jurisdiction of the courts located within Minnesota for the purpose of litigating all such claims or disputes. You further agree to indemnify Cakes.com for all reasonable attorneys’ fees of Cakes.com in responding to and defending any legal action brought by you in contravention of this forum clause.
Cakes.com is wholly owned by DecoPac, Inc. and is located at 3500 Thurston Avenue, Anoka, Minnesota, 55303. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Headings are for reference purposes only and do not limit the scope or extent of such section. Our failure to act with respect to a breach by you or others doesn't waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this Agreement.
This Agreement may not be assigned by you to any other person without our prior written consent, and any such assignment without our consent shall be considered void. We may assign this Agreement in our discretion with notice to you.
We may amend this Agreement at any time by posting the amended terms on this site. Unless otherwise notified to you, all amended terms shall automatically be effective 30 days after they are initially posted and your use of the Site after such amendment constitutes your acceptance of such amendments to this Agreement. This Agreement may not be amended by you except in a writing hand signed by you and us. For purposes of this provision, a "writing" does not include an email message and a signature doesn't include an electronic signature. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof.
KIOSK USER AGREEMENT
The use of the DecoPac Bakery Ordering System is subject to the terms and conditions of this Kiosk User Agreement (the “Agreement”). By checking the box on the opening screen of this application, you agree to all of the terms and conditions of this Agreement regardless of whether you have read through all of the applicable terms. THEREFORE, WE RECOMMEND THAT YOU TAKE THE TIME TO READ THROUGH THIS AGREEMENT, AS IT HAS TERMS SUCH AS LIMITATIONS OF LIABILITY, CHOICE OF LAW FOR DISPUTES AND OTHER PROVISIONS THAT MAY LIMIT YOUR RIGHTS. This Agreement is made and entered into by and between DecoPac, Inc., a Minnesota corporation having a place of business at 3500 Thurston Avenue, Anoka, Minnesota 55303 (“DecoPac”) and the company or other legal entity specified in the DecoPac Bakery Ordering System setup form, or if there is no such entity or this Agreement proves to be unenforceable against such entity, the individual now agreeing to this Agreement (“You,” or “Retailer”). The Effective Date of this Agreement shall be the date that You accepted the terms and conditions of this Agreement by checking the relevant box on the opening screen of the DecoPac Bakery Ordering System. (DecoPac and Retailer may sometimes be collectively referred to as the “Parties” or individually, as a “Party.”) DecoPac manufactures and markets innovative cake decorating products and technologies that bear or are marketed in connection with valuable copyrights, trademarks and trade dress, both registered and unregistered, for which DecoPac or its licensors have developed substantial goodwill (the “Products”). DecoPac has created certain artwork used in connection with the marketing and sale of its Products, which contains various images, characters and properties for which DecoPac or licensors are the owners of copyright, trademark and/or trade dress (the “Artwork”). DecoPac has previously created catalogs utilizing its Artwork to be displayed at its retail customers’ locations to facilitate sales of bakery products and to allow consumers to order bakery products containing DecoPac’s Products. DecoPac has now developed a proprietary self-service cake ordering system (the “DecoPac Bakery Ordering System”) to display DecoPac’s catalog in electronic form so that consumers may order DecoPac’s Products directly from an electronic tablet or similar device (the “Kiosk”) located at the retail customer’s business location. DecoPac and Retailer would like to enter into this Agreement setting forth the terms and conditions by which Retailer may access and use the DecoPac Bakery Ordering System via a Kiosk, and to have the option to include its own Products and Artwork and/or the Products and Artwork of other third party vendors (collectively, the “Other Vendors,” individually, a “Vendor”), in the DecoPac Bakery Ordering System. Accordingly, for and in consideration of the above premises and the mutual covenants contained herein, the Parties, intending to be legally bound and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby agree as set forth below in this Agreement.
