This Subscription and License (this “Agreement”) is made as of the 5/1/2022 (the “Effective Date”), by and between Cobalt Payments Inc., a Connecticut company with offices located at 2075 Silas Deane Highway, Suite 2C, Rocky Hill, CT 06067 (“Cobalt”), and (“Customer”). In this Agreement, Cobalt and Customer are referred to collectively as the “Parties” or individually as a “Party.”
WHEREAS, Cobalt has collected and provides access to certain data that may include, for example and not by way of limitation, Customer’s retail customers’ sales data, point of sale data and wholesale ordering data, as well as certain digital product information, producer, vintage, packaging, pricing and distributor information (“Market Data”), which is provided by or collected through the use the Bevly Website and the Cobalt Connect Application (collectively the “Cobalt Services”);
NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions hereinafter provided, Customer and Cobalt hereby agree as follows:
1. LICENSE GRANT.
Subject to the terms and conditions of this Agreement, the Terms and Customer’s compliance with its obligations hereunder and the Terms, Cobalt hereby grants to Customer a worldwide, nonexclusive, non- transferable, non-sublicensable, nonassignable license during the Term to access and use the Cobalt Services solely for Customer’s own business purposes. Customer may not use the Cobalt Services except pursuant to the limited rights expressly granted herein, and Cobalt reserves all rights not expressly granted herein. Customer hereby acknowledges and agrees that it will use the Bevly Website in accordance with all applicable laws, rules and regulations. Additionally, Cobalt will make available Purchase Order Management (POM) for use by Customer to create purchase orders that can be forwarded electronically to the wholesaler’s warehouse. The use of POM and the Market Data will be provided only if Customer has an active subscription and is in good standing with Cobalt. Monthly Subscription for Bevly will be payable in advance.
Customer may not share or republish any of Market Data without the expressed written consent of Cobalt. Except with the expressed written consent of Cobalt, Market Data may not be used, copied, or distributed to any other location even if Customer owns such other location. This restriction includes utilizing the Market Data on any website Customer may own or operate or producing a hard copy paper document to be distributed outside of the store.
2. TERM AND TERMINATION.
2.1 Initial Term. The Initial Term shall be for a period commencing two (2) years from the Effective Date. Customer may cancel this Agreement at any time but will not receive any refund of Fees unless the cancellation occurs within the fifteen day period after the Effective Date.
2.2 Renewal Term. As set forth in Section 3 (SPECIAL PROMOTION), Customer may renew this Agreement for an Expanded Renewal Term by providing the notice required in Section 3. If Customer does not provide notice by the Renewal Notice Date, Customer may renew this Agreement for an Expanded Renewal Term without the benefit of the waiver of the Fees set forth in Section 3. If Customer does not elect to renew this Agreement for an Expanded Renewal Term will renew automatically on a month-to-month basis at the rates then in effect at the time of renewal.
2.3 Early Termination for Cause. Cobalt may terminate this Agreement at any time upon the giving of written notice in the event that Customer party fails to discharge any material obligation or remedy any material default under this Agreement for a period continuing more than 30 days after Cobalt gives Customer written notice specifying such failure or default.
2.4 Other Consequences of Termination. Upon the expiration or termination of this Agreement for any reason, (i) all fees and reimbursable expenses due during the term of this Agreement shall be due and payable immediately by Customer to Cobalt; and (ii) Customer shall immediately cease use of all the Services. Customer may retain Market Data for audit and regulatory purposes, but shall cease any further use of Market Data.
2.5 Survival of Terms. The provisions of Sections 2 (Term and Termination), 4 (Fees), 5 (Confidentiality), 6 (Arbitration) and 7 (General) shall survive termination of this Agreement for any reason.
3. SPECIAL PROMOTION.
In order to receive the special pricing offer set forth in this Section 3, Customer agrees that at all time during the Initial Term and the Expanded Renewal Term of this Agreement, Customer shall:
a) Commit to an initial term of two years commencing on the Effective Date (the “Initial Term”). Customer, at is option, may renew this Agreement for an additional two year term (“the Expanded Renewal Term”) if Customer provides written notice of its intent to renew on or before the first anniversary of the Effective Date (“the Renewal Notice Date”);
[b) Purchase at least one (1) Clover Point of Sales (“POS”) device from Cobalt;
c) Purchase one (1) Bevly license subscription per approved merchant location; and
d) Process all credit card transactions through a Clover POS.
