Subject to the terms of this Agreement, Meet Your hereby grants to Customer a nonexclusive, non-transferable, revocable, limited right to access and use via the Internet, solely for the Permitted Use, the Meet Your SaaS during the Term. Customer is responsible for maintaining the security of the activation codes and administrative login information used to access the Meet Your SaaS. Customer is solely responsible for connection of Customer’s systems to a telecommunications service that provides Internet access for purposes of Customer’s access and use of the Meet Your SaaS.
Except for the limited rights granted in Section 1.1 (Limited Right to Access and Use) and an SOW, Meet Your and its licensors reserve all right, title, and interest in and to the Meet Your SaaS, the API, Meet Your’s other software and systems, Activation Data, Meet Your’s web applications, browser extensions, software applications, tools, and other application services, and Meet Your’s logos, marks, and other content Meet Your provides (collectively, the “Meet Your Proprietary Content and Applications”). In the event that Customer makes improvements or other modifications to the Meet Your Proprietary Content and Applications, Customer hereby grants to Meet Your a nonexclusive, royalty-free, fully paid up, irrevocable, perpetual, worldwide license (with the right to assign and sublicense) to use, display, copy, distribute, modify, make derivative works of, sell and import such modifications and improvements. Nothing in the preceding sentence is to be construed as granting Meet Your any rights to use Customer’s trademarks in commerce.
Meet Your understands that consistent availability of the Meet Your SaaS is important to users. However, Meet Your may suspend access to the Meet Your SaaS for any of the following reasons: (a) to prevent damages to, or degradation of, the Meet Your Proprietary Content and Applications; (b) to comply with any law, court order, or other governmental request; or (c) if Customer violates the terms of this Agreement. Meet Your shall use reasonable efforts to provide Customer with notice before or promptly following any suspension of access to the Meet Your SaaS. Meet Your shall restore access to the Meet Your SaaS as soon as the event giving rise to suspension has been resolved. Customer acknowledges that the API and the Meet Your SaaS may contain functionality that monitors Customer’s compliance with this Agreement. Customer shall not circumvent or attempt to circumvent any of the foregoing without Meet Your’s prior authorization. This Agreement is not to be construed as imposing any obligation or duty on Meet Your to monitor the Product Data or Customer’s use of the API or Meet Your SaaS.
Each party represents and warrants to the other that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
Meet Your warrants to Customer that the API and the Meet Your SaaS will operate in substantial conformity with the Documentation during the Term. Customer’s sole and exclusive remedy, and Meet Your’s sole and exclusive liability, for a breach of the foregoing warranty is for Meet Your, in its sole discretion, to either use its best efforts to remedy the breach or issue Customer a credit for the prepaid portion of the fee for the affected API and Meet Your SaaS.
Some customers of Meet Your request Meet Your to provide Professional Services to support their efforts. Professional Services may be ordered pursuant to an Order Form or statement of work. If Meet Your provides Professional Services to Customer pursuant to one or more statements of work (each, an “SOW”), each SOW will be considered a part of and an attachment to this Agreement. No SOW will be effective unless it is signed by the parties and references this Section 2.
The initial term of this Agreement commences on the Effective Date and ends one year from the Effective Date. The initial term and each subsequent renewal term will automatically renew for a period of one year, unless (a) either party provides the other party with notice of its intent not to renew at least 30 days prior to the commencement of the next renewal term, or (b) a subsequent Order Form extends the term to a later date, in which case such later date will be the basis for subsequent renewals. The initial term and all subsequent renewal terms are referred to together as the “Term.”
A party may terminate this Agreement with 60 days notice of such termination. The following sections survive termination: 1.3 (Meet Your Proprietary Content and Applications; Feedback), 1.4 (Product Data Owned by Customer), 4 (Termination), 5 (Fees and Payment), 6 (Disclaimer of Warranties), 7 (Limitation of Liability and Damages), 8 (Certain Definitions), and 9 (General Provisions).
