CAKE EU Software License and Service Agreement
Updated as of May 16, 2018
Terms and Conditions
The customer identified on the Order to which these Terms and Conditions are attached (“you” and the Customer) and CAKE (“we”, “us” 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 (as amended by CAKE from time to time in accordance with the paragraph below) 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.
- License Grant
1.1 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, (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.
1.2 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, design rights 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. In consideration of provision of the licence to use the Application and the Services by CAKE Customer hereby assigns to CAKE, and shall procure each User and Partner so assigns, with effect from its date of creation and by way of assignment of future rights, 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.
1.3 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.
- Fees and Payment
2.1 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 accruing daily 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.
2.2 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 this 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 15, 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 15. The Initial Term and any Renewal Term shall constitute the entire term (Term) of this Agreement.
- 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.
- Service Level Agreement
5.1 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 15, and (e) downtime caused by any malfunction or failure of Customer’s hardware, systems, other software or internet access service.
5.2 Customer shall report any unscheduled unavailability of the Application as soon as possible upon its occurrence, and in no case more than 24 hours from becoming aware of its occurrence (Customer Reporting Obligations) to CAKE’s Help Desk at +1 (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 CAKE upon the termination of this Agreement.
- Data Ownership, Aggregation and Storage
6.1 Customer Data consists of information input into the Application by Customer, Customer’s Users or any Partner, and Customer, User and Partner behaviour 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, including as set out in this Agreement (b) such disclosure is made by CAKE as required by law or otherwise in response to a court order, subpoena or other legal process, and provided that CAKE has given Customer reasonable notice of such requirement, court order, subpoena or other legal process, or (c) such data has been aggregated or is otherwise in 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, development and use of analytical and statistical analysis tools related to the Service.
6.2 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 without limitation CAKE Data) is owned by CAKE, with all right, title and interest therein.
- Data Protection
7.1 In this section and Schedule 1 of the Agreement, the following terms shall have the following meanings and shall be construed accordingly:
a) “Customer Personal Data” means any Personal Data processed by CAKE on the Customer’s behalf pursuant to or in connection with this Agreement;
b) “DP Law” means the Data Protection Act 1998, the EU Directive 95/46/EC, as replaced or superseded from time to time, including by the GDPR and any laws and/or regulations implementing or supplementing the GDPR; the E-Privacy Directive (2002/58/EC) and all other applicable laws and regulations relating to the processing of Personal Data, including any legislation that replaces, repeals and/or supersedes any of the foregoing;
c) “EEA” means the European Economic Area;
d) “GDPR” means the EU General Data Protection Regulation 2016/679;
e) “Privacy Shield” means the Privacy Shield scheme and principles operated by the United States Department of Commerce, as approved by the European Commission Implementing Decision (EU) C(2016) 4176 of 12 July 2016, or any replacement scheme and principles approved by the European Commission for that purpose from time to time;
f) “Privacy Shield List” means the authoritative list of organisations maintained by the United States Department of Commerce as having self-certified to the Department of Commerce as adhering to the Privacy Shield;
g) “Standard Contractual Clauses” means the standard contractual clauses for the transfer of Personal Data from the EEA to Data Processors established in third countries as set out in the Annex to European Commission Decision 2010/87/EU, (or any subsequent clauses that may amend or supersede such standard contractual clauses; and
h) “Subprocessor” means any person (including any third party, but excluding an employee of CAKE or any employee of its sub-contractors) appointed by or on behalf of CAKE to process Customer Personal Data on the Customer’s behalf in connection with this Agreement.
7.2 The terms, “Data Controller”, “Data Processor”, “Data Protection Impact Assessments”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Processing”, “Special Categories of Personal Data” and “Supervisory Authority” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly and “processed” and “process” shall be construed in accordance with the definition of “processing”.
7.3 Both parties acknowledge and agree that for the purposes of DP Law, Customer is the Data Controller and CAKE is the Data Processor of any Customer Personal Data processed by CAKE on behalf of Customer in connection with CAKE’s provision of the Services under this Agreement.