During the Initial Term and the Expanded Renewal Term, Cobalt shall waive the fees if Customer meets and continues to meet the commitments set forth in this Section 3. If Customer does not provide written notice by the Renewal Notice Date, Customer may renew this Agreement for an Expanded Renewal Term without the benefit of the reduction in Fees set forth in this Section 3. If Customer does not provide notice of its election to renew this Agreement for an Expanded Renewal Term, this Agreement will renew automatically on a month-to-month basis at the rates then in effect at the time of renewal.
4.1 Except as provided in Section 3 (SPECIAL PROMOTION), the Bevly software application is made available to Customer through a monthly subscription, which must be paid in advance to access and use the Application. Customer shall pay the Cobalt Service Fees (“Fees”) set forth in Attachment A. The fees do not include any taxes or duties of any kind, and you will be solely responsible for all such taxes. All fees are quoted in and payable in U.S. dollars. Company reserves the right to suspend Customer’s access to and use of the Cobalt Services if Customer fails to pay any undisputed amount owed on or before its due date. In the event that Customer would like any additional Cobalt t Services, such additional services will be set forth in a mutually agreed change order, with the cost of such additional services to be mutually agreed by the parties.
4.2 If Customer during cancels this Agreement under Section 2.1 before the expiration of the Initial Term or Cobalt terminates this Agreement under Section 2.3, Cobalt will charge Customer an early termination fee in an amount equal to the monthly subscription fee that would have been charged during the entirety of the Initial Term before the application of any discounts or special promotions. Additionally, Customer must return in good condition the Clover Point-of-Sales equipment provided by Cobalt within (15) days from the cancellation notification otherwise the Customer will be ACH debited the full retail amount of the equipment.
4.3 Customer agrees to pay the Fees due under this Agreement via automatic payment. Past due invoices are subject to a service charge of the lesser of 1½ percent per month or the maximum rate allowed by law on the outstanding balance., in Cobalt’s discretion. In addition, Customer agrees to pay any attorney’s fees and/or collection costs incurred by Cobalt in collecting any past due amounts from Customer.
4.4 Customer shall reimburse Cobalt for all reasonable expenses approved in advance by Customer and incurred by Cobalt in the performance of all Cobalt Services hereunder within thirty (30) days after Customer’s receipt of expense statements.
5.1 Confidentiality. “Confidential Information” means information that a reasonable business person would consider private, sensitive or proprietary and includes, but shall not be limited to, this Agreement or its terms, business or marketing plans, investment data, the Services and trade secrets. For the avoidance of doubt, Market Data is the Confidential Information of Cobalt. Each Party (“Recipient”) shall hold in confidence and not disclose Confidential Information received from the other party and shall hold Confidential Information in the same manner and to the same extent as it holds in confidence its own Confidential Information. Recipient may disclose Confidential Information to its employees, agents, or contractors (“Authorized Representatives”) who are required to have the information in order to carry out Recipient’s obligations under this Agreement and are bound by a duty or obligations of confidentiality substantially similar to the terms of this Section 5. In the event of a breach by either Party of its obligations under this paragraph (including, without limitation, unauthorized disclosure of Market Data by Customer), the other Party may suffer irreparable harm and its remedies at law will be inadequate and shall have, in addition to any other remedies it may have, the right to obtain injunctive relief to restrain any breach or threatened breach thereof. Confidential Information shall not include any information that is or comes into the public domain (other than through the fault of the Recipient) or is required by law to be disclosed by Recipient by court order or government agency.
5.2 Use of Data by Cobalt. Notwithstanding the foregoing, Cobalt may aggregate Customer’s data with other data collected by Cobalt and distribute such data, or analysis of such data, to third parties, provided such distributed data does not identify Customer.
5.3 Intellectual Property. Customer acknowledges and agrees that Cobalt has exclusive and valuable property rights in and to Cobalt Data, that Cobalt exerts significant creative effort in compiling, analyzing, enriching and creating Cobalt Data, that Cobalt Data constitutes valuable confidential information, trade secrets and/or proprietary rights of Cobalt, not within the public domain, that such Cobalt Data shall remain valuable confidential information, trade secrets and/or proprietary rights of Cobalt and that, but for this Agreement, Customer would have no rights or access to such Cobalt Data. Furthermore, Cobalt Data and all of the content is protected by copyright pursuant to the law of the United States and other copyright laws. Customer agrees to maintain all copyright, trademark and other notices contained in Cobalt Data or required by this Agreement. Any other use by Customer of Cobalt Data not expressly permitted by this Agreement is strictly prohibited.
5.4 Without limiting the generality of subsection (a) above, Customer may not itself or enable others to use Cobalt Data to compete with Cobalt.
