SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT (THE “AGREEMENT”) GOVERNS THE ACQUISITION AND USE OF THE VINTORY SOFTWARE PLATFORM LOCATED AT APP.VINTORY.COM (THE “SOFTWARE”). BY (1) ACCESSING THE SOFTWARE, (2) CLICKING A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT, OR (3) EXECUTING A CUSTOMER AGREEMENT, STATEMENT OF WORK, OR OTHER DOCUMENT THAT INCORPORATES THIS AGREEMENT BY REFERENCE (“ORDERING DOCUMENT”), LICENSEE AND ITS AUTHORIZED USERS AGREE TO THE TERMS OF THIS AGREEMENT. IN THE EVENT OF ANY CONFLICT BETWEEN THE ORDERING DOCUMENT AND THIS AGREEMENT, THIS AGREEMENT SHALL PREVAIL UNLESS THE ORDERING DOCUMENT EXPRESSLY PROVIDES THAT IT IS MODIFYING THIS AGREEMENT. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
This Agreement was last updated on January 1, 2021. It is effective between Licensee and Vintory as of the date of Licensee’s acceptance.
- 1.1 “Authorized Users” means those persons designated by Licensee as permitted to access the Software.
- 1.2 “Licensee” means the party to whom Vintory is to provide the Software pursuant to the Ordering Document (whether identified as “licensee”, “customer”, “client” or similar designation in the Ordering Document).
- 1.3 “Vintory” means Vintory, LLC, a Maryland limited liability company.
2. SOFTWARE LICENSE
- 2.1 Limited License. Subject to the terms and conditions of this Agreement and the Ordering document, including without limitation Licensee’s payment of the fees specified in the Ordering Document, Vintory grants to Licensee a non-exclusive, non-transferrable, limited license to access and use the Software during the Term.
- 2.2 Updates. Licensee understands and acknowledges that the contents of the Software will change over time as the it is updated, and that at any given time it has a right to access and use the Software to which it is subscribed as it exists at that time. Certain portions of the Software may be provided by Vintory’s third-party licensors, and Vintory’s ability to provide such portions of the Software may be subject to the willingness of such licensors to continue to contract with Vintory. Features and functions of the Software are provided “as is” and as they may be modified, supplemented, or removed from time to time in Vintory’s sole discretion. Vintory shall have no liability to Licensee for any modification to the Software.
- 2.3 Intellectual Property Ownership. Licensee acknowledges and agrees that, as between Licensee and Vintory, the Software and any related documentation (including, without limitation, the content, layout, functions, design, appearance, trademarks, service marks, copyrights, patents, and other intellectual property comprising the Software) are the property of Vintory, whether or not they are trademarked, copyrighted, or patented. Licensee acknowledges and agrees that this Agreement does not transfer any ownership, right, title, or interest in the Software, nor any part thereof, except the limited license provided hereunder, and Licensee expressly disclaims and waives any and all claims to any ownership interest in any such information or materials. Subject to the limited rights expressly granted hereunder, Vintory, its affiliates and/or its licensors reserve all right, title, and interest in and to the Software, including all related intellectual property rights. No rights are granted to Licensee hereunder other than as expressly set forth herein.
- 2.4 Third-Party Applications. “Third-Party Applications” means computer software programs and other technology that are provided or made available to Licensee or Authorized Users by third parties, including those with which the Software may interoperate, including, for example, CRM, email, or sales and marketing automation software, if any. Vintory is not responsible for and does not endorse any Third-Party Applications. Licensee’s use of Third-Party Applications is subject to the terms and conditions imposed by the providers thereof.
- 2.5 Support. Vintory will provide reasonable assistance and ongoing support to assist Licensee and Authorized Users in setting up and accessing the Software. Vintory will make its personnel available by email or online chat between the hours of 9:00 a.m. and 5:00 p.m. Eastern Time (Monday – Friday) and will make reasonable efforts to acknowledge support requests within 24 business hours. Premium support services are subject to any service-specific terms and conditions included with the Ordering Document.
- 2.6 Availability. Vintory will use commercially reasonable efforts to make the Software available 24 hours a day, 7 days a week, except for: (i) planned downtime, and (ii) unavailability caused by circumstances beyond Vintory’s reasonable control, including, without limitation, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, Third-Party Application, or denial of service attack.
