CAKE Software License and Service Agreement
Terms and Conditions
The customer identified on the Order to which these Terms and Conditions are attached (the “Customer”) and CAKE, each of whom may hereinafter be referred to as a “Party”, and collectively as the “Parties” hereby agree as follows:
These Terms and Conditions shall apply to Customer’s use of CAKE’s web-based application software, packaged professional services, products, and off and online support (each, a “Service” and collectively, the “Services”) identified in one or more ordering documents signed by the Parties including any exhibits thereto (each, an “Order” and collectively, the “Orders”). These Terms and Conditions and all Orders (collectively referred to as the “Agreement”) represent the Parties’ entire understanding regarding the Services and shall control over any other documents or agreements. In the event of a conflict between these Terms and Conditions and an Order, the terms of the Order shall control.
CAKE may update these Terms and Conditions at any time and CAKE will make the updated Terms and Conditions available by posting the updated version on our website (the “Site”). CAKE will use reasonable efforts to inform you of any such updates via the email you provide in your Order. However, your continued use of the Application, as defined below, shall be conclusive evidence that you have read and consented to the Agreement as amended or modified and further agree on a going forward basis to comply with, and be bound by, all the terms and conditions contained within the Agreement as amended or modified at that time. The latest version of these Terms and Conditions will be posted on the Site and you should review the Terms and Conditions prior to each use of the Application. You should regularly check the Site for updates and/or changes. If at any point you do not agree to any portion of the terms of this Agreement then in effect, you must immediately stop using the Application.
1. License Grant.
Subject to the terms and conditions of this Agreement, CAKE hereby grants to Customer a limited, non-exclusive, non-assignable and non-transferable license during the Term to: (a) access and use the Application solely to manage and operate its business and (b) store Customer Data on or through the Application, and (c) allow Users and Partners to access and use the Application for the sole purposes set forth in the foregoing clauses (a) and (b). The term “Application” means the web-based application software made available by CAKE to Customer.
Customer acknowledges that CAKE owns the exclusive right, title and interest throughout the world in and to the Application and any portions or copies thereof, and all patents, trademarks, trade names, copyrights and trade secrets (including, without limitation, all related technical know-how) (collectively, the “Proprietary Rights”). The licenses granted hereby shall not constitute a sale of the Application or of the underlying software and Proprietary Rights therein. Customer further acknowledges that any derivative products or works, feedback, ideas or suggestions made by Customer with regard to improvements or modifications to the Application are, and shall at all times be, the property of CAKE, with all right, title and interest therein. Customer hereby assigns, and shall cause each User and Partner to assign, to CAKE all right, title and interest that Customer or any User or Partner may have in and to any such derivative products or works, feedback, ideas, or suggestions, and in and to any improvements or modifications to the Application resulting therefrom. For purposes of this Agreement, (a) the term “User” means any employee or independent contractor of Customer that is authorized thereby to access and use the Application for and on behalf of Customer in accordance with this Agreement, and (b) the term “Partner” means any entity that is not a User that is authorized by Customer to access and use the Application in accordance with this Agreement. Customer acknowledges and agrees that Customer shall remain liable for all actions and omissions of its Users and Partners hereunder or under any applicable separate agreement.
All rights not expressly granted to Customer under this Agreement are expressly reserved to CAKE. Customer shall not and shall not permit any User or third party (including, without limitation, any Partner) to, directly or indirectly: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Application; (b) modify, translate, or create derivative works based on the Application; (c) install, sublicense, rent, lease, distribute, sell, resell, assign, or otherwise transfer the rights to access and use the Application to any third party as a service bureau or any other means; or (d) remove any proprietary notices, trademarks, or labels contained on or within the Application or any graphical representation thereof.
2. Fees and Payment.
Customer shall pay CAKE the fees set forth on Customer’s Order (collectively, the “Fees”). Customer shall pay CAKE the Fees within the time period set forth in Customer’s Order. Any Fees not paid by the respective due date shall be subject to a late charge of one and one-half percent (1.5%) per month or the highest rate allowed by law, whichever is less. All payments made to CAKE shall be made in US Dollars by wire transfer, ACH, credit card or check.
Customer is solely responsible for payment of any taxes (including sales or use taxes, transfer taxes, excise taxes, intangible taxes, property taxes, and similar taxes and duties) resulting from the transactions contemplated by the Agreement, excluding, however, any taxes payable by CAKE as a result of income earned by CAKE hereunder.
The initial term of this Agreement (the “Initial Term”) will commence on the Effective Date and unless earlier terminated by either Party pursuant to Section 14, will continue for the time period listed in Customer’s Order. Thereafter, this Agreement shall automatically renew for the time period listed in Customer’s Order (each a “Renewal Term”) unless terminated earlier pursuant to Section 14. The Initial Term and any Renewal Term shall constitute the entire term (“Term”) of this Agreement.
4. Technical Support Services.
During the Term, CAKE shall provide to Customer technical support for issues arising in connection with Customer’s standard day-to-day use of the Application. This support will be provided during normal business hours of CAKE and may be provided in the form of email or telephone support at the sole discretion of CAKE. For the avoidance of doubt, CAKE shall not provide the foregoing technical support to Partners, all of which shall be the responsibility of Customer at its own expense.
5. Service Level Agreement.
In the event the Application experiences a defect or failure, CAKE will use its commercially reasonable efforts to resolve such defect or failure. CAKE warrants that the Application’s service downtime will not exceed one-tenth of one percent (0.1%) in any given calendar month, excluding maintenance downtime. If Customer experiences downtime for more than one-tenth of one percent (0.1%) during a given calendar month, excluding maintenance downtime, CAKE will credit to Customer a fee equal to the total percentage of downtime (excluding maintenance downtime) for that month multiplied by the monthly fee for that month (“Downtime Credit”). Notwithstanding the foregoing, the Downtime Credit does not apply to: (a) downtime resulting from Force Majeure Events as provided for in this Agreement, (b) any downtime not attributed solely to CAKE, (c) any planned downtime of which Customer is given at least 24 hours’ notice, (d) any downtime caused by CAKE’s exercised right to suspend Customer’s access to the Application pursuant to Section 14, and (e) downtime caused by any malfunction or failure of Customer’s hardware, systems, other software or internet access service.
Customer shall report any unscheduled unavailability of the Application as soon as possible upon its occurrence, and in no case less than 24 hours from its occurrence (“Customer Reporting Obligations”) to CAKE’s Help Desk at (949) 548-2253 in order to be entitled to a Downtime Credit, and must request, in writing, any Downtime Credit due hereunder within thirty (30) days of the conclusion of the month in which it accrues. Customer hereby waives any right to Downtime Credits not requested within such thirty (30)-day period. Downtime Credits verified by CAKE shall be applied to any subsequent monthly fees due under this Agreement or any additional fees incurred hereunder, or, if no such monthly fees or other fees become due, shall be paid, at the request of the Customer, in U.S. Dollars from Company upon the termination of this Agreement.
6. Data Ownership, Aggregation and Storage.
“Customer Data” consists of information input into the Application by Customer, Customer’s Users or any Partner, and Customer, User and Partner behavior on the Application, as captured by the Application. CAKE agrees that Customer will own all Customer Data. Customer is ultimately responsible for making and keeping current copies of all Customer Data and related information. CAKE shall not disclose the Customer Data to any third party unless (a) directed by Customer, (b) such disclosure is made by CAKE in response to a court order, subpoena or other legal process, and provided that CAKE has given Customer reasonable notice of such court order, subpoena or other legal process, or (c) is in aggregate non-personally identifiable form. Customer hereby grants to CAKE a royalty-free, worldwide, perpetual, irrevocable and fully transferable right and license to use Customer Data in connection with the creation and development of analytical and statistical analysis tools related to collected data.
“CAKE Data” includes any information, tracking data or tracking methodologies, other than Customer Data, generated by the Application, regardless of whether or not the information, tracking data or tracking methodology was generated as a result of Customer’s use of the Application. All data and information that is not Customer Data (including CAKE Data) is owned by CAKE, with all right, title and interest therein.
7. Customer Requirements.
Customer shall not and shall cause each of its Users and Partners not to, directly or indirectly, in connection with their business practices or activities, or on or in connection with any websites controlled or operated thereby, or on or in connection with any websites in which they utilize the Application: (a) participate in, undertake, encourage or display any political hate-mongering, racial, ethnic, fraudulent, misleading or otherwise objectionable content or false advertising, (b) participate in, undertake, encourage or display any hacking or software pirating, (c) participate in, undertake, encourage or display any activity in violation of any applicable state, federal or international laws, rules or regulations, (d) participate in, undertake, encourage or display any activity that violates the federal CAN-SPAM Act of 2003 or other applicable state or international SPAM laws, as amended from time to time.
If any advertising, lead generation or website content or materials are deemed by CAKE, in its sole discretion, to not meet the letter or spirit of the standards set forth in this Agreement, CAKE may request that Customer make changes to bring such content and materials into compliance. If Customer fails to make the necessary changes immediately upon request, and without limiting any of the other remedies available to CAKE at law or in equity, CAKE is authorized to remove the content and/or materials, suspend any applicable campaign, or terminate this Agreement immediately, without liability to Customer. Customer agrees and acknowledges that CAKE shall have the right to audit from time to time the content and material Customer is promoting, distributing and/or displaying on or through the Application or in connection with the use thereof.
