END USER LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT (“Agreement”) is between VINX2 Winery Software, Inc., with an address at 548 MARKET ST #62071, San Francisco California 94104-5401 (“VINX2”) and VINX2 parent company JX2 Technology Pty Ltd with an address of 2/237 Young St Fitzroy 3065 Australia ("JX2") and you the End User (the “Client”). WHEREAS, VINX2 resells winery management software on a software as a service platform accessed through the URL ending in vinx2.net or other method agreed to in writing by VINX2 (“SaaS Software”); and WHEREAS, the Client desires to acquire a license for the access and use of the SaaS Software; and WHEREAS, the parties desire to set forth the terms and conditions under which VINX2 shall grant a SaaS Software license to the Client.
NOW THEREFORE, in consideration of the mutual covenants, premises and Agreements contained herein and such other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1.1 Definitions: As used in this Agreement, the following capitalized terms shall have the meaning set forth in this Section 1.1:
1.1.1 Business Day shall mean a day on which banks are open for business in San Francisco, California, excluding a Saturday, Sunday or public holiday;
1.1.2 Commencement Date shall mean the date of implementation of VINX2
1.1.3 Confidential Information shall mean any information of a party:
regarding the business or affairs of that party or its affiliates, subsidiaries or parent companies, including software (including programs, source or object codes), databases, specifications, trade secrets, techniques, formulae, concepts not reduced to material form, designs, plans, models, technical information, know-how, marketing and business plans, projections, proprietary methodologies, profit and loss statements, management reports, financial data and related information;
regarding the customers, employees or contractors of, or other persons doing business with, that party or its affiliates, subsidiaries or parent companies; which is by its nature confidential or which is designated as confidential by that party; or which the other party knows, or ought to know, is confidential;
1.1.4 Documentation shall mean the online knowledge base and guides relating to the SaaS Software provided by VINX2 to the Client, and includes any updates to the online knowledge base and guides supplied by VINX2 to the Client;
1.1.5 Intellectual Property Rights shall mean all industrial and intellectual property rights throughout the world, including rights in respect of inventions, copyright, patents, trade marks, designs, trade secrets, know-how and circuit layouts, and any right to registration, or any application or right to apply for registration, of such rights;
1.1.6 Subscription License has the meaning given in Section 3.1;
1.1.7 Subscription Fee shall mean the fee specified in a signed (digital or physical) Quote or Subscription Agreement from VINX2 to the Client;
1.1.8 Specified Purpose shall mean for the record keeping and management of a wine, food or beverage production facility
1.1.9 Term has the meaning given in Section 2; and
1.1.10 User shall mean each employee of the Client entitled to access the Software over the Client’s computer network.
2. This Agreement commences on the Commencement Date and shall continue in full force and effect until terminated in accordance with the terms hereof.
Grant of Subscription License.
3.1 Subject to timely payment of all fees and abiding by the terms and conditions of this Agreement, VINx2 grants to the Client a personal, non-exclusive, non-transferable license for the Term of this Agreement to:
3.1.1 use the SaaS Software via the URL ending in vinx2.net; and
3.1.2 use the online Documentation;
for the Specified Purpose set forth herein (“License”).
3.2 If the Client wishes to use the SaaS Software beyond the terms of the License, the Client must obtain VINX2’ prior written consent which may be withheld by VINX2 acting reasonably and may be given subject to such additional terms and conditions, including as to license fees, as determined by VINX2 acting reasonably at that time.
4.1 During the term of this Agreement, the Client shall not, and shall not authorize, permit, cause or procure any other person to:
4.1.1 use the SaaS Software or the Documentation for any other purpose other than the Specified Purpose;
4.1.2 lease, sub-license, lend, assign or transfer the SaaS Software, including user website access keys or the Documentation;
4.1.4 remove or obscure any copyright or trade mark notices on the SaaS Software or the Documentation; nor
4.1.5 use the SaaS Software or the Documentation for the benefit of any third party including through a service bureau arrangement; nor
4.2 Except as permitted by Section 4.3, the Client must not, and must not authorize, permit, cause or procure any other person to:
4.2.1 reproduce, copy or supply to any person a copy of, or alter, modify, reverse engineer, disassemble, reverse assemble or reverse compile, the whole or any part of the SaaS Software or any copy of the SaaS Software; or
4.2.2 reproduce, copy or supply to any person a copy of, or alter or modify all or any part of the Documentation.
4.3. The Client may make a non-Production Copy of the Documentation for back-up, testing, training and disaster recovery purposes only.
4.4 The Client must:
4.4.1 access and use the SaaS Software in accordance with the Documentation and any reasonable instructions from VINx2;
4.4.2 permit only VINx2, or persons authorized by VINx2, to maintain or modify the SaaS Software; and
4.4.3 use all reasonable efforts to protect the SaaS Software and Documentation from unauthorized access, use, reproduction, distribution or publication.