1. Obligations of DecoPac.
Subject to the terms and conditions set forth herein, and provided that Retailer fulfills its obligations hereunder, 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 third party data center (“Host”) that has been subjected to a security/integrity/confidentiality/privacy review, and including review of an SSAE-16 (the “Security Report”). The Security Report shall be made available to Retailer for its evaluation upon request. DecoPac shall be responsible for ensuring that the development and hosting contracts with the Host and any third-party developers of the DecoPac Bakery Order System (collectively “the Subcontractors”) contains covenants, representation, and warranties (consistent with such Subcontractors’ maintenance of the security status described in the Security Report), including but not limited to the confidentiality provisions and the Security Requirements described in this Agreement, with customary and reasonable remedies for any breach of those covenants, representations, or warranties, and with the ability to pass through to Retailer and Other Vendors those covenants, representations, and warranties, as well as the right of Retailer and each Other Vendor as an intended third party beneficiary to avail itself of those remedies. B. Access to DecoPac Bakery Ordering System. DecoPac shall provide Retailer with remote electronic access to the DecoPac Bakery Ordering System via one or more Kiosks (supplied by Retailer) for use by Retailer and its customers within Retailer’s physical business location(s) located within the United States (“Retailer’s Business Location”).
2. Grant of Rights
DecoPac hereby grants to Retailer for the Term of this Agreement, a non-exclusive, royalty-free, limited license, exercisable by Retailer and its customers, to access and use the DecoPac Bakery Ordering System at Retailer’s Business Location via one or more Kiosks supplied by Retailer. The rights granted herein include the right for Retailer to: (1) publicly display DecoPac’s electronic Artwork as contained in the DecoPac Bakery Ordering System at Retailer’s Business Location; (2) upload Artwork for its own Products so that they may be displayed in the DecoPac Bakery Ordering System for public display at Retailer’s Business Location; and (3) allow the Artwork of Other Vendors who have executed a Vendor Kiosk Agreement to be uploaded so that they may be displayed in the DecoPac Bakery Ordering System for public display at Retailer’s Business Location.
3. Obligations of Retailer.
3.1 Supply and Security of Kiosks.
Retailer shall be responsible for supplying, maintaining and securing the Kiosks to be used by Retailer for accessing the DecoPac Bakery Ordering System at Retailer’s Business Location including, securing the Data and Personal Information during transmission to the DecoPac Bakery Ordering System and/or when such Data and Personal Information is stored on the Kiosks. Retailer shall ensure that its security practices are consistent with the Federal Trade Commission’s best practices guides and that if Retailer elects to capture credit card information of its customers, Retailer shall ensure that it meets all Payment Card Industry Data Security Standards.
3.2 Compliance with User Manual.
Vendor shall exercise a reasonable degree of care in using the DecoPac Bakery Ordering System and the related web portal in material compliance with applicable user manuals and reasonable written instructions and in accordance with applicable laws and the terms of this Vendor Agreement. Each Party shall promptly report to the other Party any breach of this Vendor Agreement or suspected operational failures of the DecoPac Bakery Ordering System or damages discernible to it, and cooperate in good faith with the other Party to ensure said security or to investigate any damage or operational failures.
4. Display of Other Products and Artwork in the DecoPac Bakery Ordering System.
In the event that Retailer would like to exercise its right to include Artwork for its own Products and/or the Artwork of any Other Vendor for such Other Vendors’ Products in the DecoPac Bakery Ordering System, Retailer shall notify DecoPac. Upon receipt of Retailer’s notice, DecoPac will provide Retailer with an access code and instructions so that Retailer may upload its own Artwork, and the Artwork of any Other Vendor who has executed a Vendor Kiosk Agreement, into the DecoPac Bakery Ordering System. Retailer represents and warrants that it will use a secure access account when uploading any Artwork and Products onto the DecoPac Bakery Ordering System. To upload Artwork, Retailer must complete the New 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 it would like its Products organized in the DecoPac Bakery Ordering System. Information required on the New Custom Cake template includes: 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. Retailer acknowledges and agrees that it 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. In the event Retailer desires Other Vendor to load Other Vendor’s own Artwork into the DecoPac Bakery Ordering System, upon execution of the Vendor Kiosk Agreement and upon request of Retailer, DecoPac will provide Other Vendor with a limited access code and instructions.
