Taiga Terms of Service
These Terms of Service (“Terms”) are incorporated into each Order Form that may be executed by the parties (each individual Order Form, together with these Terms, the “Agreement”) and govern the Services provided by Taiga to Client. The Effective Date shall be the date of execution of the Order Form. All capitalized terms not defined herein have the meaning ascribed to them the Order Form. If there is a conflict between the Terms and the Order Form, the Order Form shall control.
(a) Taiga hereby grants to Client a nonexclusive, nontransferable, and revocable license to access and use its proprietary Services, as specified in an Order Form, at specific Properties, as specified in an Order Form, for the Term of this Agreement. “Properties” include real property store locations owned or controlled by Client. In order to perform the Services, Client must provide Taiga data (“Data”). The quality of the Services is contingent upon the amount and quality of Data provided. Software features and functionalities developed by Taiga after the Effective Date may not be made available hereunder without the payment of additional fees. Client specific data manipulation services, consulting services, customized report generation and other services outside of the standard Services provided by Taiga are not included hereunder unless specified in the Order Form as custom services (“Custom Services”).
(b) Taiga will abide by all laws, rules, and regulations that are applicable to the Services, including all applicable local data protection and privacy regulations. Taiga will perform the Services in a professional and workman-like manner. Taiga will use commercially reasonable efforts to provide access to the Services 24 hours a day, 7 days a week except for scheduled downtime for maintenance or downtime caused by circumstances beyond the reasonable control of Taiga.
(c) Users are those individuals authorized by the Client to use the Services (“Users”). Taiga will provide telephonic User training as part of the launch of the Services. Client may request on-site training at the then current daily fee plus reasonable travel expenses, subject to reasonable scheduling.
2. Fees and Payment
(a) All Installation Fees and Monthly Fees (“Fees”) are as stated in the Order Form. Client will pay Taiga the Installation Fees and the first 3 months of Monthly Fees upon the Effective Date. Thereafter, Monthly Fees will be invoiced quarterly, 30 days in advance. Fees are non-refundable. After the Initial Term, Taiga may increase the Monthly Fees up to 5% in any 12-month period.
(b) Taiga will send all invoices to Client via email to the Client Billing Contact provided on the Order Form. Client may change the billing contact information via written notice to Taiga.
(c) All Fees will be paid in U.S. dollars. Client is responsible for and agrees to pay any taxes, duties, or the like that apply to the use of the Services (except for any Taiga employment or income taxes). All invoices are payable within 30 days of the invoice date as stated on the invoice. Taiga may charge interest on all past due amounts at the rate of 1.5% per month or, if lower, the maximum rate permitted by applicable law. If Taiga does not receive full payment within 60 days following the invoice date, Taiga reserves the right to suspend Client’s access to the Services. Any suspension of access will not relieve Client of its obligation to pay all amounts due. If an invoice remains unpaid for more than 90 days, Taiga may refer collection of the unpaid amount to an attorney or collections agency, in which case Client shall pay all reasonable attorney’s fees or collections agency fees.
3. Term and Termination
(a) The “Initial Term” of each Order Form will commence on its Effective Date and will remain in effect for 24 months, unless terminated earlier pursuant to Section 3(b). Taiga may reject any Order Form with written notice within 30 days of receipt of complete Client Data if determined by Taiga in its sole discretion that Data is insufficient to support the Services. In such case, any Fees paid by Client in association with such Order Form will be refunded once any hardware provided by Taiga to Client under such Order Form is returned to Taiga. Each Order Form will auto renew for 12-month terms (“Renewal Terms”) unless either party provides written notice to the other party 90 days prior to the end date of the Initial Term. Client may terminate an Order Form during a Renewal Term upon 90 days’ written notice to Taiga. Client may terminate the Services associated with a specific Property if the Property is no longer owned or controlled, in whole or part, by Client upon immediate written notice to Taiga. Upon termination of the Agreement, Client agrees to return to Taiga any Taiga hardware.
(b) This Agreement or any specific Order Form will terminate 30 days after a party’s written notice to the other party that such other party is in material breach of any of the terms or conditions of the Agreement or relevant Order Form unless the other party cures such breach within said 30-day period. Either party may terminate the Agreement immediately upon written notice in the event the other party: (i) becomes insolvent, files a petition in bankruptcy, or has filed against it a petition in bankruptcy (which is not dismissed within 30 calendar days after it is filed); (ii) makes an assignment for the benefit of creditors; or (iii) dissolves or ceases to do business in the ordinary course. Upon termination of this Agreement, Taiga will cease providing the Services.
