Terms and Conditions

Drync Services Agreement - NJ Pilot Program 2018

1. DRYNC SERVICES AND SUPPORT

 

1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Merchant the Services. As part of the registration process, Merchant will identify an administrative user name and password for Merchant’s Company account.  Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

1.2 Subject to the terms hereof, Company will provide Merchant with reasonable technical support services in accordance with the terms set forth in Exhibit E.

2. RESTRICTIONS AND RESPONSIBILITIES

 

2.1 Merchant will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.

2.2 Merchant represents, covenants, and warrants that Merchant will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations.  Merchant hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Merchant’s use of Services. Although Company has no obligation to monitor Merchant’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.3 Merchant shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Merchant shall also be responsible for maintaining the security of the Equipment, Merchant account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Merchant account or the Equipment with or without Merchant’s knowledge or consent.

3. CONFIDENTIALITY; PROPRIETARY RIGHTS

 

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service.  Proprietary Information of Merchant includes non-public data provided by Merchant to Company to enable the provision of the Services (“Merchant Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

3.2 Intellectual Property Rights 

(i) Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

(ii) Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Merchant Data and data derived therefrom), and Company will be free (during and after the term hereof) to (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (b) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

(iii) Drync White Label

a.           Merchant has right, title and interest in and to any data provided to Company by its customers or any end user through the Merchant app, including without limitation all e-mail and/or other contact information (“Merchant Data”). Company has the right to anonymous use of demographic, preference, and any/all other user-related data.  Company has the right to display user tasting notes, ratings, social activity, user name, and user photos across Company’s network of apps.  Company will never directly market to Merchant’s users unless they are also registered with Company, with the exception of brand-sponsored promotions /advertisements that may appear in Merchant’s app.   

b.          Buyer Data: Merchant will be provided access to buyer information such as name, mailing address, delivery address, and telephone number, as available.

c.           User emails: Any emails collected for registered users of the Merchant’s app shall be accessible by the Merchant. MERCHANT AGREES NOT TO SEND ANY E-MAILS OR OTHER COMMUNCIATIONS THAT VIOLATE ANY APPLICABLE REGULATION, RULE, INDUSTRY PROTOCOL OR LAW (INCLUDING, WITHOUT LIMITATION, THE CAN-SPAM ACT).

User accounts: Users may also use their Merchant App credentials to log into Company’s apps. If Merchant terminates this contract, Company will retain accounts and all user information stored therein, so that users may retain their history and content through the Company app network.

4. PAYMENT OF FEES

 

4.1 Merchant will pay Company the applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”).  If Merchant’s use of the Services requires the payment of additional fees (per the terms of this Agreement), Merchant shall be billed for such usage and Merchant agrees to pay the additional fees in the manner provided herein.  Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Merchant (which may be sent by email).   At the completion of the Initial Service Term or then‑current renewal term, Fees will be subject to an automatic increase of five percent (5%) of the Base Monthly Fee.  If Merchant believes that Company has billed Merchant incorrectly, Merchant must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to Company’s customer support department.

4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company fifteen (15) days after the mailing date of the invoice or as indicated in an invoice issued by Company.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Merchant shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income. 

5. TERM AND TERMINATION

 

5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”).  Prior to Merchant’s White Label App Go-Live Date, (i) if Merchant is non-responsive for a period of three (3) months, (ii) does not complete required dependencies (for example, banking setup, or curation of inventory), (iii) declines to launch their App after being notified by Company that App has been completed, or (iv) elects to terminate this Agreement, any discounts applied to the Integration Fee are voided and Merchant must pay the Integration Fee in its entirety as well as a penalty of $1,000.00  which is due within seven (7) days of termination and .  Either Party may terminate this Agreement with at least thirty (30) days prior written notice.  Excluding prepayments, if the Merchant elects to terminate this Agreement prior to the completion of the Initial Service Term, Merchant must pay an early termination fee penalty equal to $3,000.00. After the completion of the Initial Service Term Merchant can terminate without penalty. Termination notices should be sent to Legal@drync.com.      