5. Damage to Goodwill.
Retailer shall not upload or allow any third party to upload any Artwork or Product onto the DecoPac Bakery Ordering System which (i) violates the rights of any third party; or (ii) is illegal, illicit, immoral, offensive, or which has a tendency to disparage, harm or bring DecoPac or any of its licensors into disrepute. DecoPac reserves the right to inspect Retailer’s use of the DecoPac Bakery Ordering System and to remove any Artwork or Product from the DecoPac Bakery Ordering System if in DecoPac’s reasonable, good faith judgment it violates this Section 5. DecoPac shall provide notice of such action within 24 hours to Retailer and any other affected Other Vendor.
6. Data from End-User Orders.
6.1 Restrictions on Access to Data.
Subject to DecoPac’s, Retailer’s and any Other Vendors’ rights in its own data generated from the sale of its Products, the Parties acknowledge and agree that the data associated with orders placed by end users of the Kiosks such as, the quantity and type of Products purchased and pricing of the products (the “Data”) is the sole property of Retailer and that access to such Data could provide a competitive advantage to DecoPac and/or to each Other Vendor; therefore, DecoPac, Retailer and each Other Vendor has an interest in preventing unauthorized third parties (including DecoPac and Other Vendors as appropriate) from acquiring or having access to the Data. Data relating to customers placing orders through the DecoPac Bakery Order System shall be limited to first and last name, email address (to the extent a customer elects to provide an email address), phone number, and a description of the product ordered (“Personal Information”). DecoPac has taken and shall continue to take measures generally accepted as sufficient in the industry to ensure that the Data and Personal Information is accessible only to Retailer, the Host of the DecoPac Bakery Ordering System, and, respectively, DecoPac (as to the Data concerning sales of its Products), Retailer (as to the Data concerning sales of its Products), or each Other Vendor (as to the Data concerning sales of each Other Vendor’s Products). The Retailer, for its part, shall hold all Data in confidence and shall not share the Data of one Party or Other Vendor with any other Party or Other Vendor and take all reasonable measures to secure all Kiosks placed at Retailer’s Business Location against “hackers” and others who may seek, without authorization, to disrupt, damage, modify, access, or otherwise use the DecoPac Bakery Ordering System, or gain access to the Data or Personal Information.
6.2 Data Breaches.
In the event a Party becomes aware of a breach or an attempted breach of the security, confidentiality or misuse, misappropriation or unauthorized disclosure of the Data or Personal Information, that Party shall promptly notify the other Party and shall cooperate in the investigation and mediation of the breach or attempted breach, including implementation of appropriate, applicable controls to maintain and preserve electronic evidence relating to such breach or attempted breach. In the event any breach of security or confidentiality with respect to Personal Information by DecoPac or its Subcontractors or their respective employees requires notification to an individual under any applicable law, DecoPac and Retailer will work together regarding the timing, content, and method of notification and Retailer shall cooperate with DecoPac at Retailer’s own expense in complying with any notice requirement.
6.3 Representations Regarding Security of Data.
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 permitted Subcontractors to, (i) use, handle, collect, maintain, safeguard, and destroy Personal Information and Data as described in Section 6.1 it may acquire in connection with this Agreement and in accordance with all terms hereunder; and, in particular, (ii) maintain and enforce administrative, technical, and physical security procedures designed to ensure the confidentiality, integrity, and availability of all Confidential Information that are in accordance with applicable laws and industry best practices for the particular activities (and any Personal Information and Data) contemplated by the Agreement, if any. DecoPac also agrees to implement industry-standard procedures for expiration, complexity and lock-out policies relating to password access to the DecoPac Bakery Ordering System.
7. Term and Termination.
Unless terminated early as provided herein, this Agreement shall remain valid and in force so long as Retailer is utilizing the DecoPac Bakery Ordering System at Retailer’s Business Location, or a Party has given ninety (90) days written notice of its desire to terminate this Agreement, whichever is sooner (the “Term”).
7.2 Termination for Breach.
Either Party may terminate this Agreement immediately at any time if the other Party commits a breach of any material covenant or obligation under this Agreement 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 this Agreement that survive termination.
