Six88 Solutions, Inc. dba ShipCompliant
Last revised 6/6/2011
This Services Agreement (“Agreement”) is made between Six88 Solutions, Inc. d/b/a ShipCompliant (“Six88”) and any entity or organization (the “Client”) that has entered into a copy of this Agreement with Six88 or entered into an order form (whether in physical, online, electronic, or any other form) with Six88 referencing this Agreement (any such order, an "Order"). This Agreement will become effective as of the earlier of the date (the "Effective Date") that Six88 first enters into an Order with Client or Client is first provided with access to or use of any portion of the Services. All Orders will be included in and are hereby made a part of this Agreement. In the case of any conflict between the terms of any of the documents that comprise this Agreement, the terms of this Agreement below will take precedence over the terms of each Order referencing this Agreement. Six88 is willing to provide Client with access to and use of the Six88 ShipCompliant™ Portal services as an online service related to the shipment or distribution of alcoholic beverages (the "Services") solely under the terms of this Agreement.
1. SERVICES. Subject to the terms and conditions of this Agreement, Six88 hereby agrees to provide Client with the right to access and use the Services during the term of this Agreement solely: (i) for Client’s own internal use in connection with Client’s shipment or distribution of alcoholic beverages by or on behalf of Client; and (ii) as hosted by Six88 through its website and through user accounts established by Six88 for Client’s use of the Services in accordance with Six88’s then-current and applicable access and use policies. Client understands that Six88 may from time to time update, change or revise the Services and that such updates are deemed “Services” for all purposes hereunder. Client may, subject to the terms and conditions of this Agreement, designate an unlimited number of its employees, accountants compliance advisors, designees, agents, and contractors (collectively, the "Users") to have authorized access to review Client’s compliance data related through the Services, provided that any such Users agree to and abide by the terms and conditions of this Agreement and that Client remains at all times responsible for the acts and omissions of such Users as if those act and omissions were those of Client.
2. RESTRICTIONS. Client must not access, use or copy the Services, in whole or in part, except as expressly provided in this Agreement. Client must not modify, reproduce, create derivative works of, distribute, sell, resell, lend, loan, lease, license, sublicense or transfer Client’s rights to the Services, any portions thereof, or any software used to provide the Services. Client must not reverse engineer, disassemble, decompile, or translate the Services, or otherwise attempt to derive the source code of or any trade secrets embodied in the Services, or authorize any third party to do any of the foregoing, except to the extent the restriction of any of the foregoing is prohibited by applicable law. The Services contain or may contain trade secrets, trademarks, patents, and copyrights owned by Six88, and Client will maintain the Services (and all passwords or user IDs used to access and use the Services) in strict confidence. Client must not allow any access to or use of the Services by anyone other than Client’s Users, and any such use must be consistent with the terms, conditions and restrictions set forth in this Agreement. Any attempt to transfer any of the rights, duties or obligations hereunder (including, without limitation, by disclosing user IDs or passwords or otherwise allowing unauthorized use of the Services by third parties) not in accordance with the foregoing is null and void and without any force or effect.
4. FEES AND PAYMENT. The Fees for the Services ("Fees") are as set forth in the applicable Order, and billing for all Fees will begin on the Effective Date. Client must pay for all Fees incurred using Client’s accounts, however incurred, and no refunds will be provided. If Six88 requires use of collection agencies, attorneys, or courts of law for collection on Client’s account, Client will be responsible for those expenses. Client will be responsible for all use, sales, and other taxes imposed on the licenses or services provided hereunder. Client may elect to pay for the Services using monthly ACH withdrawal using direct payment information that Client will submit to Six88 in connection with the registration for the Services, and by doing so, Client agrees to have the Fees charged to the account each month and authorizes Six88 to automatically submit such charges. If Client’s payment is declined for any reason by Client’s bank, additional attempts may be made to process your payment. If a declined payment is not resolved by the end of the following month, Client’s account (and all access to Client’s account) may be suspended or terminated by Six88. Client authorizes Six88 to bill the account for all outstanding unpaid balances upon termination of this Agreement. Client may elect to pay for the Services by credit card either bi-annually or annually going forward, and by doing so Client authorizes Six88 to charge the applicable Fees to the credit card account at the beginning of the applicable period. If a payment is not resolved by the end of the following month, Client’s account may be suspended or terminated by Six88.
5. TERM AND TERMINATION. This Agreement will begin upon the Effective Date. Unless earlier terminated as set forth below, the term of this Agreement will continue for an initial term of 1 year from the Effective Date, provided that the term will thereafter automatically renew for additional successive 1 year renewal terms unless either party provides the other party with notice of its intent not to renew the term of this Agreement at least 90 day prior to the end of the then-current initial term or renewal term. This Agreement may be terminated by Six88: (1) immediately upon notice to Client from Six88 following a breach by Client of this Agreement; or (2) at any time following the first anniversary of the Effective Date of this Agreement, upon 90 days from notice to Client from Six88 (such termination for any reason or no reason). This Agreement may be terminated by Client for any reason or no reason with written notice to Six88 from Client and effective the first day of the first calendar month after delivery of such notice. In addition, this Agreement may be terminated as set forth in Sections 4 and 10.1. Upon termination or expiration of this Agreement for any reason, the license set forth in Section 1 will terminate and Client must immediately cease all use of the Services, either return or destroy (at Six88’s direction) the Services or portions thereof in Client’s possession and all passwords and user IDs used to access the Services and all other information related thereto. Upon termination, Six88 will provide all compliance data of Client in Six88’s possession back to Client in an electronic format and may delete all Client’s records from its systems. Sections 2 through 12 will survive any expiration or termination of this Agreement.