Unless otherwise provided in an Order Form or SOW, Customer shall pay Meet Your the fees as stated monthly in advance. For fees and charges not otherwise paid monthly in advance, Customer shall pay Meet Your the amounts listed on Meet Your’s invoice by the due date specified in the Order Form or SOW. Payments not made within the applicable time period are subject to late charges equal to the lesser of (a) one and one-half percent (1.5%) per month of the overdue amount, or (b) the maximum amount permitted under law, plus in either case, costs of collection and reasonable attorneys’ fees. If Customer believes that an invoice is incorrect and Customer desires to obtain an adjustment of such invoice, Customer must provide Meet Your notice thereof including relevant details within thirty (30) days of the invoice date. Fees applicable to a renewal term may be adjusted with sixty (60) days’ notice to Customer prior to the start of such renewal term. Customer is responsible for all sales, use, and similar taxes. Customer shall pay all amounts in U.S. dollars.
EXCEPT AS PROVIDED IN SECTIONS 1.6 (MUTUAL WARRANTIES) AND 1.7 (ADDITIONAL MEET YOUR WARRANTY), THE PROFESSIONAL SERVICES, THE MEET YOUR SAAS AND THE MEET YOUR PROPRIETARY CONTENT AND APPLICATIONS ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. MEET YOUR AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE, AND NON-INFRINGEMENT.
NEITHER MEET YOUR NOR ITS VENDORS NOR ITS LICENSORS WILL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT DAMAGES, SUCH AS LOSS OF PROFITS, SALES, BUSINESS, OR DATA, OR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS DAMAGES, INCLUDING EXEMPLARY AND PUNITIVE DAMAGES, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT. THE TOTAL LIABILITY OF MEET YOUR AND ITS VENDORS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, REGARDLESS OF WHETHER UNDER A CONTRACT, TORT, OR OTHER THEORY OF LIABILITY, FOR ANY AND ALL CLAIMS OR TYPES OF DAMAGES WILL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY CUSTOMER DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.
As used in this Agreement, the terms below when capitalized have the following meanings:
“Force Majeure Event” means any act or event, whether foreseen or unforeseen, that (a) prevents the Nonperforming Party (defined in Section 9.9) from either performing its obligations under this Agreement or satisfying any conditions to the obligations of the other party under this Agreement, (b) is beyond the reasonable control of and not the fault of the Nonperforming Party, and (c) the Nonperforming Party has been unable to avoid or overcome by the exercise of reasonable diligence. Notwithstanding the foregoing, a Force Majeure Event does not include economic hardship or cost increases.
“Meet Your SaaS” means the software as a service made available by Meet Your, accessible via the Internet, that provides functionality related to the display of salon services and available stylists, including any updates that Meet Your may provide.
“Permitted Use” means the display of Product Data on the Customer websites listed in an Order Form in the normal course of Customer’s business.
“Professional Services” means consulting services provided by Meet Your.
“Activation Data” means technical information that Meet Your gathers periodically to (i) facilitate the provision of updates to the Meet Your SaaS, and (ii) verify compliance with the terms of this Agreement.
“API” means the application programming interface that Meet Your makes available to Customer that is specifically designed to access the Meet Your SaaS from a website, and display certain Product Data to such website, including any updates that Meet Your may provide.
To be effective, any notice, consent, or communication required or permitted to be given in connection with this Agreement must be in writing and personally delivered or sent by messenger, overnight courier, email, or certified mail and addressed to the address specified in the most recent Order Form, to the attention of the persons listed therein. Each party shall promptly notify the other of any change to such party’s address or contact information. All notices, consents, and communications are deemed delivered and received by the receiving party (i) if personally delivered or delivered by messenger, on the date of delivery or on the date delivery was refused, (ii) if delivered by overnight courier or certified mail, on the date of delivery as established by the return receipt, courier service confirmation, or similar documentation (or the date on which the courier or postal service, as applicable, confirms that acceptance of delivery was refused or undeliverable), or (iii) if emailed, the date on which the email is confirmed through an acknowledgment of receipt by either the intended recipient or other third party confirmation of delivery service (with an automatic “read receipt” not constituting receipt of an email).