3. AUTHORIZED USE OF SOFTWARE; RESTRICTIONS
- 3.1 Authorized Users. Licensee shall be entitled to designate as Authorized Users such number of persons as stated in the Ordering Document. If Licensee designates additional persons as Authorized Users beyond the number subscribed, such designation may be deemed by Vintory, to be confirmed by notice to Licensee, as Licensee’s subscription to such additional number of Authorized Users. In the event of such subscription, Vintory may charge Licensee additional subscription fees equal to the prevailing per-Authorized User rate multiplied by the period from the date of notice hereunder until the end of the then-current Term. Each Authorized User will be provided a unique username and password. Such usernames and passwords may not be shared and may not under any circumstances be used by anyone who is not an Authorized User. If any Authorized User’s login credentials are disclosed to any person who is not an Authorized User but who would satisfy the qualification requirements of Section 3.2 hereof, Vintory may, upon notice to Licensee, deem such sharing to be Licensee’s subscription to the number of additional Authorized Users equal to the number of persons to whom such credentials were disclosed. Licensee shall be responsible for compliance with the terms of this Agreement by all Authorized Users, including, without limitation, the restrictions on use and access to the Software set forth herein. Licensee acknowledges and agrees that Authorized Users must provide Vintory with certain identifying information, including their name and a business email address, and that Authorized Users are required to accept this Agreement in order to access the Software.
- 3.2 Qualification of Authorized Users. Licensee shall not designate any person as an Authorized User unless such person is: (1) a natural person and (2) an employee of Licensee. Licensee may designate a non-employee (i.e., an independent contractor) as an Authorized User only with Vintory’s prior permission and provided Licensee takes reasonable steps to ensure such non-employee uses the Software only as permitted under this Agreement. If the employment of any Authorized User that was in effect as of the date such person was designated as an Authorized User terminates, such person’s authorization to access the Software shall be revoked automatically without any further action by Vintory. In the event of a termination as described in the previous sentence, Licensee shall promptly notify Vintory and take all reasonable steps to ensure that such person ceases accessing the Software. Licensee may reassign Authorized User designations at any time subject to the foregoing qualification requirements.
- 3.3 Authorized Uses, Restrictions. Licensee shall not access or use the Software for any purpose except the business-to-business sales, marketing, or business development activities of Licensee. Licensee will not (i) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from the Software; (ii) reproduce, modify, create, or prepare derivative works of the Software or related documentation; (iii) distribute or display the Software or related documentation other than to Authorized Users; (iv) share, sell, sublicense, rent, or lease or otherwise distribute access to the Software, or use the Software to operate any timesharing, service bureau, or similar business; (v) create any security interest in the Software; (vi) alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within or on the Software or related documentation; or (vii) use automated means, such as bots or crawlers, to access the Software or extract information therefrom. Licensee may use the Software only in accordance with this Agreement and not for the benefit of any third party, except with Vintory’s express prior written permission. Upon expiration or termination of this Agreement for any reason, Licensee shall cease accessing the Software.
- 3.4 Unauthorized Access and Use. In the event Vintory has a reasonable belief that Licensee or any Authorized User is engaged in any unauthorized access or use of the Software in violation of this Agreement, Vintory, in its sole discretion, may immediately suspend Licensee’s access to the Software until such violation is resolved to Vintory’s reasonable satisfaction. Vintory will have no liability to Licensee for such period of suspension and a suspension shall have no effect on the Term of this Agreement nor on Licensee’s obligation to pay the fees specified in the Ordering Document.
4. TERM AND TERMINATION
- 4.1 Term and Termination. This Agreement is not cancellable and shall remain in effect until it expires or is earlier terminated according to the terms of the Ordering Document (the “Term”).
- 4.2 Effect of Termination. Upon expiration or termination of this Agreement for any reason, Licensee acknowledges and agrees that its access to the Software may be automatically terminated, all passwords and individual accounts removed, and all information that has been uploaded into Vintory’s systems by Licensee or its Authorized Users destroyed.
5. REPRESENTATIONS AND WARRANTIES
- 5.1 Mutual Representations and Warranties. Each party represents and warrants that: (a) it is duly organized and validly existing and authorized to do business in the jurisdictions where it operates; and (b) it has the requisite power and authority to enter this Agreement and entering and complying with its obligations under this Agreement does not violate any legal obligation by which such party is bound.
- 5.2 Licensee’s Representations and Warranties. Licensee represents and warrants, and covenants that it will not, in connection with this Agreement, including its use of or access to the Software, engage in, encourage, or permit conduct that violates or would violate any applicable law, rule, or regulation or any right of any third party.
6. DISPUTE RESOLUTION
- 6.1 Attorney Fees. In the event of any dispute arising under this Agreement, the prevailing party shall be entitled to recover its reasonable costs and expenses actually incurred in endeavoring to enforce the terms of this Agreement, including reasonable attorney fees.
- 6.2 Arbitration. Any dispute, claim, or controversy arising out of or relating to this Agreement, including, without limitation (1) claims relating to the breach, termination, enforcement, interpretation or validity thereof, (2) claims alleging tortious conduct (including negligence) in connection with the negotiation, execution, or performance thereof, or (3) the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration in accordance with the then current Streamlined Arbitration Rules and Procedures of JAMS. The arbitration shall be conducted in Baltimore County, Maryland before a single arbitrator chosen by JAMS. The decision of the arbitrator shall be final and binding upon the Parties. Judgment upon the arbitration award may be entered in any court having jurisdiction. Notwithstanding the foregoing, Licensee recognizes that the breach of this Agreement may cause irreparable harm to Vintory for which monetary damages may be insufficient, and in the event of such disclosure, Vintory shall be entitled to seek an injunction, temporary restraining order, or other provisional remedy as appropriate without being required to post bond or other security.