5.2 In addition to any other remedies it may have, either Party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other Party materially breaches any of the terms or conditions of this Agreement.  Merchant will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all relevant (per section 3.2 above) Merchant Data available to Merchant for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Merchant Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

6. WARRANTY AND DISCLAIMER

 

6.1 Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  However, Company does not warrant that the Services will be uninterrupted or error free INCLUDING ANY DATA DISCREPANCIES; nor does it make any warranty as to the results that may be obtained from use of the Services.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

6.2 Merchant represents and warrants to Company that it has and will maintain all licenses, permits and authorizations (collectively, “Permits”) necessary to sell products marketed through app. Merchant will ensure products sold and handled comply with all applicable laws.

7. INDEMNITY

 

7.1 Company shall hold Merchant harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing.  The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Merchant specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Merchant continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Merchant’s use of the Service is not strictly in accordance with this Agreement.  If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Merchant a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Merchant’s rights hereunder and provide Merchant a refund of any prepaid, unused fees for the Service

7.2 Merchant shall defend, hold harmless and indemnify Company and their respective officers, directors, employees, successors and assigns, against any and all liabilities, losses, expenses (including reasonable attorney’s fees), damages, and penalties imposed upon, incurred by, or asserted against any of them that result from any and all claims, causes of action, legal proceedings or demands: (i) that Merchant breached its representations, warranties, or covenants; (ii) that arise from product sales or shipment;  (iii) that the product, product packaging or labeling, or product Information infringes upon or violates a third party’s intellectual property or is false or misleading; or (iv) that the product causes any damage or injury to property or persons.  THE INDEMNIFICATION SET FORTH HEREUNDER SHALL APPLY TO LOSSES CAUSED IN WHOLE OR IN PART BY ANY CLAIMS OF PRODUCT LIABILITY, BREACH OF WARRANTY, NEGLIGENCE (WHETHER SOLE, JOINT OR CONCURRENT), GROSS NEGLIGENCE, STRICT LIABILITY OR SIMILAR OR RELATED CLAIMS ARISING IN WHOLE OR IN PART IN RELATION TO PRODUCTS MANUFACTURED, DISTRIBUTED OR SOLD BY MERCHANT AND MARKETED OR ADVERTISED BY DRYNC.   This paragraph shall survive the expiration or termination of this Agreement for any reason. 

8. LIMITATION OF LIABILITY

 

8.1            NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. E-COMMERCE

 

Company’s platform enables Merchant to market and sell beverage alcohol products to Merchant’s customers. The following terms govern Company’s role within the app.

9.1 Merchant Authority. Merchant has the sole authority to exercise pricing of products sold by Merchant, and has sole authority over all funds and profits from sales under Merchant’s alcoholic beverage license(s). Merchant also has the unconditional right to accept or reject any order placed through Company app.

9.2 Products. Company’s platform enables Merchant’s customers to place orders for Merchant’s products and make payments to Merchant for such sales.  For clarification, Company does not own, possess, buy, sell, or control the solicitation or sale of any alcoholic beverage. Company holds no licenses to buy, own or sell alcoholic beverages.

9.3 Consumer payments. When consumer places an order in Drync White Label the Funds are collected and transferred into Merchant’s bank account via a third party processor.  Full order details are available at all times through the Merchant portal.

9.4 Inventory. Company will display only those products in Merchant’s App that are present and listed as in-stock in Merchant’s automated and/or manual inventory feeds.

9.5 Tax. Merchant will be responsible for providing Company with the appropriate tax rates and Company will be responsible for calculating the appropriate taxes at the time of the order on behalf of the Merchant, where applicable. Merchant shall be responsible for the payment of all taxes related to sales of products in their state.

9.6 Consumer Support. Merchant will provide front-line support to consumers, perform the fulfillment support functions and processing product returns. Merchant is solely responsible for costs and expenses related to defective or damaged product, chargebacks, as well as excise and sales taxes incurred from product sales and shipments. Company will provide 2nd level and technical support to Merchant as necessary as stated in Exhibit E.

9.7 Order Communication. Company will transmit to Merchant order information on consumer’s behalf through a real-time online portal, through which Company and Merchant will communicate regarding the status of each order.