7. OWNERSHIP. The Services (and all software used to provide the Services) are licensed, not sold, to Client for use only under the terms of this Agreement, and Six88 reserves all rights not expressly granted to Client. Under no circumstances will Client be deemed to receive title to or ownership of any portion of the Services, or any modifications or derivative works thereof, or any intellectual property rights thereto (including, without limitation, copyrights, patents and trade secrets incorporated or embodied therein), title to and ownership of which at all times will remain vested exclusively in Six88.
8. WINE DIRECT SHIPPING AND WINE DISTRIBUTION INFORMATION. Six88 uses commercially reasonable efforts to maintain and verify that the Services are accurate and current with respect to information provided about the shipment or distribution of alcoholic beverages. However, Client is solely and entirely responsible for Client’s compliance with, and will defend, indemnify and hold harmless Six88 from and against any claims arising from any actual or alleged violation by Client of, all international, federal, state and local treaties, laws, regulations and ordinances regarding Client’s business and products (including, without limitation, with respect to the shipment of wine or other alcoholic beverages and the payment of all sales, use, value added, licensing and other taxes and charges that may be applicable to Client’s operations). Without limiting the foregoing, (a) Client must review its business and financial records and practices for indications of errors prior to using such information for any purpose; (b) Client must review its shipping decisions, compliance status and reports for errors prior to using such information for any purpose; and (c) laws and regulations change frequently and their application can vary widely based upon the specific facts and circumstances involved, and Client acknowledges Client’s responsibility to consult with Client’s own professional compliance advisors concerning specific circumstances.
9. WARRANTY AND DISCLAIMER. Six88 represents and warrants to Client that Six88 uses commercially reasonable efforts to maintain and verify that the Services are accurate and current with respect to information provided about the shipment or distribution of alcoholic beverages. SUBJECT TO THE FOREGOING EXPRESS WARRANTY, THE SERVICES ARE PROVIDED TO CLIENT STRICTLY “AS IS” AND SIX88 AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ANY SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, ACCURACY OF RESULTS OR INFORMATION, OR UNINTERRUPTED USE, WHETHER EXPRESS, IMPLIED OR STATUTORY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SIX88, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the disclaimers, limitations and exclusions contained herein may not apply to you. To the extent that Six88 may not, as a matter of applicable law, disclaim any warranty or limit or exclude any liability, the scope and duration of such warranty and the extent of Six88’s liability shall be the minimum permitted under such applicable law.
10. INDEMNITY AND LIMITATIONS OF LIABILITY.
10.1 Notwithstanding anything herein to the contrary, Six88 will, at its expense, defend, indemnify and hold Client harmless against any expenses, liabilities and costs, including reasonable attorneys’ fees, arising in connection with any claims brought against Client by a third party to the extent arising from an assertion that the Services or any part thereof infringes any United States copyright, trade secret or trademark right, and Six88 will indemnify Client against all costs, damages and reasonable attorneys' fees that a court finally awards as a result of such claim. The foregoing obligation of indemnification is conditioned up Client providing Six88 notice of any such claim within ten (10) days after Client receives written notice thereof; Client providing Six88 sole control over the defense and settlement of such claim; and the Client providing reasonable assistance (at Six88’s expense) in the defense and settlement of such claim. In the event that Client is, or Six88 reasonably believes Client may be, enjoined from using the Services, Six88, at Six88’s option and expense, may procure the right for Client to continue using the Services or replace or to modify the Services so that they becomes non-infringing, or provide Client a refund of all pre-paid amounts applicable to such Services and terminate this Agreement with respect to such Services.
10.2 REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, EVEN IF SIX88 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE, IN NO EVENT WILL SIX88, ITS EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS OR AFFILIATES BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR (A) ANY LOST PROFITS, LOST DATA, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES OR ANY DATA SUPPLIED THEREWITH, OR (B) ANY AMOUNTS IN EXCESS OF THE TOTAL AMOUNT RECEIVED BY SIX88 FROM CLIENT FOR USE OF THE SERVICES. Each party expressly acknowledges and agrees that the foregoing limitations of liability and allocation of risk reflect part of the bargained-for exchange of the parties with respect to this Agreement and the Services.
11. REFERENCE. Unless withdrawn upon written request, Client allows Six88 to publicize its relationship with Six88.
12. GENERAL. This Agreement will be governed by the laws of the State of Colorado, without regard to or application of conflicts of law rules or principles. The parties explicitly disclaim the application of the United Nations Convention on the Sale of Goods. Any action or lawsuit related to this Agreement must be brought exclusively in either the Federal or State Courts for the City and County of Boulder, Colorado, and each party hereby irrevocably submits and waives any objection to the exclusive jurisdiction and forum of such courts. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. The failure of either party to require performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter, nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Neither this Agreement nor any rights or obligations of Client hereunder may be assigned by Client (in whole or in part and including by sale, merger or operation of law) without the prior written approval of Six88. Any assignment in derogation of the foregoing will be null and void. Six88 may assign this Agreement to any party that assumes Six88’s obligations hereunder. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. This Agreement is the complete and exclusive statement of the agreement between the parties, and this Agreement supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. Six88 reserves the right to amend or modify this Agreement at any time and from time to time by providing notice to Client (including notice through the Services). Any amendment or modification will be effective as to Client’s continued use of the Services 30 days following such notice. Client’s continued use of the Services or submission of a subsequent Order shall serve as Client’s agreement to any such amendment or modification. Except as expressly set forth herein, this Agreement will not be modified except by a subsequently dated written amendment or exhibit signed by both parties by their duly authorized representatives. This Agreement may be executed in multiple counterparts (including via facsimile or electronic method approved by Six88), each of which will be deemed an original and all of which will constitute one and the same instrument. Photocopies, facsimiles and other electronic copies of original signatures in a form approved by Six88 will have the same force and effect as original signatures.