7.3 Termination for Bankruptcy.
Either Party may terminate this Agreement immediately without prejudice to any other remedy that such Party may be entitled at law or in equity or elsewhere under this Agreement 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.
7.4 Effect of Termination.
Upon termination or expiration of this Agreement, the license granted in Section 2 above and pursuant to any Vendor Kiosk Agreement shall automatically terminate and all rights granted to Retailer shall automatically revert back to DecoPac and/or the Other Vendors. DecoPac and Retailer shall immediately cease all use of the other Party’s and any Other Vendors’ Artwork, including any portion thereof, and DecoPac shall cause all such Artwork to be permanently removed from the DecoPac Bakery Ordering System, and all Retailer’s and Other Vendors’ Confidential Information contained within the DecoPac Bakery Ordering System, including Personal Information, shall be returned or destroyed pursuant to Section 8.6. The provisions of Sections 5 and 7 shall survive any expiration or termination of this Agreement.
8. Confidential Information.
The Parties acknowledge that in performing their respective obligations pursuant to this Agreement, they may have access to or become aware of, information considered by the other Party to be proprietary, confidential or a trade secret of such Party (collectively, “Confidential Information”). Confidential Information shall include, without limitation, Data, customer lists, 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 the disclosing Party, such Confidential Information shall not be used by the receiving Party 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 and Data 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.
8.2 Standard of Care; Restrictions on Use.
Each Party shall exercise reasonable care, but in no event less than the standard of care used by such Party or as required by applicable law to protect its own Confidential Information of similar sensitivity, to prevent the disclosure of the Confidential Information to any third party except as provided herein. The Parties agree: (i) to hold the disclosing Party’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 its officers and employees, (collectively “Representatives”) who have a “need to know” such Confidential Information for the purpose of performing this Agreement and who have agreed in writing to the confidentiality restrictions herein; (iv) to use the Confidential Information only for the purpose of performing its obligations under this Agreement and not for any other purpose; and (v) to cause its Representatives to comply with these provisions and to tbe responsible for any failure of any Representative to so comply.
8.3 Limited Access to Order Information.
Notwithstanding Section 8.2 above and without any information reporting capabilities, DecoPac may permit its authorized employees to access individual order information of Retailer and/or Other Vendors only if necessary to correct an error in such order, or to cancel or modify the order at the request of Retailer or its customer, or to investigate or test for security breaches.
The foregoing restrictions shall not apply, however, to any portion of the Confidential Information that the receiving Party can demonstrate to the disclosing Party (i) is now available or becomes available to the public through no fault of the receiving Party; (ii) is explicitly approved for release by written authorization of the disclosing Party; (iii) is lawfully obtained from a third party or parties without a duty of confidentiality; (iv) is known to the receiving Party or any of its affiliated companies prior to such disclosure; or (v) is independently developed by the receiving Party or any of its affiliated companies without the use of any of disclosing Party’s Confidential Information or any breach of this Agreement.
8.5 Disclosure Required by Law.
If either Party is required to disclose Confidential Information of the other Party pursuant to applicable law, statute, or regulation, or court order, such Party will give to the other Party 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 receiving Party 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.
8.6 Ownership of Confidential Information.
All Confidential Information remains the property of the disclosing Party, respectively and will not be copied or reproduced without the express written permission of the disclosing Party or except as permitted in this Agreement. Upon termination of this Agreement and within ten (10) days of receipt of the disclosing Party’s written request, the receiving Party will return all Confidential Information to the disclosing Party along with all copies and portions thereof, (and cause any permitted Subcontractor, including but not limited to the Host 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 this Agreement.
8.7 Reverse Engineering.
Retailer 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 Retailer permit any third party to do the same.
8.8 Equitable Remedies.
It is understood and agreed that monetary damages would not adequately compensate a Party for the breach by any other Party of Sections 6 or 8 of this Agreement. Accordingly, in addition to any other remedy to which a Party may be entitled, at law or in equity, the Party whose Confidential Information or Data is threatened shall be entitled to request injunctive relief to prevent the breach or threatened breach of Sections 6 or 8 of this Agreement and specifically to enforce the terms and provisions hereof. Further, each Party hereby waives any claim or defense that there is an adequate remedy at law for such breach or threatened breach.
