VendorLink Cycling TERMS AND CONDITIONS
BY CLICKING “ACCEPT”, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THESE TERMS AND CONDITIONS OF USE (“TERMS”) ON BEHALF OF YOUR STORE(S) (COLLECTIVELY, YOUR “STORE”), AND THAT YOU HAVE THE AUTHORITY TO BIND YOUR STORE. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS,
YOU MUST NOT CLICK “ACCEPT”.
1. Software Download and Data Retrieval. You permit G9 Smart Solutions LLC and its affiliates and assigns (“G9”) to: (a) download on the computers where your Store’s point-of-sale software system (“POS”) resides G9’s software (“Software”) that accesses and queries the POS and its database and collects daily transaction, inventory, non-cardholder and other information, including without limitation: transaction date and time, shopper information, Store identification, brand, model, manufacturer’s stock keeping unit or item number (“SKU”), Store item number, POS assigned item number, uniform product code (“UPC”), product department (including all levels if more than one, item description, total price (amount paid by the customers less tax), total cost (the amount the store paid for the item), number of units sold, and inventory on hand (collectively, the “Data”);
(b) transmit the Data and upload it onto G9’s servers and databases via the internet; (c) to allow the Software to transmit the Data over the internet to G9’s servers and allow for a connection between your Store’s POS and G9’s servers; and (d) use the Data in accordance with the license and use restrictions set forth below. If you are providing data to G9 independent of the software, then all applicable provisions of the terms and conditions are in effect.
2. License. Subject to the restrictions and confidentiality provisions set forth in these Terms, you grant G9 a non-exclusive, unlimited, perpetual, irrevocable, royalty-free, fully paid-up, worldwide, sub-licensable, and transferable right and license to transmit, upload, host, cache, route, store, excerpt, analyze, and create algorithms from use, reproduce, process, modify, make derivative works of, commercialize and distribute the Data in any manner, and combine the Data with other data and information. You also permit G9 to announce your Store’s participation in G9’s network and grant G9 the right and license to use your Store name, branding, trademarks and logos in G9’s marketing materials.
3. Definitions. “Identifiable Data” is Data that is identifiable to your Store. “Unidentifiable Data” is Data that is unidentifiable to your Store because the elements that make the Data identifiable (for example: Store name, number or address) have been removed, encrypted, concealed or combined with other data elements to make the Data unidentifiable. A “Permitted Supplier” is a manufacturer, supplier or distributor whose products your Store purchases and sells (“Permitted Supplier Products”). “Enrolled” means that you did not take action to terminate these Terms. “Inventory Data” shall mean the unit quantity on hand of each item at your Store.
4. Permission to Share Identifiable Data with Permitted Supplier. You grant G9 permission to share Identifiable Data with a Permitted Supplier, provided that G9 may only share Identifiable Data that is Permitted Supplier Products to a Permitted Supplier. G9 shall not share Identifiable Data with any other supplier, retailer or any other third party. For clarification purposes, a Permitted Supplier will have access to your Store’s Identifiable Information that is only associated with that Permitted Supplier’s products sold in your Store; a Permitted Supplier will not have access to your Store’s Identifiable Information associated with products of any other suppliers. G9 may use and disclose Unidentifiable Data to any party for any purpose, including without limitation, market share and trend analysis, Store performance metrics, and other purposes, whether standalone or combined with other data and information.
5. Permission to Third-Parties. If your Store uses a POS that either (i) is hosted by a third-party (“Hosted POS Provider”), or (ii) uses a back-up service provided by a third-party that stores an image of the Data on a hosted storage device not within the premise of your Store (“Hosted POS Backup Provider”), you hereby grant the Hosted POS Provider and the Hosted POS Backup Provider permission to (i) transmit to G9 the Data or (ii) G9 to download the Software to computer systems of the Hosted POS Provider or the Hosted POS Backup Provider, as the case may be, and operate on such Data as per Section 4 above. In addition, you hereby permit G9 to share your Data with third-party services that (a) you have a service agreement with which, among other things, authorizes G9 to share your Data with such service provider or (2) accepted terms and conditions of use with a third-party in which you give G9 permission to share your Data with this third-party service provider.
6. Retailer Reports. During the period during which you are Enrolled, G9 may provide you will selected analytical reports of key performance indicators regarding your business that are derived from your Data and selected reports comparing selected performance metrics of your business to those of other retailers, on an anonymous basis (collectively, the “Retailer Reports”).
7. Web Service; Display of Inventory Data. You hereby grant to G9 the right to publish and publicly display the Inventory Data and making it available on G9’s web sites (“Web Sites”) and any media known now or in the future. You shall be solely responsible for ensuring that the Inventory Data is current, complete and accurate, including item UPC and/or the item’s manufacturer’s part number. G9 specifically disclaims any warranty regarding the quantity, rank, location and prominence of the Inventory Data anywhere on the Web Sites. G9 reserves the right to determine whether and where the Product Data will be displayed in response to any given search. G9 may elect to not display Inventory Data (or any portion thereof), or any of Your products, in its sole discretion. Additionally, G9 reserves the right to remove any Inventory Data from, with or without notice to You, if, in its sole opinion, such Inventory Data (i) conflicts with or is in breach of this Agreement or (ii) the nature or quality of the Inventory Data or underlying product is inconsistent with G9’s mission or standards.
