Vine Global owns LandedCost.io and its collective Website and API Services. Vine Global's legal name is "Vine Global Solutions, Inc." and the registered address is 6915 South 900 East Midvale, Utah 84047.
1.1 Subject to the terms and conditions of the Agreement (including, without limitation, these Terms and Conditions and each duly executed Order Form), Vine Global hereby grants Customer access to the LandedCost.io Services, subject to the average API request limit ("Average Request Limit") and the maximum number of API requests limit ("Maximum Request Limit") set forth on an Order Form that reference these Terms and Conditions (each an "Order Form"). Customer’s compliance with the Average Request Limit and Maximum Request Limit will be as reasonably determined by Vine Global. Vine Global will undertake commercially reasonable efforts to make the LandedCost.io Services are available in accordance with the SLA decribed on https://www.landedcost.io/documentation/service-level-agreement. The LandedCost.io Services are subject to modification (including, without limitation, to provide new features, implement new protocols, maintain compatibility with emerging standards or comply with regulatory requirements) from time to time at Vine Global's discretion, provided that such modifications do not result in a material degradation of the LandedCost.io Services.
2.1 Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the LandedCost.io Services or any software, documentation or data related to the Services ("Software") (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own use for the benefit of End Users; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations.
2.2 Customer will designate an employee who will be responsible for all administrative matters relating to this Agreement ("Primary Contact"), including designating Customer employees who are authorized to access the LandedCost.io Services. Customer may change the individual designated as Primary Contact at any time upon notice to Vine Global. Customer will also cooperate with Vine Global in establishing a password and other procedures for verifying that only the Primary Contact of Customer has access to any administrative functions of the LandedCost.io Services. Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer's knowledge or consent. Customer acknowledges and agrees that the Services operate on or with or using services operated or provided by third parties ("Third Party Services"). Vine Global is not responsible for the operation of any Third Party Services nor the availability or operation of the LandedCost.io Services to the extent such availability and operation is dependent upon Third Party Services. Vine Global does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party's terms and conditions.
3.1 Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's technology or business that has been identified as confidential information of such party (hereinafter referred to as "Confidential Information" of the Disclosing Party).
3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Confidential Information, (i) to give access to such Confidential Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by a third party, or (d) was independently developed of such Confidential Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Vine Global and the LandedCost.io Service may collect and use data hereunder relating to the performance or use of the Services, may use such data to improve and further develop the Services, and may report on the aggregate response rate and other aggregate measures of the Services' performance.
3.3 Customer acknowledges that Vine Global does not wish to receive any Confidential Information from Customer that is not necessary for LandedCost.io Service to perform its obligations under this Agreement.
3.4 Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors.
4.1 Except as expressly set forth herein, Vine Global alone (and its licensors, where applicable) will retain all intellectual property rights relating to the LandedCost.io Services, Software, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the LandedCost.io Service and/or the Software, which are hereby assigned to Vine Global. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly authorized under this Agreement. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the LandedCost.io Service or Software, or any intellectual property rights.
4.2 Any confidential information provided by the Customer to Vine Global ("Content") shall be used in connection with the LandedCost.io Services. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all such Content and the intellectual property rights with respect to that Content. If Vine Global receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a "Claim"), Vine Global may (but is not required to) suspend activity hereunder with respect to that Content
4.3 Vine Global shall hold Customer harmless from liability to unaffiliated third parties resulting from infringement by the LandedCost.io Service of any United States patent or any copyright or misappropriation of any trade secret, provided LandedCost.io is promptly notified of any and all threats, claims and proceedings related thereto, given reasonable assistance (at Vine Global's expense) and the opportunity to assume sole control over defense and any settlement; Vine Global will not be responsible for any settlement it does not expressly approve in writing. The foregoing obligations do not apply with respect to portions or components of the LandedCost.io Services (i) not created by Vine Global, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified after delivery by Vine Global, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer's use of is not strictly in accordance with this Agreement and all related documentation. Customer will indemnify Vine Global from all damages, costs, settlements, attorneys' fees and expenses related to any claim of infringement or misappropriation excluded from Vine Global's indemnity obligation by the preceding sentence or from Customer's use of LandedCost.io Services.
5.1 Customer will pay Vine Global the applicable fees as set forth on the Order Form (the "Fees"). If Customer use of the LandedCost.io Services exceeds the Query Volume Level set forth on the Order Form, and LandedCost.io provides such Service, Vine Global reserves the right to charge additional fees. To the extent applicable, Customer will pay Vine Global for additional services, such as integration fees or other consulting fees. All payments will be made in accordance with the Payment Schedule and the Method of Payment. If not otherwise specified, payments will be due within thirty (30) days of invoice.
5.2 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys' fees. All Fees are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Vine Global's net income) unless Customer has provided Vine Global with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.
6.1 Subject to earlier termination as provided below, this Service Agreement is for the Service Term as specified in the Order Form.
6.2 In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement by giving thirty (30) days prior notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty (30) day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business.
6.3 All sections of this Service Agreement, which by their nature should survive termination, will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
6.4 Upon a termination for any reason other than Customer's breach of this Agreement, and provided that Customer remains in full compliance with the terms of the Agreement, Customer may invoke a wind-down period, in which the parties' rights and obligations (including without limitation the payment obligations and Fees in effect at the time of termination) shall survive during the 90 period following such termination (the "Wind-Down Period"). Customer may elect to invoke the Wind-down Period by giving Vine Global notice any time prior to the date of such termination. Upon expiration of the Wind-Down Period, all further rights and obligations of the parties under this Agreement shall terminate.
Vine Global represents and warrants that it will not knowingly include, in any Software released to the public and made accessible to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, Vine Global-LandedCost.io fails to comply with the warranty in this Section, Customer may promptly notify Vine Global in writing of any such noncompliance. Vine Global will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
THE SERVICES, SOFTWARE AND ANYTHING MADE AVAILABLE OR PROVIDED BY VINE GLOBAL IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. VINE GLOBAL (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
IN NO EVENT WILL VINE GLOBAL-LANDEDCOST.IO (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF VINE GLOBAL HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF VINE GLOBAL (INCLUDING ANY OF ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS), WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (I) FIVE THOUSAND DOLLARS, OR (II) THE FEES PAID TO VINE GLOBAL HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the LandedCost.io Services or any software or anything related thereto or any direct product thereof (collectively "Controlled Subject Matter"), in violation of any restrictions, laws or regulations of the United States or any other foreign agency or authority. As defined in FAR section 2.101, any software and documentation provided by Vine Global are "commercial items" and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation."" Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Customer agrees that Vine Global may include Customer's name and brand features (including logos) in a list of LandedCost.io customers, online or in promotional materials, and Vine Global may verbally reference Customer as a customer of the LandedCost.io Services unless Customer notifies Vine Global that Vine Global must obtain Customer's permission with respect to specific uses identified by Customer in such notice. Customer agrees to reasonably participate in press announcements, case studies, trade shows, or other forms reasonably requested by Vine Global. Customer further acknowledges and agrees that Query results delivered by the Services may include (in Vine Global's discretion) attribution (such as "Powered by Vine Global"), and Customer agrees that it shall not remove or obscure such attribution. 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 Customer except with Vine Global's prior written consent. Any purported, assignment, transfer, or sublicense without such consent is void. Vine Global may transfer and assign any of its rights and obligations under this Agreement upon notice to Customer. Both parties agree that 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 a 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 Customer does not have any authority of any kind to bind Vine Global 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; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Vine Global will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of Utah, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in Salt Lake City, Utah, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction.