These Terms and Conditions set out the provisions pursuant to which Ten Thousand Coffees will provide the services set out on the Cover Sheet to the Customer identified on the Cover Sheet.
1. DEFINITIONS AND INTERPRETATION
1.1 The following terms shall have the following meanings:
"Agreement" means the Cover Sheet and these Terms and Conditions (as updated from time to time)together with any schedules attached hereto or referenced on the Cover Sheet or any documentation incorporated by reference;
"Cover Sheet" means the order documentation which sets out details of services and other key terms relating to Customer’s engagement of Ten Thousand Coffees on the terms hereof;
"Confidential Information" has the meaning given in Section 7;
"Content" means any information, text, graphics, data or other materials uploaded or manually inputted to the Hub by Customer or its users;
"Deliverable(s)" means any software, documentation and/or other materials prepared by Ten Thousand Coffees for Customer as part of the Services including development of a Hub;
"Hub" means a sub-site created within the Website and branded in accordance with Customer’s requirements;
"Personal Information" means information which identifies or can be used to identify a living individual;
"Services" means the services to be provided by Ten Thousand Coffees to Customer as described on the Cover Sheet;
"SOW" or "Statement of Work" means a work order executed by the parties;
"Website" means https//www.tenthousandcoffees.com or such other URL as Ten Thousand Coffees may provide the Services from time to time using Ten Thousand Coffee’s proprietary platform;
1.2 In this Agreement: (a) words denoting the singular include the plural and vice versa and words denoting any gender include all genders; (b) all usage of the word "including" or the phrase "e.g.," in this Agreement shall mean "including, without limitation," throughout this Agreement; (c) all dollar amounts are expressed in Canadian dollars unless expressly provided otherwise on the Cover Sheet.
1.3 Headings and the division of this Agreement into articles and sections are for convenience of reference only and shall not affect the interpretation hereof. If there is any conflict or inconsistency between the terms in the various parts of this Agreement, the sections in the Cover Sheet will take precedence, followed by these Terms and Conditions.
2. SERVICE TERMS
2.1 Service Provision. Ten Thousand Coffees will provide the services indicated on the Cover Sheet in accordance with any timeframes and requirements set out therein or in a separately agreed statement of work which is incorporated by reference into the Cover Sheet. Ten Thousand Coffees may, in its sole discretion, to determine the method and means for performing the Services and developing the Deliverables.
2.3 Service Use Guidelines. Customer shall use the Services solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the Service available to any third party. Customer shall not: (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Hub, the Website or other technology of Ten Thousand Coffees except to the extent expressly agreed upon in writing by Customer or to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other use restrictions that are built into the Services; (c) remove any proprietary notices, labels, or marks from the Services; or (d) access the Service in order to (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of the Services.
2.5 Customer Obligations. Customer acknowledges and agrees that the performance of the Services and development of Deliverables is dependent on cooperation from Customer. Accordingly, in addition to any specific responsibilities set out on the Cover Sheet or a statement of work, Customer shall: (i) provide the appropriate and necessary resources, and timely and accurate information and documentation, as reasonably required by Ten Thousand Coffees, to allow Ten Thousand Coffees to perform the Services and develop the Deliverables; (ii) carry out reviews and respond to requests for approval and information on a timely basis; and (iii) ensure that Ten Thousand Coffees has available to them personnel familiar with Customer's requirements and with the expertise necessary to permit Ten Thousand Coffees to undertake and complete the Services and Deliverables development. Customer acknowledges that any delay on its part in the performance of its obligations may have an impact on Ten Thousand Coffees' performance of its activities under this Agreement and Ten Thousand Coffees shall not be liable for any delay to the extent caused by Customer’s failure to fulfill any of its obligations or requirements under the Agreement and/or any SOW. If Services are performed on Customer’s premises or if Ten Thousand Coffees needs to attend at Customer’s premises for the development of the Deliverables, Customer shall provide to Ten Thousand Coffees such workspace, computers, equipment and software as is reasonably required by Ten Thousand Coffees for the performance of the Services and the development of the Deliverables. Customer shall designate a project management contact for the purposes of communication with Ten Thousand Coffees. The project management contact shall be the primary point of contact for Customer with Ten Thousand Coffees for matters relating to the provision of Services and development of Deliverables.
3. PAYMENTS TERMS AND TAXES
3.1 Payment Terms. In consideration for the receipt of the Service, Deliverables and the licenses and other consideration granted hereunder, Customer shall pay Ten Thousand Coffees the fees specified on the Cover Sheet. Fees for the Services will be invoiced annually in advance for the upcoming year. Unless otherwise stated, all payments shall be made to Ten Thousand Coffees within thirty (30) calendar days after receipt of the invoice. Ten Thousand Coffees reserves the right to increase monthly service fees on an annual basis. Customer will have the opportunity to renew or opt-out of the annual license fee indicated on the Cover Sheet.
3.2 Invoicing and Payment of Taxes. All charges and fees provided for in this Agreement are exclusive of and do not include any foreign or domestic governmental taxes or charges of any kind imposed by any federal, state, provincial or local government on the transactions contemplated by this Agreement, including without limitation excise, sales, use, property, license, value-added taxes, goods and services, harmonized, franchise, withholding or similar taxes, customs or other import duties or other taxes, tariffs or duties other than taxes that are imposed based on the net income of Customer. Any such taxes that are imposed shall be the sole responsibility of Customer.
3.3 Overdue Payments. Any payment not received from Customer by the due date will accrue late charges at the rate of one percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher, from the date such payment was due until the date paid.
3.4 Suspension of Service. If Customer account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Ten Thousand Coffees reserves the right to suspend the Service provided to Customer, until such amounts are paid in full or terminate the Service and this Agreement.
4. DATA, CONFIDENTIALITY AND PROPRIETARY RIGHTS
Ten Thousand Coffees shall be entitled to provide Confidential Information of Customer to subcontractors that have agreed in writing to confidentiality obligations at least as protective as those contained in this Agreement. Recipient agrees that it will take appropriate steps to protect the Discloser’s Confidential Information from unauthorized disclosure, that it will not disclose such Confidential Information to any third party, and that it will not use such Confidential Information (other than as authorized by this Agreement) without the prior written consent of Discloser. Recipient’s obligations with respect to the Discloser’s Confidential Information shall continue for the shorter of three (3) years from the date of termination or expiration of this Agreement or until such information becomes publicly known other than by breach of this Agreement by Recipient. Disclosure of Confidential Information by Recipient to the extent required pursuant to any law, rule, regulation or court order binding on such Recipient will not constitute a breach of this section, provided that the Recipient has given the Discloser prompt written notice of any requirement or demand for disclosure of Discloser’s Confidential Information.
4.2 Intellectual Property. Ten Thousand Coffees shall own all right, title and interest (including all intellectual property rights) in any Deliverables created by Ten Thousand Coffees pursuant to this Agreement or any SOW unless expressly stated to the contrary in the SOW. Ten Thousand Coffees and/or its licensors shall retain all right, title and interest (including all intellectual property rights) in any materials used by Ten Thousand Coffees in the provision of Services or the development of Deliverables. Subject to payment of the applicable fees, Ten Thousand Coffees grants to Customer a non-exclusive, non-transferable, internal license to use the Deliverables solely in connection with Customer’s permitted use or other permitted exploitation of products and/or network services procured from Ten Thousand Coffees. Customer hereby grants Ten Thousand Coffees a non-exclusive, royalty-free license to access and use Customer’s trademarks, logos and branding solely for the purpose of providing Deliverables and the Services as described in this Agreement and for use in any publicity agreed by Customer with Ten Thousand Coffees. All licenses is this Section 8 shall terminate automatically on the termination of this Agreement. Except as expressly set forth in this Section 8, no other rights are granted whether by implication, estoppel or otherwise.
4.3 Content. As between Ten Thousand Coffees and Customer, Customer exclusively owns and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and all other intellectual property rights therein) in and to the Content. For greater certainty, nothing in this Agreement shall restrict Ten Thousand Coffees’s right to compile and use Data (including use on a worldwide, royalty-free, perpetual basis for market research, case studies and other similar initiatives). For the avoidance of doubt, Customer shall not be named in any market research, case studies or other initiatives which make use of the Data, unless Customer consents to the same, which consent shall not be unreasonably withheld or delayed.
For the purposes of this Section 4.2, the term "Data" means aggregated and statistical data and other information including (but not limited to) data relating to the number of user downloads, page views, return visits, bounce rates and time spent on content. For the avoidance of doubt "Data" does not include Content.
4.4 Non-Exclusive License Granted to Ten Thousand Coffees. For the Term hereof, Customer grants to Ten Thousand Coffees and its subcontractors a non-exclusive, non-transferable right and license to access and use the Content to the extent necessary to perform the Service and deliver the Deliverables as contemplated by this Agreement, provided always that such license will be for such purposes only.
4.5 Suggestions. Ten Thousand Coffees shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual, unrestricted license to use and/or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its users relating to the operation of the Services.
4.6 Deliverables. Customer acknowledges and agrees that ownership of and title to any Deliverables (excluding any Content or Customer branding), including all copyright, trademarks, patents, trade secrets and all other intellectual property rights therein shall be owned exclusively by Ten Thousand Coffees.
5. LIABILITY TERMS AND DISCLAIMERS
5.1 Indemnification by Ten Thousand Coffees. Subject to the terms and conditions of this Agreement, Ten Thousand Coffees shall, at its own expense, defend Customer, its officers, directors, employees, and agents (the “Customer Indemnitees”) in any action, suit or proceeding by a third party alleging that the Service infringes or misappropriates any patent, trademark, trade secret, copyright or any other intellectual property rights of such third party (an “IP Claim”) and shall indemnify and hold the Customer Indemnitees harmless from and against any settlement amounts agreed in writing by Ten Thousand Coffees and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against any of the Customer Indemnitees by a court or tribunal of competent jurisdiction in such IP Claim. As conditions for such defense and indemnification by Ten Thousand Coffees, (i) Customer shall notify Ten Thousand Coffees promptly in writing upon becoming aware of any pending IP Claims; (ii) the Customer Indemnitees shall give Ten Thousand Coffees sole control of the defense and settlement of such IP Claims; (iii) the Customer Indemnitees shall cooperate fully with Ten Thousand Coffees in the defense and/or settlement of such IP Claims; and (iv) the Customer Indemnitees shall not settle any IP Claims without Ten Thousand Coffees’ written consent, or compromise the defense of any such IP Claims or make any admissions in respect thereto.
5.2 Mitigation. If (a) Ten Thousand Coffees becomes aware of an actual or potential IP Claim, or (b) Customer provides Ten Thousand Coffees with notice of an actual or potential IP Claim, Ten Thousand Coffees may (or in the case of an injunction against Customer, shall), at Ten Thousand Coffees’ sole option and determination: (i) procure for Customer the right to continue to use the Service; or (ii) replace or modify the Service with equivalent or better functionality so that Customer’s use is no longer infringing; or (iii) if (i) or (ii) are not commercially reasonable, terminate provision of the Service and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to Ten Thousand Coffees.
5.3 Exclusions. The obligations in Sections 5.1 and 5.2 do not extend to (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Service furnished by Provider with other products, software or services not provided by Ten Thousand Coffees; (ii) any IP Claim related to any materials or data supplied by any of the Customer Indemnitees to Ten Thousand Coffees, or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
5.4 Warranties and Disclaimers. Ten Thousand Coffees warrants that (i) all Services performed under this Agreement will be performed in a workmanlike manner and in accordance with the terms of this Agreement, and (ii) all Deliverables will perform in accordance with the specifications set forth on the Cover Sheet or a statement of work (if applicable). The warranty period for each individual Service and Deliverable provided by Ten Thousand Coffees pursuant to this Agreement shall, in the case of Services, be a period of ninety (90) days from the date of completion of such Service, and in the case of Deliverables, shall be a period of ninety (90) days from the date of completion of such Deliverable. Each party represents and warrants that it has the legal power to enter into this Agreement.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, TEN THOUSAND COFFEES MAKES NO REPRESENTATIONS AND GIVES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE, CUSTOM OF DEALING, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.5 LIMITATION OF LIABILITY. TEN THOUSAND COFFEES’ TOTAL LIABILITY TO CUSTOMER FOR DAMAGES OF ANY KIND, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE UNDER THIS AGREEMENT WILL BE LIMITED TO AN AGGREGATE MAXIMUM OF FEES PAID BY CUSTOMER TO TEN THOUSAND COFFEES IN THE 12 MONTHS PRECEDING A CLAIM. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR ANY OTHER PERSON FOR ANY LOST PROFITS OR SAVINGS, LOST BUSINESS, LOSS OF DATA, ANY TELECOMMUNICATIONS BREAKDOWN, UNAVAILABILITY, DOWNTIME, INTERRUPTION OR DELAY, ANY SUSPENSION OF SERVICE OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH OCCURRENCE OR DAMAGE. THE PARTIES AGREE THAT THE FOREGOING REPRESENTS A FAIR ALLOCATION OF RISK HEREUNDER.