9.8 Buyer Communication. All written or electronic communications to buyers shall state that Merchant is the seller.

9.9 Shipping & Delivery.  Merchant will determine and set up customer’s shipping and delivery rates as provided by retailer.

9.10 Drync Transaction Fee.  Merchant agrees to pay Company a fee as agreed upon in the Order Form of total product sales less any discounts (“Net Product Total” or “NPT”) for all sales arising out of the app. Refer to Exhibit C for the performance based pricing model.  At the end of every month, Company will present Merchant with an invoice detailing NPT and the total fees for said month. Merchant will be   on the 5th of every month for the preceding month’s NPT sales.

10. MISCELLANEOUS

 

10.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by Merchant except with Company’s prior written consent.  Company may transfer and assign any of its rights and obligations under this Agreement without consent.  This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both Parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Merchant does not have any authority of any kind to bind Company in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.

10.2  The Parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Merchant otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.  Merchant also give Company the rights and licenses to use all trademarks, servicemarks, trade names, copyrights and all applications therefor and licenses thereof (the “Intellectual Property”) in any sales, training or marketing materials developed by Company.

Note - Exhibits A through C are included with signed agreement.


Exhibit D - Statement of Work

Inventory feeds

Company will work with Merchant to create a repeatable process for acquiring on-hand inventories and importing the data regularly into Company’s platform. Brick-and-mortal retail store inventories will be automatically sourced from Merchant’s POS.

Below is an example of the desired inventory fields.

Required:

Product Name

Vintage

Distributor Identifier

Distributor SKU

Regular Price

Current Sale Price

Availability

On-hand qty

Package Type & Size

Store SKU (unique identifier that won’t change from one export to the next)

 

Additional Information That Is Helpful:

Region

Varietals/ Product Type

Any description or review text

Label images/bottle shots available

 

Tax Tables

Merchant will provide to Drync rules and tax tables for all products for sale in the app for localities it has legal right to sell to.

In-app branding

512x512 logo in PNG format with transparency

Color palette if available

Brand image for web landing page ie. Picture of inside or outside of store, etc.

Local Delivery Parameters

Merchant will provide to Drync its pricing and parameters for local delivery, if applicable: ie. valid regions (as defined by eligible zip codes), cart minimums, price schedule if appropriate. 

Provisioning of user accounts

Merchant may have up to 3 admin accounts for access to the Drync Retailer Portal. Drync will provide instructions on setting those accounts up upon contract signing.

Merchant training (on site or via webinar)

Once the contract is signed and inventory feed importing has been set up, Drync will provide training on the Retailer Portal, either via webinar or in-person.

Merchandising (on site and digital)

Drync will provide stock assets for the retailer to brand and promote the app on their website, social media and in email. This includes a Drync hosted store-branded sign up page for the app.

Custom development work (one-time) etc.

On a case-by-case basis, Drync may be open to doing custom development work.


Exhibit E - Support Terms

Company will provide Technical Support to Merchant and Merchant’s customers via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Eastern time, with the exclusion of Federal Holidays (“Support Hours”).

Merchant may initiate a helpdesk ticket during Support Hours by calling [877-871-6226] or any time by emailing [feedback@drync.com].

Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.


Exhibit F - Marketing & Advertising Services

Drync’s Marketing Services team offers brings years of expertise in app and beverage alcohol marketing to offer tailored marketing plans and hands on assistance to drive downloads, engagement and sales. Marketing Service levels can be tailored to your needs, ranging from the basic services to help bring your app to market, to receiving a dedicated full-time team of app marketing experts.

Retailers who have used Drync Marketing Services have seen immediate lift in downloads and sales:

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Marketing Services: 

·   Marketing Plan Development

·   Email Campaign Management

·   Promotions and Collection Creation

·   Collateral

·   Partnerships, Media Outreach and Event Support

 

Advertising Management Services:

·   iTunes Search Ads

·   Google Inside AdWords

·   Facebook Ad / Promoted Post Campaigns

For more details on Marketing and Advertising Services, contact sales@drync.com