9. 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. Notwithstanding the foregoing, all right, title and interest in and to Artwork and Products provided by Retailer and Other Vendors, 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 Retailer or such Other Vendor, or its respective licensor, whichever the case may be.
10. Representations and Warranties.
10.1 General Representations and Warranties.
Each Party represents and warrants to the other that it is duly organized, validly existing and in good standing under the laws of the state of its incorporation or formation and it has the corporate power to own its assets and properties and to carry on its business as now being and heretofore conducted; the execution, delivery and performance of this Agreement have been authorized, do not violate its certificate of incorporation, by-laws or similar governing instruments or applicable law and do not, and with the passage of time will not, materially conflict with or constitute a breach under any other agreement, judgment or instrument to which it is a party or by which it is bound; that it owns or has acquired all rights necessary to the Artwork provided by it and the Products provided by it to permit their use and display as provided herein; and this Agreement is the legal, valid and binding obligation of such party, enforceable in accordance with its terms.
10.2 Mutual Representations and Warranties.
Each Party represents and warrants that it will comply, at its sole expense and as applicable to its performance of this Agreement, if any, with all local, state, and federal privacy, confidentiality, consumer protection, advertising, electronic mail, data security, data destruction, data retention, data encryption, and other similar laws, rules, and regulations, whether in effect now or in the future as well as the applicable Security Requirements.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED HEREIN, EACH PARTY EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION (i) AS TO THE VALIDITY OR SCOPE OF ANY OF THE INTELLECTUAL PROPERTY RIGHTS LICENSED HEREUNDER, (ii) THAT ANY ACTIVITIES OF THE PARTIES CONTEMPLATED BY THIS AGREEMENT SHALL BE FREE FROM INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; or (iii) THAT THE DECOPAC BAKERY ORDERING SYSTEM WILL BE UNINTERRUPTED OR ERROR FREE 24/7.
11. Indemnification, Insurance and Limitation of Liability.
Each Party (the “Indemnifying Party”) shall defend, indemnify and hold harmless the other Party, including its affiliates, officers, agents, directors, employees and representatives (collectively, the “Indemnified Parties”), from any and all third-party claims, demands, actions and causes of action brought against an Indemnified Party in connection with any and all injuries, losses, damages or liability of any kind whatsoever arising, directly or indirectly, out of any breach by the Indemnifying Party or its respective employees or Subcontractors of representations and warranties set forth in Sections 10.1 and 10.2 above and confidentiality and data security provisions of this Agreement, including without limitation Sections 1, 3, 6 and 8. Notwithstanding the forgoing an Indemnified Party’s responsibilities under this Section 11 shall not apply to the extent any liability hereunder is proximately caused by the negligence, violation of laws or breach by the Indemnified Party. This indemnification obligation shall include, without limiting the generality of the foregoing, reasonable attorney fees and other costs or expenses incurred in connection with the defense of any and all such claims, demands, actions, or causes of action.
With respect to any indemnification obligations under this Agreement: (i) the Indemnified Party will notify the Indemnifying Party in writing promptly upon learning of any claim or suit for which indemnification may be sought; provided that failure to do so shall not affect the indemnity except to the extent the Indemnifying Party is prejudiced thereby; (ii) the Indemnifying Party shall have control of the defense or settlement, provided that the Indemnified Party shall have the right to participate in such defense or settlement with counsel of its own selection and at its sole expense and; the Indemnifying Party retains counsel having expertise in handling cases of the same specialty in the same jurisdiction; (iii) the Indemnified Party shall reasonably cooperate with the defense, at the Indemnifying Party's expense; and (iv) the Indemnifying Party shall not, without the Indemnified Party's express prior written consent, make any admission or stipulation, or consent to any settlement agreement or injunctive or nonmonetary relief which could adversely affect any Indemnified Party, or settle or compromise any claim subject to this subsection and brought against both Parties without the other Party’s prior written consent, which consent shall not be unreasonably withheld.