6. TERM AND TERMINATION
6.1 Term of Agreement. This Agreement shall commence on the date indicated on the Cover Sheet shall continue in effect for an initial term of one (1) year. Thereafter, this Agreement shall automatically renew unless either party gives at least 60 days’ notice of non-renewal prior to a new 12 month term starting. Collectively, the initial term and any subsequent renewal terms shall constitute the term.
6.2 Termination by Ten Thousand Coffees. Ten Thousand Coffees may terminate this Agreement, without prejudice to any other remedies available to Ten Thousand Coffees if Customer is in material breach of any of its representations, obligations or responsibilities under this Agreement (including, without limitation, payment) and if such breach continues uncured for a period of fifteen (15) days following Customer’s receipt of written notice thereof from Ten Thousand Coffees. This Agreement will automatically terminate: (a) if Customer experiences financial difficulties (including but not limited to chronic late or failed invoice payments) such that Ten Thousand Coffees can reasonably assume that the Customer can no longer meet its obligations under the Agreement; or (b) one (1) day before Customer becomes bankrupt or insolvent, or a receiving order is made against Customer, or an assignment is made for the benefit of creditors, or an order is made or resolution passed for the winding up of Customer, or Customer takes the benefit of any statute relating to bankrupt or insolvent debtors.
6.3 Termination by Customer. Customer elects to terminate this Agreement prior to a renewal pursuant to Section 6.1, the Hub will be removed from the Ten Thousand Coffees’ platform.
6.4 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 1, 4, 5, 6.4 and 7.
7. GENERAL PROVISIONS
7.1 Non-Solicitation. Customer shall not solicit or hire any employee of Ten Thousand Coffees during the term of this Agreement or for a period of one (1) year from the date of expiration or termination of this Agreement. Such prohibition shall not apply to general employment solicitations not targeted at Ten Thousand Coffees’ employees.
7.2 Notices. All notices, demands or consents required or permitted under this Agreement shall be in writing and delivered to the addresses set forth on the Cover Sheet. Notice shall be considered delivered and effective on the earlier of actual receipt or when: (a) personally delivered; (b) the day following transmission if sent by telex, telegram, electronic mail or facsimile when followed by written confirmation by registered overnight carrier or certified mail; or (c) one (1) day after posting when sent by registered private overnight carrier (e.g., DHL, Federal Express, etc.); or (d) five (5) days after posting when sent by certified mail. Notice shall be sent to the parties at the addresses set forth on the first page of this Agreement or at such other address as shall be specified by either party to the other in writing in accordance with this Section 7.2.
7.3 Independent Contractors. The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner, joint venturer or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other. Any use of the term "partner" or "partnering" or similar terminology (except as used in the immediately preceding sentence of this Section) does not mean or refer to a legal partnership, but instead means or refers to a co-operative business or contractual relationship.
7.4 Assignment. Neither party may assign this Agreement whether voluntarily, by operation of law, or otherwise without the other party’s prior written consent, such consent not to be unreasonably withheld. Notwithstanding the foregoing, Ten Thousand Coffees may freely assign this Agreement to a successor in interest upon a merger, acquisition, reorganization, change of control, or sale of all or virtually all of its assets, and any such assignment shall not require the consent of the Customer.
7.5 No Waiver. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term.
7.6 Severability. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and such provision shall be reformed only to the extent necessary to make it enforceable under such circumstances.
7.7 Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labor problems (other than those involving the employees of the affected party), or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore.
7.8 Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, Canada and the laws of Canada applicable therein. No choice or conflict of laws rules of any jurisdiction shall apply to this Agreement. The provincial and federal courts located in Toronto, Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Notwithstanding the foregoing, each party shall be entitled to seek injunctive or other equitable relief in any jurisdiction with a reasonable connection to the subject matter of this Agreement.
7.9 Export Controls. Customer acknowledges and agrees that the Deliverables may be subject to export and import controls under the regulations of the United States, Canada and other countries, and Customer shall comply with all export and import control regulations of such countries. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.
7.10 Entire Agreement. This Agreement is the entire agreement between Ten Thousand Coffees and Customer in respect to the subject matter hereof, superseding any other agreements or discussions, oral or written, and may not be changed except by a written amendment signed by authorized representatives of each party.
Last updated: November 15, 2018