If Customer’s domain or IP (Internet Protocol) is ‘blacklisted’ for SPAM, CAKE may require that Customer immediately suspend and permanently remove the applicable advertising campaign, links, and/or websites (including landing pages) upon notice to Customer. If the matter is not resolved immediately by Customer, including by suspending and permanently removing the applicable advertising campaign, links and/or websites, CAKE reserves the right (without limiting any of the other remedies available to CAKE at law or in equity) to independently suspend Customer’s domain or IP, such campaign, links and/or websites (to the extent accessible by CAKE), Customer’s access to the Application, or to take such other steps it deems necessary or appropriate under the circumstances, or to terminate this Agreement (and Customer’s use of the Application) immediately, without liability to Customer, in all events, in CAKE’s sole discretion.
During the Term of this Agreement and for three (3) years thereafter, each Party receiving Confidential Information (the “Receiving Party”) of the other Party (the “Disclosing Party”) shall: (a) treat such Confidential Information as the confidential property of the Disclosing Party and be responsible for any breach of the terms hereof by itself or any authorized person who receives Confidential Information of the Disclosing Party on its behalf (including, in the case of Customer, any breach by a User or Partner); (b) not use the Confidential Information except in connection with this Agreement (c) not disclose or otherwise make available the Confidential Information of the Disclosing Party to any third party (except as authorized herein and other than to such party’s employees or independent contractors who (i) have a need to know such Confidential Information, (ii) have been advised of the confidential nature of such information and the obligations that apply to them in connection therewith and (iii) are subject to obligations of confidentiality with respect to such information as stringent as those set forth herein); and (d) maintain the confidentiality of the Confidential Information of the Disclosing Party as it would its own most highly confidential information, but in no event shall the Receiving Party use less than reasonable care.
“Confidential Information” means, with respect to a given Party, such Party’s formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, business and marketing plans, customer names, prospective customer names, the terms and pricing under this Agreement, any data relating to any research project, work in process, engineering, manufacturing, marketing, servicing, financing or personnel matter, data relating to such Party’s present or future products, sales, suppliers, clients, customers, employees, investors or business partners (including any confidential information of such suppliers, clients, customers, employees, investors or business partners) and all information clearly identified in writing at the time of disclosure as confidential, and in the case of the CAKE, the Application. Confidential Information does not include information that: (a) was or is in the public domain prior to the date of disclosure; (b) was or is lawfully received by the Receiving Party from a third party who is not subject to an obligation of confidentiality with respect to such information; (c) was or is already known by or in the possession of the Receiving Party; or (d) is required to be disclosed under applicable law or by a governmental or court order, decree, regulation or rule, provided that the Receiving Party gives written notice to the Disclosing Party to the extent legally permissible prior to disclosure.
The Receiving Party acknowledges that the Disclosing Party shall incur irreparable damage if the Receiving Party should breach any of the provisions of this Section. Accordingly, if a Receiving Party or any of its respective agents or representatives breaches or threatens to breach any of the provisions of this Section, the Disclosing Party shall be entitled, without prejudice, to all the rights and remedies available to it, including an equitable relief restraining any potential breach of the provisions of this Section by the Receiving Party, without having to prove damages or post a bond or other security.
9. Disclaimer of Warranties.
THE APPLICATION IS PROVIDED “AS-IS” AND WITHOUT ANY OTHER EXPRESSED OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. CAKE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE APPLICATION OR THE OPERATION OR USE THEREOF. CAKE HEREBY EXCLUDES ALL IMPLIED WARRANTIES AND CONDITIONS TO THE EXTENT PERMITTED BY LAW, INCLUDING, ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE. CAKE HEREBY EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, AND OF NON-INFRINGEMENT, CONCERNING THE APPLICATION AND OPERATION OR USE THEREOF. CAKE DOES NOT WARRANT THAT THE APPLICATION WILL MEET ALL OF CUSTOMER’S BUSINESS REQUIREMENTS, OR THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR FREE.
10. Disclaimer of Damages and Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CAKE BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, OR STRICT LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, DATA OR GOODWILL, REGARDLESS OF WHETHER CAKE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CAKE’S TOTAL CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) EXCEED THE AMOUNT PAID BY CUSTOMER AS FEES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIM GIVING RISE TO THE ALLEGED DAMAGES.