11.3 DecoPac Bakery Ordering System.
DecoPac shall defend, indemnify and hold the Indemnified Parties harmless from all third-party claims, demands, actions and causes of action asserted in connection with any claim that the use of the DecoPac Bakery Order System as permitted herein, exclusive of any Artwork and Products provided by Retailer, or Other Vendor, infringes upon the intellectual property rights of any third party.
Each Party agrees to maintain during the Term of this Agreement 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).
11.5 Limitation of Liability.
EACH PARTY ACKNOWLEDGES AND AGREES THAT IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS OR DAMAGES THAT RESULT FROM INCONVENIENCE OR DELAY), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. NOTWITHSTANDING THE FOREGOING, INDEMNIFICATION CLAIMS UNDER PARAGRAPH 11.1, CLAIMS FOR GROSS NEGLIGENCE AND VIOLATIONS OF CONFIDENTIALITY UNDER PARAGRAPH 8 ARE EXCLUDED FROM THE LIMITATION OF LIABILITY IN THIS SECTION 11.5.
12. Miscellaneous Provisions.
The inclusion of headings in this Agreement is for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The word “including” means “including, without limitation”. All words used in this Agreement shall be construed to be of such gender or number as the circumstances require.
12.2 No Agency Relationship.
Neither Party shall have any authority to bind the other Party to any contract, representation, understanding, act, or deed concerning the other Party. This Agreement shall not be deemed to establish a joint venture or partnership between the Parties.
All notices, requests, demands, and other communications required or permitted hereunder (“Notices”) shall be in writing and shall be sufficiently given if made by hand delivery, facsimile, email, overnight delivery service or by registered or certified mail (postage prepaid and return receipt requested) to the parties at the addresses, facsimile numbers and email addresses specified below (or at such other address, facsimile number or email address for a party as shall be specified by like Notice). All such Notices shall be deemed to have been duly given: when delivered by hand, if personally delivered; five (5) Business Days after being deposited in the mail, postage prepaid, if delivered by mail; when transmission is confirmed, if sent by facsimile or email; and the next day if sent overnight by a reputable overnight delivery service.
If to Retailer:
To the person and entity at the address identified on the set up form for the DecoPac Bakery Ordering System
If to DecoPac:
3500 Thurston Avenue
Anoka, Minnesota 55303
Attn: Mr. John Anderson, President
12.4 No Modification.
This Agreement may not be amended or modified except by an instrument in writing signed by an authorized representative of each Party. The failure of a Party to enforce at any time for any period the provisions of or any rights deriving from this Agreement shall not be construed to be a waiver of such provisions or rights or the right of such Party thereafter to enforce such provisions, and no waiver shall be binding unless executed in writing by both Parties.
If any term or other provision of this Agreement is determined to be invalid, illegal or incapable of being enforced by any law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect and the Parties shall negotiate in good faith whatever revisions are necessary to such provision in order to render it valid, legal and enforceable while preserving its intent. If such modification is not possible, the Parties will negotiate in good faith a substitute provision that is legal and enforceable and achieves the same objective.
12.6 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the Parties including, their respective successors, permitted assigns, heirs, parent companies, subsidiaries, related entities and legal representatives in their official capacities.
Except as specifically authorized hereunder, this Agreement may not be assigned by any Party without the prior written consent of the other Party nor may any Party delegate any duties involving access to Confidential Information. Each Party shall be solely responsible for the performance of its respective subcontractors; no assignment shall relieve the assigning Party of its obligations of confidentiality hereunder.
12.8 Entire Agreement.
This Agreement, together with any Vendor Kiosk Agreement(s) subsequently executed by Other Vendor(s), constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes any prior agreements or understandings.
12.9 Governing Law; Jurisdiction and Venue.
Regardless of the place of its physical execution or performance, the provisions of this Agreement shall in all respects be construed according to, and the rights and liabilities of the Parties hereto shall in all respects be governed by the substantive laws of New York and the United States without regard to and exclusive of New York’s conflict of laws rules. Please confirm Retailer’s acceptance of the terms and conditions of this Agreement by checking the box on the opening page of this application.