No amendment or termination (other than termination as expressly permitted by this Agreement) of this Agreement is effective unless it is in writing and signed by the party against whom enforcement is sought. No failure or delay in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose that it is given and is not to be construed as a waiver on any future occasion or against any other person. To the extent any course of dealing, act, omission, failure, or delay in exercising any right or remedy under this Agreement constitutes the election of an inconsistent right or remedy, that election does not either constitute a waiver of any right or remedy or limit or prevent the subsequent enforcement of any provision.
Without the prior consent of the other party, neither party may (i) assign this Agreement or any of its rights under this Agreement, or (ii) delegate any performance under this Agreement, except in either case, to a successor in connection with a merger, sale of substantially all its assets, or similar reorganization. Any purported assignment or delegation in violation of this section will be void. This Agreement binds and inures to the benefit of the parties and their respective successors and permitted assigns.
The laws of the State of Delaware govern all matters arising out of or relating to this Agreement, including, without limitation, its interpretation, construction, performance, and enforcement, without giving effect to such state’s conflicts of law principles or rules of construction concerning the drafter hereof. The parties hereby irrevocably and unconditionally submit to the jurisdiction of the federal and state courts located in the state of Delaware, for the purpose of any suit, action, or other proceeding arising out of or based upon this Agreement, which courts are the exclusive forum for any such suit, action, or other proceeding.
Customer’s suggestions, comments, requests, and other feedback (collectively, “Feedback”) to Meet Your with respect to Meet Your’s offerings and services are welcomed by Meet Your. Feedback is voluntary, and Meet Your is not required to hold Feedback in confidence. Customer hereby grants Meet Your an irrevocable, non-exclusive, perpetual, royalty-free, worldwide license (with the right to assign and sublicense) to use, display, copy, distribute, make derivative works of, sell and import (a) Feedback and (b) for the sole purpose of improving the capabilities of the algorithms that power the Meet Your SaaS and any other Meet Your Proprietary Content and Applications made available to Customer pursuant to an SOW, the Product Data. Nothing in this section is to be construed as granting Meet Your a right to use Customer’s trademarks in commerce.
If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of this Agreement will not be affected or impaired.
This Agreement, together with the Order Forms and any other exhibits and attachments hereto and thereto, constitutes the entire and final agreement between the parties. It is the complete and exclusive expression of the parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations, term sheets, letters, memoranda, and other discussions and agreements, either oral or in writing, between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. No provision of this Agreement may be explained, supplemented, or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither party has relied on any statement, representation, warranty, or agreement of the other party except for those expressly contained in this Agreement. In the event of a conflict between the body of this Agreement and any Order Form, SOW, exhibit, or other attachment, the governing priority of the documents is as follows: (a) this Agreement, (b) Order Form(s), (c) SOW(s), and (d) exhibits or other attachments, unless (i) the conflicting provision expressly states that it amends or supersedes a document that is listed in this sentence as having higher governing priority, (ii) such document is signed or initialed by both parties, and (iii) such document is dated as of or after the document that it amends or supersedes.
The parties to this Agreement are independent contractors; there is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.
If a Force Majeure Event occurs, the party unable to perform (the “Nonperforming Party”) is excused from performing whatever is prevented by the Force Majeure Event to the extent so prevented, and satisfying whatever conditions precedent to the other party’s obligations that cannot be satisfied. A Force Majeure Event does not excuse the payment of money. When the Nonperforming Party is able to resume performance of its obligations under this Agreement, or satisfy the conditions precedent to the performing party’s obligations, it shall immediately do so. The relief offered by this section is the exclusive remedy available to the performing party with respect to a Force Majeure Event. Neither party will have the right to claim damages or to terminate this Agreement as a result of a Force Majeure Event.
The descriptive headings of the sections and subsections of this Agreement are for convenience of reference only. They do not constitute a part of this Agreement and do not affect this Agreement’s construction or interpretation.
If the parties sign this Agreement in counterparts, each counterpart constitutes an original, and all counterparts, collectively, constitute only one agreement. The signatures of all the parties need not appear on the same counterpart, and delivery of a signed counterpart signature page by fax or other electronic transmission is as effective as signing and delivering an original.