- 7.1 Licensee agrees to indemnify, defend, and hold harmless Vintory and its officers, directors, employees, agents, partners, successors, and permitted assigns from and against any and all actual or threatened claims of third parties arising out of or in connection with (a) Licensee’s access or use of the Software in violation of any law, (b) Licensee’s violation of any provision of this Agreement, or (c) the use of the Software by any third party to whom Licensee has granted access (including access obtained through use of the usernames and passwords assigned to Licensee and its personnel).
8. LIMITATION OF LIABILITY
- 8.1 VINTORY’S LIABILITY TO LICENSEE UNDER OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO ACTUAL DAMAGES AND SHALL NOT EXCEED THE AMOUNT PAID BY LICENSEE TO VINTORY FOR THE THREE (3) CALENDAR MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL VINTORY BE LIABLE TO LICENSEE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR GOODWILL) RELATED TO THIS AGREEMENT AND/OR THE SOFTWARE, OR ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, INCLUDING CONTRACT, WARRANTY, TORT, STRICT LIABILITY, INDEMNITY OR NEGLIGENCE, EVEN IF VINTORY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
9. DISCLAIMER OF WARRANTIES
- 9.1 EXCEPT FOR ANY EXPRESS REPRESENTATIONS AND WARRANTIES STATED HEREIN, THE SOFTWARE IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, AND VINTORY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.
- 10.1 During the Term of this Agreement and for a period of two (2) years after its expiration or termination, Licensee shall maintain complete and accurate records of Licensee’s use of the Software sufficient to verify compliance with this Agreement. Licensee shall permit Vintory and its auditors, upon reasonable advance notice and during normal business hours, to examine such records and any systems used by Licensee in connection with the Software. The scope of any such audit will be limited to verification of Licensee’s compliance with the terms of this Agreement. Any audit performed under this paragraph shall be at Vintory’s expense, unless the audit uncovers material non-compliance with this Agreement, in which case, Licensee shall reimburse Vintory for its reasonable out-of-pocket expenses incurred in performing such audit.
- 11.1 Compliance with Laws. Licensee is solely responsible for ensuring that Licensee’s and its Authorized Users’ use of the Software complies with all applicable federal, state, local, and foreign statutes, rules, regulations, orders and restrictions of any domestic or foreign government or any instrumentality or agency thereof having jurisdiction over the conduct of Licensee’s business and that Licensee has filed, obtained, maintained or submitted all necessary licenses, reports, documents, forms, notices, applications, records, submissions and supplements or amendments required by law.
- 11.2 Governing Law. Any dispute in connection with this Agreement shall be governed by the laws of the State of Maryland, excluding its choice of law rules. Each party irrevocably consents to the personal jurisdiction of the state and federal courts located in the State of Maryland for purposes of any lawsuit seeking to enforce this Agreement.
- 11.3 Assignment. Vintory may assign this Agreement to a successor-in-interest pursuant to a merger, stock sale, or asset sale. Licensee shall not assign its rights or delegate its obligations under this Agreement without Vintory’s prior written consent.
- 11.4 Suggestions and Feedback. Vintory shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Software any suggestions, enhancement requests, recommendations or other feedback provided by Licensee, including Authorized Users, relating to the Software.
- 11.5 Notices. Licensee shall provide an email address for notices under this Agreement. All notices or other communications permitted or required to be given hereunder shall be sent by electronic mail to the email address provided by the other party for such purpose and shall be deemed given when sent. Notices to Vintory shall be sent to legal@Vintory.com. If Licensee fails to provide an email address for notices, Vintory may provide notices hereunder by any means reasonably calculated to provide Licensee with actual notice thereof.
- 11.6 Amendment. Vintory may propose amendments to this Agreement at any time by providing notice of such proposed amendments in a manner permitted hereunder. Such proposed amendments shall be deemed accepted and become part of this Agreement thirty (30) days after the date such notice is given unless Licensee informs Vintory that it does not accept such amendments. In the event Licensee informs Vintory that it does not accept the proposed amendments, the proposed amendments will not take effect and the existing terms will continue in full force and effect. No other modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of Vintory and Licensee.
- 11.7 Force Majeure. Vintory and its affiliates will be liable for any for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including without limitation, acts of God, fire, strikes or labor disputes, electrical or power outages, natural disasters, the elements, epidemics, civil disturbances, acts of terrorism, war, or acts or orders of government.
- 11.8 Entire Agreement. This Agreement constitutes the entire Agreement of the parties and supersedes all prior communications, understandings, and agreements relating to the subject matter hereof, whether oral or written. Any un-expired subscription set forth in any Ordering Document or agreement between the parties for access to Vintory Software shall be governed by the terms hereof.