4. Client Use of Services
Client will abide by all laws, rules, and regulations that are applicable to its use of the Services. Client agrees that it will not transfer or permit any third party to access the Services and will use the Services for internal business purposes only. Client may establish any number of user accounts for access to the Services, but client agrees that only one individual will be assigned to each user account. If third party access is permitted by Client, Client will be responsible for the acts and omissions of the third party in connection with such access. Client agrees that it will not: modify, translate, alter, or otherwise create derivative works of the Services; reverse engineer, disassemble, or decompile any Services or related documentation; or apply any other process or procedure to derive the source code of the Services. Client has sole responsibility for the accuracy, quality, integrity, legality and intellectual property ownership or use rights of any data that Client or Client’s third party vendors provide to Taiga in the course of Client’s use of the Services and represents and warrants that it has the right to grant to Taiga the rights and licenses necessary to perform the Services.
Each party may have access to or become acquainted with information and other property that is either owned or licensed by such other party. Such information and property that is conspicuously marked “Confidential,” “Proprietary,” or the like and/or that the receiving party should reasonably understand as being confidential or proprietary to the disclosing party is “Confidential Information.” Notwithstanding the foregoing, Confidential Information does not include any information that the receiving party can reasonably demonstrate: (i) is generally available to the public; (ii) was in the rightful possession or known by the receiving party prior to receipt; (iii) was rightfully disclosed to the receiving party by a third party; or (iv) was independently developed without use of any Confidential Information of the disclosing party. The obligations set forth in this Section 5 will not apply to the extent that the other party’s Confidential Information is required to be disclosed by law or valid order of a court or other governmental authority; provided that the responding party agrees to deliver reasonable notice to the disclosing party and use commercially reasonable efforts to cooperate with such disclosing party’s attempt to obtain a protective order. Each party will use the other party’s Confidential Information only in connection with the performance of its obligations and exercise of its rights as described in the Agreement. Each party will use the same degree of care that it uses with respect to its own Confidential Information (but in no event less than reasonable care) to maintain in confidence any Confidential Information of the other party. Each party’s obligations set forth in this Section 5 will apply during the Term this Agreement and for a period of 10 years after termination of this Agreement.
Taiga will use commercially reasonable efforts in accordance with the its internal security policies to protect the confidentiality, integrity and availability of Client Data. It is the responsibility of Client and Client Users to maintain the security of any usernames and passwords used to access the Services.
7. Proprietary Rights
(a) Taiga reserves all rights in and to the Services that are not expressly granted to Client herein. Title to and ownership of all written materials, systems, software, documentation, tools, utilities, methodologies, specifications, techniques and other materials, know how, and hardware (and all derivative works and/or enhancements thereof, “IP”) owned by a party or in the possession of such party prior to the Effective Date (together with the intellectual property rights therein) will remain with that party. Title to and ownership of any IP resulting from the provision or use of the Services and/or all Custom Services (“New IP”) (including, without limitation, any suggestions, ideas, enhancement requests, and feedback provided by Client or any third party relating to the Services and Custom Services) will vest in Taiga. Client hereby assigns and will assign to Taiga any and all right, title, and interest in and to the New IP, including without limitation all applicable intellectual property rights.
(b) Client shall retain all right, title and interest in and to the Data, except that Client hereby grants to Taiga a worldwide, royalty-free, nonexclusive right and license to receive, maintain, and use the Data in connection with the performance of its obligations and exercise of its rights hereunder for the Term of this Agreement. In addition, Client hereby grants to Taiga a worldwide, royalty-free, nonexclusive, irrevocable right and license to use, reproduce, distribute, sell and publish de-identified Client Data in any manner for any purpose. De-identified means that the data does not identify a particular consumer or the Client.
8. Representations, Warranties and Limitations of Liability
(a) Taiga represents and warrants that it: (i) has full organizational power, right, and authority to enter into this Agreement and to carry out its obligations hereunder; (ii) has no outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement or that would preclude it from complying with the provisions of such other agreement or obligation; and (iii) will materially perform the Services as prescribed herein. Client’s sole and exclusive remedy for any breach of the foregoing is to terminate this Agreement as per Section 3(b).
(b) Client represents and warrants that it: (i) has full organizational power, right, and authority to enter into this Agreement and to carry out its obligations hereunder; (ii) has no outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement or that would preclude it from complying with the provisions of such other agreement or obligation; (iii) has obtained all necessary consents required to use Client Data in connection with the Services and that Client Data does not infringe the Intellectual Property Rights or any other right of any third party; and (iv) will abide by all laws, rules, and regulations that are applicable to the Services, including all applicable local data protection and privacy legislation and regulations.
(c) EXCEPT AS STATED HEREIN, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND EACH PARTY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES THAT MAY ARISE BY OPERATION OF LAW. WITHOUT LIMITING THE FOREGOING, TAIGA MAKES NO WARRANTIES THAT THE SERVICES ARE FREE FROM ANY BUGS, ERRORS OR OMISSIONS.