Delivery and Installation.
5.1 VINx2 will provide the Client access to the SaaS Software via the URL ending in vinx2.net.
Updates and Upgrades.
6.1 VINx2, in its sole discretion, may provide updates and upgrades to further versions of the SaaS Software, to which the Client will be granted access as per the terms of this Agreement.
Subscription Fee and Taxes.
7.1 The Client must pay VINx2 the Subscription Fees on the Commencement Date.
7.2 VINx2 and the Client acknowledge and agree that the liability for all taxes associated with the Software will be borne by the Client unless expressly agreed to the contrary in writing by VINx2. Client’s obligations to pay all taxes shall be absolute and unconditional and shall not be subject to any abatement, reduction, defense or counterclaim except and only to the extent that the Client claims lawful tax exemptions and provides VINx2 with valid exemption certificates.
8.1 The Client acknowledges that, JX2, owns, or is the licensee of, all Intellectual Property Rights in the SaaS Software and Documentation.
8.2 Other than the License expressly granted to the Client under this Agreement, the Client acknowledges and agrees that it does not have nor obtain any title or Intellectual Property Rights in the SaaS Software or the Documentation.
9.1 VINx2 may terminate this Agreement by giving 30 days notice to the Client if the Client commits a breach of any obligation under this Agreement and the breach:
9.1.1 is material and cannot be remedied; or
9.1.2 whether material or not, can be remedied, and the Client does not remedy the breach within 14 days of receipt of a notice from VINx2 specifying the breach and requiring the breach to be remedied.
9.2 For the purpose of, but without limiting, Section 9.1 a breach by the Client of the obligations in Sections 4.1, 4.2 or 4.3 will be considered to be material.
9.3 The Client may terminate this Agreement by giving 30 days notice to VINx2 if VINx2 commits a breach of any obligation under this Agreement and the breach:
9.3.1 is material and cannot be remedied; or
9.3.2 whether material or not, can be remedied, and VINx2 does not remedy the breach within 14 days of receipt of a notice from the Client specifying the breach and requiring the breach to be remedied.
9.4 Either party may terminate this Agreement immediately by notice to the other party if an Event of Bankruptcy occurs with respect to the other party.
9.5 For the avoidance of doubt, the License terminates on termination of this Agreement and all Licensee Fees that remain unpaid become immediately payable on the effective termination date where the termination is pursuant to clause 9.1, 9.2 or 9.4.
9.6 On the termination of this Agreement:
9.6.1 the Client must immediately:
18.104.22.168 cease using the SaaS Software and Documentation; and
22.214.171.124 return to VINx2, or if requested by VINx2, destroy all copies of the Documentation in its possession, custody or control;
9.6.2 each party must, and must ensure that its officers, employees, agents and contractors, return any Confidential Information belonging to the other party in its possession, custody or control; and
9.6.3 each party must, if requested by the other party, certify in writing that it has returned all material belonging to the other party and does not have any material belonging to the other party in its possession, custody or control.
Representations and Warranties.
10.1 Except as expressly provided by this Agreement and apart from any condition or warranty implied by law which may not be excluded, restricted or modified, VINx2 makes no representations, conditions or warranties, express or implied, under this Agreement. The Client hereby acknowledges that other than the express written warranties given or contained in this Agreement and/or given by VINx2 on the initial installation date for the SaaS Software, VINx2 makes no guarantees or warranties, either direct or indirect, to the client in regard to the merchantability and fitness for purpose of SaaS Software which results from Customization or Personalization (“Tailored Software”) , nor to VINx2’s rights, title or interests in and to the Tailored Software, or any part thereof, as between the Client and any third party other than the Client, including any warranty against interference or infringement. The Client acknowledges that it will be deemed to have independently reviewed the Tailored Software and is aware of the nature of the Tailored Software, has made its own independent assessment as to merchantability and fitness for purpose of the Tailored Software and its use in the Client’s business
10.2 VINx2 represents and warrants that:
10.2.1 it has the right to grant the License to the Client; and
10.2.2 to the best of its knowledge, the SaaS Software, when used in accordance with this Agreement, will not infringe the Intellectual Property Rights of any third party.
10.2.3 that the Software licensed hereunder shall perform in accordance with the terms set out in this Agreement.
10.2.4 THE WARRANTIES SET FORTH ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED INCLUDING BUT NOT LIMITED TO THOSE CONCERNING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL VINX2 BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY INDIRECT OR INCIDENTAL DAMAGES, EXCEPT FOR PROPERTY DAMAGE OR BODILY INJURY
LIMITATION OF LIABILITY.