8. Data Security and Confidentiality. G9 will use commercially reasonable efforts to protect the security and confidentiality of your Data and will use industry standard procedures to protect the security of your Data. G9 will not disclose Identifiable Data to anyone other than the Permitted Supplier and G9’s employees, contractors, agents and vendors on a “need to know” basis who are advised of the confidential nature of such information and agree to be bound by these Terms.
G9 will have no obligation with respect to information that: (a) was in the possession of or was known by G9 prior to its receipt from your Store’s POS; (b) is or becomes generally known to the public without violation of these Terms; (c) is obtained by G9 from a third party without an obligation to keep such information confidential; or (d) is independently developed by G9 without use of your Identifiable Data. If G9 is compelled pursuant to a legal proceeding or otherwise required by law to disclose your Identifiable Data, then before any such disclosure G9 will promptly notify you so you may seek a protective order or other appropriate remedy and/or waive compliance with these Terms. In that case, only that portion of your Identifiable Data that is legally required to be disclosed will be disclosed. You acknowledge that, notwithstanding any security precautions that G9 implements, the use of or connection to the Internet by your computer or POS provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to your POS. Accordingly, G9 cannot and does not guaranty the privacy, security or authenticity of any information so transmitted over or stored in any system connected to the Internet.
9. Representations and Warranties. G9 represents and warrants that the Software is designed and intended to: (a) only query and collect Data from the POS and not alter the POS or its database content; and (b) not contain any viruses, Trojan horses, or any other type of malware or destructive or malicious code. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5, THE SOFTWARE IS PROVIDED “AS IS” AND G9 AND EACH OF ITS LICENSORS MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE OR G9’s COLLECTION OF DATA, THE PERFORMANCE OF ANY SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS OR SUFFICIENCY FOR A PARTICULAR PURPOSE, OR ARISING FROM THE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE.
10. Data Integrity. You represent and warrant that you have the necessary right and authority to provide the Data. You agree not to falsify, tamper or manipulate the Data or make it inaccurate, misrepresent the underlying facts, or misleading in any way. You acknowledge that G9, your suppliers and G9’s customers will rely on the accuracy and completeness of your Data, and you agree to indemnify G9 against any claims or losses incurred by G9 resulting from falsified, inaccurate, incomplete, or misleading Data.
11. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, G9 SHALL NOT BE LIABLE TO YOU OR YOUR STORE, ANY SUPPLIER, OR ANY OTHER INDIVIDUAL OR ENTITY, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, IN ANY WAY ARISING OUT OF THE TRANSACTIONS CONTEMPLATED BY THESE TERMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. This limitation of liability includes, without limitation, any malfunction of your Store’s POS or other equipment, corruption of the POS database, breach of G9’s data security measures and misuse of your Data by suppliers and G9’s vendors.
12. Term; Termination. These terms shall apply so long as you permit G9 to collect Data from your POS and to share Identifiable Data with Permitted Suppliers. You may terminate these Terms at any time by removing the Software from your POS or by written notification to G9. All obligations and protections of the parties under these Terms that by their nature would continue beyond termination shall survive such termination. Section 1, 2, 3, 6 and 8 shall survive termination in respect to Data up to the termination date.
13. General Provisions. These Terms shall inure to the benefit of and be binding on the parties and their respective successors and assigns. Each party is independent of the other, and nothing contained in these Terms shall be deemed or construed to create any partnership, joint venture, agency, fiduciary or other similar relationship. These Terms are made solely and specifically between and for the benefit of Store and G9, and no other person or entity shall have any rights, interests or claims hereunder or be entitled to any benefits under or on account of these Terms as a third party beneficiary or otherwise (including without limitation, suppliers). Nothing in these Terms shall affect any agreements or terms between Store and its suppliers, and G9 accepts no responsibility for maintaining or enforcing any such agreements or terms. If a dispute arises between you and G9, both parties agree to use their good faith efforts to resolve the dispute as quickly as possible through negotiation, including if necessary, meetings between the executives of each party. If the dispute is not resolved within thirty (30) days after the initial meeting to resolve the dispute, then before resorting to litigation, arbitration or some other dispute resolution procedure, the parties agree first to try in good faith to resolve the dispute through mediation administered by the America Arbitration Association under its Commercial Mediation Procedures, in Santa Clara County, California, and to share the cost of mediation equally.
If the parties cannot resolve the dispute through mediation, each party consents to litigation and trial without a jury in the United States District Court for the Northern District of California and/or the appropriate California state court in Santa Clara County. These Terms shall be governed by and interpreted in accordance with the laws of the State of California, without regard to its conflicts of laws principles. If any provision(s) or portion(s) of these Terms is determined to be invalid or unenforceable, the other provisions will remain in full force and effect and the parties agree to promptly substitute, for the invalid or unenforceable provision(s), new provision(s) which are enforceable and which most closely approximate the intent and economic effect of the invalid provision(s). G9 may modify these Terms at any time; provided, however, if G9 modifies these Terms, G9 will provide Store with an opportunity to accept the modified Terms. These Terms contain the complete understanding between the parties regarding its subject matter, superseding and merging all prior or contemporaneous oral or written inducements, course of dealing, communications, conditions, representations, warranties or agreements relating thereto.