Customer and its successors and assigns shall indemnify, defend, and hold harmless CAKE, and its shareholders, directors, officers, employees and agents, and its and their respective successors and assigns from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, reasonable attorneys’ fees and costs that any such indemnified party may incur or suffer as a result of a third party claim or demand, which arise, result from, or relate to (a) a breach of any of Customer’s representations, warranties and covenants set forth in this Agreement, (b) any act or omission by Customer or Customer’s Users or Partners, (c) Customer’s goods or services, (d) any Partner’s or User’s business practices and/or advertising practices, or (e) the use of the Application by Customer or Customer’s Users or Partners not in accordance with the terms hereof.
CAKE and its successors and assigns shall indemnify, defend, and hold harmless Customer, and its shareholders, directors, officers, employees and agents, and its and their respective successors and assigns from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, reasonable attorneys’ fees and costs that any such indemnified party may incur or suffer as a result of a third party claim or demand, which arise, result from, or relate to a breach of any of CAKE’s representations, warranties and covenants set forth in this Agreement. Notwithstanding the foregoing, CAKE shall have no liability or indemnity obligation for any such claim arising from (i) the use of the Application in combination with non-approved third party products, including hardware and software, (ii) modifications or maintenance of the Application by a party other than CAKE, or (iii) or the use of the Application in any manner not authorized herein or in violation of this Agreement.
The foregoing indemnification obligations are conditioned on the indemnified party: (a) giving the indemnifying party prompt written notice of the relevant claim; (b) reasonably cooperating with the indemnifying party, at the indemnifying party’s expense, in the defense of such claim; and (c) giving the indemnifying party the right to control the defense and settlement of such claim, except that the indemnifying party shall not enter any settlement other than for money damages without the indemnified party’s prior written approval.
12. Compliance with Applicable Laws.
Customer shall comply with all applicable federal, state, county and local laws, ordinances, regulations, and codes and will procure all required permits, approvals, inspections and certificates in order to operate its business in compliance with all applicable laws.
13. Use of Customer’s Trademarks.
Customer grants to CAKE for the Term, a non-exclusive, non-transferable license to use, reproduce, publicly and digitally display and broadcast Customer’s name, trademarks, trade names, service marks, logos, URLs (“Customer Trademarks”) to advertise and promote CAKE, its business and its Application. CAKE agrees that nothing in this Agreement shall give any right, title, or interest in or to Customer Trademarks other than the right to use the Customer Trademarks in the manner contemplated by this Agreement. Nothing in this Agreement gives Customer the right or license to use the CAKE Logo or any other trademarks, tradenames, services marks, logos of CAKE without the prior written approval of CAKE.
Either Party may terminate this Agreement during the Term: (a) effective upon providing thirty (30) days prior written notice (ten (10) days with regard to the payment of Fees), if the other Party breaches or violates any of its material obligations set forth in this Agreement, and fails to cure such breach or violation within thirty (30) days (ten (10) days with regard to the payment of Fees) after receiving written notice of such breach or violation from the other Party; or (b) immediately if the other Party undergoes a bankruptcy or otherwise becomes subject any other insolvency proceeding. Additionally, either Party may terminate this Agreement by providing written notice to the other Party of non-renewal thirty (30) days prior to the end of the Initial Term or any Renewal Term, as applicable.
Upon notice from CAKE that a User or Partner of Customer is in violation or breach of the terms of this Agreement, Customer will immediately terminate such User’s or Partner’s use of the Application. Customer agrees that if any User, Partner, or if Customer, uses the Application in any manner that violates any applicable law, ordinance, rule, regulation or treaty, jeopardizes CAKE’s network connection, and/or jeopardizes CAKE’s business in any way, in each case as determined by CAKE in its sole discretion, this Agreement and Customer’s use of the Application may be immediately suspended, or terminated, by CAKE.
Upon termination of this Agreement: Customer shall: (a) discontinue, and shall ensure that each User and Partner discontinues, all use of the Application; and (b) except as prohibited by applicable law or legal process, return or destroy the Confidential Information of Cake and all copies thereof to CAKE. In addition, Customer shall be liable for all Fees (if any) incurred prior to the effective date of termination and shall not be entitled to a refund of any fees paid by Customer prior to the date of termination. CAKE shall: (a) except as prohibited by applicable law or legal process, return to Customer or destroy the Confidential Information of Customer and all copies thereof; and (b) return all content in CAKE’s possession and all copies thereof to Customer.