11.1 ANY LIABILITY OF VINX2 FOR LOSS OR DAMAGE, SUFFERED BY THE CLIENT GROUP IN CONNECTION WITH THIS AGREEMENT IS LIMITED TO AN AMOUNT EQUAL TO THE LICENSE FEE PAID BY THE CLIENT TO VINX2 UNDER THIS AGREEMENT.
11.2 THE LIMITATION SET OUT IN SECTION 11.1 IS AN AGGREGATE LIMIT FOR ALL CLAIMS, WHENEVER MADE.
11.3 VINX2 IS NOT LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE, HOWEVER CAUSED, INCLUDING WHERE CAUSED BY VINX2’ GROSS NEGLIGENCE, OR SUFFERED BY ANY OF THE CLIENT GROUP MEMBER IN CONNECTION WITH THIS AGREEMENT.
11.4 VINX2 IS NOT LIABLE FOR:
11.4.1 ANY LOSS OF REPUTATION OR GOODWILL;
11.4.2 ANY LOSS OF PROFITS;
11.4.3 ANY LOSS OPPORTUNITIES, INCLUDING OPPORTUNITIES TO ENTER INTO OR COMPLETE ARRANGEMENTS WITH THIRD PARTIES;
11.4.4 ANY LOSS OF DATA; OR
11.4.5 ANY LOSS OR DAMAGE IN CONNECTION WITH CLAIMS AGAINST ANY CLIENT GROUP MEMBER BY THIRD PARTIES,
HOWEVER CAUSED, INCLUDING IF CAUSED BY VINX2’ GROSS NEGLIGENCE, OR SUFFERED BY ANY CLIENT GROUP MEMBER OR THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE SOFTWARE BY CLIENT.
12.1 Any notice or other communication including any request, demand, consent or approval, to or by a party to this Agreement:
if to VINx2: VINx2 Winery Software, Inc
<br/ >Address: 548 MARKET ST ST #62071
SAN FRANCISCO CA 94104-5401
Attention: Joshua Abra
if to the Client:
to the address listed in the accepted Quote,
or as specified to the sender by any party by notice;
12.2 must be signed by the sender (if a natural person) or an officer or under the common seal of the sender (if a corporation);
12.3 is regarded as being given by the sender and received by the addressee:
12.3.1 if delivered in person, when delivered to the addressee;
12.3.2 if by US Mail, 3 Business Days from and including the date of postage; or
12.3.3 if by facsimile transmission, whether or not legibly received, when transmitted to the addressee,
but if the delivery or receipt is on a day which is not a Business Day or is after 4.00pm (addressee’s time), it is regarded as received at 9.00am on the following Business Day; and
12.4 can be relied upon by the addressee and the addressee is not liable to any other person for any consequences of that reliance if the addressee believes it to be genuine, correct and authorized by the sender.
12.5 A facsimile transmission is regarded as legible unless the addressee notifies the sender via telephone within 2 hours after transmission is received or regarded as received under Section12.3.3 and informs the sender that it is not legible.
12.6 In this Section 15, a reference to an addressee includes a reference to an addressee’s officers, agents or employees.
Assignment and Novation
13.1 VINx2 may, at any time, assign or cause a novation of its rights and obligations under this Agreement after first notifying the Client.
13.2 The Client must not assign or cause a novation of its rights or obligations under this Agreement without VINx2’ prior written consent, which may be withheld in VINx2’ absolute discretion.
Costs and Expenses
14.1 Unless expressly stated otherwise, each party must do anything which it is obliged to do under this Agreement at its own cost, whether or not it acts at the request of any other party.
14.2 For the avoidance of doubt, each party must pay its own legal costs and expenses in respect of the negotiation, preparation and execution of this Agreement.
Governing Law and Jurisdiction
15.1 This Agreement and the transactions contemplated hereunder shall be governed and construed in accordance with the laws of the State of California.
15.2 The parties hereby consent and submit to the exclusive jurisdiction of the appropriate state or federal court serving San Francisco, California, as to any dispute or controversy arising either directly or indirectly, under or in connection with this Agreement.
15.3 Each party waives any right it has to object to an action being brought in those courts as set out in Section 15.2, to claim that the action has been brought in an inconvenient forum, or to claim that those courts do not have jurisdiction.
This Agreement may be signed in any number of counterparts including execution via selecting the I Agree option from within the VINX2 Software and all those counterparts together make one instrument.
17.1 Setup & Monthly Fees are payable to VINx2 Winery Software, Inc., 548 Market St #62071, San Francisco, CA 94104
17.2 Monthly fee billing starts one (1) month from the quote acceptance date.
17.3 VINx2 Subscription is for a minimum of 12 (twelve) consecutive months.
17.4 Following minimum subscription term one (1) months’ notice may be provided to end the subscription.
17.5 Subscription fees are reviewed and indexed based on CPI every two years