(d) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES FOR LOSS OF PROFITS, LOST BUSINESS, LOSS OF USE, ECONOMIC LOSS OR LOST DATA, INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, WHETHER OR NOT FORESEEABLE AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(e) TAIGA HAS NO LIABILITY OF ANY KIND, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, FOR ANY UNAUTHORIZED ACCESS TO CLIENT DATA OR USER ACCOUNTS AS A RESULT OF CLIENT OR CLIENT USERS’ ACTIONS OR INACTIONS.(f) IN NO EVENT WILL TAIGA’S AGGREGATE AND CUMULATIVE LIABILITY FOR DAMAGES HEREUNDER EXCEED THE AMOUNT OF THE QUARTERLY FEES PAID OR PAYABLE BY CLIENT TO TAIGA HEREUNDER DURING THE QUARTER PRIOR TO THE DATE ON WHICH THE CAUSE OF ACTION AROSE. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION AND THE FOREGOING WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
(a) Taiga will indemnify, defend, and hold harmless Client and its officers, directors, employees and agents (each, a “Client Indemnified Party”) from and against any and all reasonable damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred by a Client Indemnified Party in any reasonable third party action arising from or in connection with: (i) its failure to abide by all laws, rules, and regulations that are applicable to the Services; or (ii) any third party claim that the Taiga IP, when used within the scope as set forth herein, infringes any patent enforceable in the United States, copyright, trademark, or service mark of any third party. In addition, if the IP is, or in the opinion of Taiga may become, the subject of any claim for infringement or if it is adjudicated that the IP is infringing, then Taiga may, at its option and expense, either (x) procure for Client the right from such third party to use the IP, (y) replace or modify the IP with other suitable and reasonably equivalent products so that the IP becomes non-infringing or (z), if (x) and (y) are not practicable, terminate the Agreement and provide Client with a pro rata refund of prepaid fees for Services that were to be provided following the effective date of termination. This Section 9(a) states the entire obligation of Taiga and Client’s sole remedies with respect to any claim regarding the intellectual property rights of any third party. The obligations of Taiga as set forth in this Section 9(a) will be excused if the Client Indemnified Party fails to: (i) promptly notify Taiga in writing of the claim or promptly tender control of the defense and settlement of any such claim to Taiga at its expense and with its choice of counsel; or (ii) cooperate with Taiga, at the expense of Taiga, in defending or settling such claim. The Client Indemnified Party may join in the defense with counsel of its choice at its own expense.
(b) Client will indemnify, defend, and hold harmless Taiga and its officers, directors, employees and agents (each, a “Taiga Indemnified Party”) from and against any and all damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred by a Taiga Indemnified Party in any third party action arising from or in connection with its: (i) failure to abide by all laws, rules, and regulations that are applicable to the Services; (ii) willful misconduct; (iii) breach of this Agreement or any representations or warranties hereunder; or (iv) Client Data. The obligations of Client as set forth in this Section 9(b) will be excused if the Taiga Indemnified Party fails to: (i) promptly notify Client in writing of the claim or promptly tender control of the defense and settlement of any such claim to Client at its expense and with its choice of counsel; or (ii) cooperate with Client, at the expense of Client, in defending or settling such claim. The Taiga Indemnified Party may join in the defense with counsel of its choice at its own expense.
Client agrees that Taiga may use Client’s name, trademarks, trade names, and logos in reference to Client’s use of the Services on its website, in marketing materials and in communications with potential clients.
This Agreement is governed in all respects by the laws of the State of Ohio, without regard to its conflict of law principles. The exclusive jurisdiction and venue for all disputes under this Agreement will be the state and federal courts located in Hamilton County, Ohio. The relationship between Taiga and Client is that of an independent contractor, and nothing in this Agreement is intended, or should be construed, to create a partnership, agency, joint venture or employment relationship. All notices permitted or required under this Agreement will be in writing and will be by personal delivery, overnight courier, or US mail, and deemed received upon personal delivery, the promised delivery date after deposit with overnight courier, or 5 days after deposit in the US mail. Notices will be sent to the person who has signed this Agreement or to such other person or address a party may specify to the other party in writing. Each party will deem a document faxed or sent as a .pdf attachment to it as an original document. If any provision of this Agreement is unenforceable or invalid under any applicable law or court decision, such unenforceability or invalidity will not render such Agreement unenforceable or invalid as a whole. In such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or court decisions. Provisions that should reasonably be considered to survive termination of an Agreement will survive. 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 party will be liable under this Agreement by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of any cause beyond the reasonable control of such party. Client may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise. Taiga may assign this Agreement in whole or in part in connection with an internal reorganization or a merger, acquisition, or sale of all or substantially all of the Taiga assets to which this Agreement relates. Any attempt to assign this Agreement other than as permitted herein will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns. This Agreement completely and exclusively states the agreement of the parties regarding its subject matter. This Agreement supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding its subject matter. This Agreement may not be modified except by a written amendment signed by a duly authorized representative of each party.
If you have any questions about these Terms, please contact us.