15. Dispute Resolution.
If any dispute arises under this Agreement, the Parties agree to first try to resolve the dispute with the help of a mutually agreed upon mediator in the following location: State of California, Los Angeles County. Any costs and fees other than attorneys’ fees associated with the mediation shall be shared equally by the Parties. If it proves impossible to arrive at a mutually satisfactory solution through mediation, the Parties agree to submit the dispute to binding arbitration in the following location: State of California, Los Angeles County. The Parties agree that the binding arbitration will be conducted in English by a single arbitrator and (i) if Customer is based in the United States, under the rules of the American Arbitration Association or (ii) if Customer is based internationally, under the rules of Arbitration of the International Chamber of Commerce. Judgment upon the award rendered by the arbitrator may be entered in any court with proper jurisdiction. Notwithstanding anything to the contrary contained herein, if Customer does not pay all Fees described in Section 2 and the Order, the Parties agree that CAKE may elect to resolve any nonpayment dispute by submission to a court located in the State of California, Los Angeles County. If any litigation or arbitration is absolutely necessary to enforce this Agreement or the terms thereof, the prevailing Party shall be entitled to reimbursement by the other Party for reasonable attorneys’ fees, costs and expenses. This Agreement will be governed by the laws of the State of Delaware.
16.1 Relationship of the Parties. Each Party hereto is an independent contractor and nothing contained herein shall be construed to create a partnership, joint venture or agency relationship between CAKE and Customer, and neither Party shall be authorized to bind the other in any way. This Agreement is between CAKE and Customer, and is not for the benefit of any third party, whether directly or indirectly (including, if applicable, any User or Partner accessing the Application by means of an account established by Customer).
16.2. No Waiver. The failure of either Party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder.
16.3 Remedies; Amendment. Except as otherwise specifically provided herein, no remedy referred to in this Agreement is intended to be exclusive. No delay by either Party in exercising any of their respective rights or remedies hereunder shall be deemed to be a waiver of such rights or remedies. No waiver by either Party of any rights under this Agreement or breach by the other Party hereunder shall in any way be a waiver of any such rights in the future or any future breach. Any waiver, amendment or modification of this Agreement, and any approval or consent hereunder must be in writing and signed by the Party against whom enforcement is sought or the Party providing such approval or consent.
16.4 Assignment. Neither Party shall have the right to assign or otherwise transfer its rights and obligations under this Agreement except with the prior written consent of the other Party; provided, however, that a successor in interest by merger, by operation of law, assignment, purchase or otherwise of all or substantially all the business of a Party may acquire its rights and obligations hereunder, or be an assignee of hereof. Any prohibited assignment shall be null and void.
16.5 Invalidity. If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be conformed to prevailing law rather than voided, if possible, in order to achieve the intent of the Parties and, in any event, the remaining provisions of this Agreement shall remain in full force and effect and shall be binding upon the Parties hereto.
16.6 Headings. The headings set forth in this Agreement are solely for reference and have no legal effect whatsoever and shall not in any way affect the interpretation or construction of this Agreement.
16.7 Force Majeure. Except for the payment of monies when due, neither Party shall be liable for delay or damages due to any cause beyond its control, including, acts of God, acts of civil or military authority, labor disputes, failure or delay of suppliers or systems, including communications and power systems, DDOS attacks, fire, sabotage, war, embargo or acts or omissions of the other Party caused by any of such events (“Force Majeure”).
16.8 No solicitation. CAKE and Customer each agree not to solicit the employees of the other during the term of this Agreement and any extensions thereof, and for a period of one year after termination of this Agreement.
16.9 Non-Competition. Customer understands and agrees that during the term of the Agreement, and for one (1) year after the last date of Customer using the Application or any service made available by CAKE, Customer will not create, develop, sell, offer or distribute a Competing Service. A “Competing Service” is defined as software as a service that provides a data distribution software system with analytics for tracking affiliate and/or advertiser activity. Customer understands and agrees that violation of this clause will be grounds for immediate termination of the Agreement without liability on the part of CAKE. CAKE reserves the right to pursue equitable relief to stop any actual or threatened violation of this Section 16.9, as well as any other relief permitted under the law.
16.10 Notices. All notices, statements and reports required or permitted by this Agreement shall be in writing, addressed as set forth in the Order and deemed to have been effectively given and received: (i) five (5) business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; or (ii) when delivered if delivered personally or sent by express courier service to the address set in the Order. Either Party may change its address for the purpose of this paragraph by notice given pursuant to this paragraph.
16.11 Entire Agreement. This Agreement and all Order(s) and any exhibits, or schedules referred to in this Agreement represent the complete and exclusive statement of the mutual understanding of the Parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. Except as otherwise provided herein, this Agreement may only be revised in a writing signed by CAKE, or published by CAKE through the Site or the Application.