5.5 Ownership of all software or data created by Cobalt shall remain with Cobalt, notwithstanding any suggestions, ideas or other contributions of Customer.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding, non-appealable arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules, including the Emergency Interim Relief Procedures and using the Expedited Procedures, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration proceeding shall take place in Hartford, Connecticut. There shall be one arbitrator, selected by mutual agreement of the parties, or, if the parties cannot agree upon an arbitrator within 10 days, selected by the Director of the New York City office of the AAA. Either party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either party also may, without waiving any remedy under this Agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending selection of the arbitrator. Any dispute regarding discovery, or the relevance or scope thereof, shall be determined by the arbitrator, which determination shall be conclusive. All discovery shall be completed within 60 days following the appointment of the arbitrator. The arbitrator may award any remedy he or she deems necessary, including monetary, equitable or injunctive.
7.1 Assignment. Customer shall not assign, delegate, or otherwise transfer its rights or obligations under this Agreement, voluntarily or involuntarily, whether by merger, consolidation, dissolution, operation of law, or any other manner, without the prior written consent of Cobalt, which consent shall not be unreasonably withheld. Any assignment, delegation or transfer which is made by Customer without such consent given in writing will be null and void. Without securing the consent of Customer, Cobalt may assign its rights, or delegate its duties, or both, in whole or in part, to any present or future Affiliate of Cobalt; or to any third party that assumes the operation of or otherwise acquires any substantial portion of the business of Cobalt affected by this Agreement.
7.2 Notice. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given by delivery in person or by an internationally recognized overnight courier. Notices to Cobalt shall be sent to the addresses listed on the first page of this Agreement. Either of the Parties may designate in writing such new or other addresses to which such notice shall thereafter be sent. Notice shall be deemed given upon receipt.
7.3 Entire Agreement. This Agreement, including the Terms, constitutes the entire agreement between Cobalt and Customer with respect to the subject matter of this Agreement and supersedes all prior representations, proposals, discussions and communications, whether oral or in writing. Except for the Terms, this Agreement may only be amended by a written agreement signed by both Parties. Cobalt may modify the Terms as provided for in the Terms.
7.4 Governing Law; Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Connecticut without giving effect to the provisions thereof relating to conflict of laws. Other than as provided in Section 6 (Arbitration), exclusive jurisdiction and venue for any action brought pursuant to this Agreement shall be in federal or state court located in the State of Connecticut. The parties hereby consent to personal jurisdiction in the federal and state courts in Connecticut and waive any right to a change of venue. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any enactment of the Uniform Computer Information Transactions Act shall apply to this Agreement. In any action or proceeding to enforce or interpret this Agreement, the prevailing Party will be entitled to recover from the other Party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
7.5 Neither Party will be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused by an event (including strike, lockout, labor dispute, power failure, equipment failure, system blackouts, inability to obtain materials, fire, flood, terrorism, pestilence, epidemics, pandemics, earthquake, elements of nature or acts of God, riots, or civil disorders) beyond the reasonable control of such party, provided such default or delay could not have been prevented by reasonable precautions (including the implementation of, and adherence to, a prudent disaster recovery and business continuity plan(“Force Majeure”). In the event of any such Force Majeure event each nonperforming Party shall endeavor in good faith to circumvent the delay or default through the use of alternate sources, workaround plans or other means, as may be reasonably and commercially practicable under the circumstances.
7.6 Independent Contractors. The Parties hereto are and shall remain independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture or agency relationship between the Parties. Neither Party shall have the right to obligate or bind the other Party in any manner to any third party.
7.7 Marketing. Cobalt may list Customer as a user of its Services in its marketing materials.
7.8 Authority to Contract. Each Party represents that it has the full power and authority to enter into this Agreement and to convey the rights herein conveyed. Each party further represents that it has not entered into nor will it enter into any agreements that would conflict with its obligations hereunder or would render it incapable of satisfactorily performing hereunder.
7.9 Order of Precedence. Should the Terms be in conflict with the terms of the Agreement, the terms of this Agreement shall govern.
7.10 Severability. Should any provision of this Agreement be held to be void or unenforceable, the remaining provisions shall remain in full force and effect and are to be read and construed as if the void or unenforceable provisions were originally deleted.
7.11 Headings. The headings of this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
7.12 No Waiver. No provision of this Agreement may be waived, amended or otherwise modified except by a written agreement signed by each party hereto. The waiver by either party of the breach of any provision hereof shall not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.
7.13 Counterparts. This Agreement may be executed in two counterparts, each of which shall be deemed an original, but both of which taken together shall constitute one and the same instrument. Electronic facsimiles or scans of this Agreement, including signatures, shall be treated as originals.