7.4 Schedule 1 sets out certain information regarding CAKE’s processing of the Customer Personal Data under this Agreement as required by Article 28(3) of the GDPR. Customer may make reasonable amendments to Schedule 1 by written notice to CAKE from time to time as Customer reasonably considers necessary to meet those requirements. Nothing in Schedule 1 (including as amended pursuant to this section 7.4) confers any right or imposes any obligation on any party.
7.5 Each party warrants and undertakes that it shall comply with all applicable obligations which may arise under DP Law in connection with the processing of Customer Personal Data.
7.6 Customer shall ensure that: (a) it is entitled to transfer the relevant Customer Personal Data to CAKE so that CAKE and each Subprocessor may lawfully use, process and transfer the Customer Personal Data in accordance with this Agreement on the Customer’s behalf; and (b) the relevant third parties have been informed of, and, to the extent required under DP Law, have given their consent to, such use, processing, and transfer as required by all applicable DP Law.
7.7 CAKE shall:
(a) not process Customer Personal Data other than as contemplated under this Agreement or on Customer’s documented instructions and solely for the purposes of providing the Services unless processing is required by any applicable DP Law to which CAKE is subject, in which case CAKE shall, to the extent permitted by any applicable DP Law, inform Customer of that legal requirement before the relevant processing of that Customer Personal Data;
(b) promptly notify the Customer if CAKE believes that the Customer’s instructions infringe DP Laws;
(c) ensure that all its personnel who have access to the Customer Personal Data are subject to confidentiality undertakings or professional or statutory obligations of confidentiality;
(d) taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, in relation to the Customer Personal Data implement appropriate technical and organisational measures to ensure a level of security appropriate to that risk, including the measures referred to in Article 32(1) of the GDPR;
(e) only process the Customer Personal Data within the locations set out in paragraph (e) of Schedule 1 unless the prior written consent of Customer has been obtained;
(f) assist the Customer, at the Customer’s cost and expense, and taking into account the nature of the processing and information available to CAKE, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security of processing, breach notifications, Data Protection Impact Assessments and consultations with Supervisory Authorities or regulators relating to Customer Personal Data processed by CAKE;
(g) notify the Customer without undue delay after becoming aware of a Personal Data Breach;
(h) at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the Services and/or the Agreement unless required by the DP Laws or any applicable law to which CAKE is subject to store the Customer Personal Data; and
(i) maintain and make available to Customer on reasonable request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to reasonable audits, including inspections, by Customer or an auditor mandated by Customer in relation to the processing of the Customer Personal Data by CAKE or its Subprocessor(s) as required by Article 28(3)(h) of the GDPR.
7.8 The Customer acknowledges that CAKE is reliant on it for direction as to the extent to which CAKE is entitled to use and process the Customer Personal Data. Consequently, without prejudice to Section 12.1 of this Agreement, the Customer shall defend, indemnify and hold harmless CAKE against any claims, actions, or proceedings brought by a Data Subject or a Supervisory Authority arising from any act or omission by it to the extent that such act or omission resulted directly from the Customer’s instructions.
7.9 The Customer hereby generally authorises CAKE to appoint Subprocessors in connection with the provision of the Services.
7.10 With respect to each Subprocessor appointed by CAKE, CAKE shall:
(a) ensure that the arrangement between CAKE and the Subprocessor is governed by a written contract including terms which offer at least the same level of protection for Customer Personal Data as those set out in this Section 7 and Schedule 1 and meet the requirements of Article 28(3) of the GDPR; and
(b) be fully liable to the Customer for the acts or omissions of such Subprocessor in relation to any Processing of Customer Personal Data Processed on behalf of CAKE.
7.11 Where CAKE proposes any changes concerning the addition or replacement of any Subprocessor, it shall notify the Customer in writing as soon as reasonably practicable prior to implementing such change specifying:
(a) the name of any Subprocessor which it proposes to add or replace;
(b) the Processing activity or activities affected by the proposed change;
(c) the reasons for the proposed change; and
(d) the proposed date for implementation of the change.
7.12 If within ten (10) days of receipt of a notice under Section 7.11 above the Customer (acting reasonably and in good faith) notifies CAKE in writing of any objections to the proposed change, the Parties shall use their respective reasonable endeavors to resolve the Customer’s objections. Where such resolution cannot be agreed within ten (10) days of CAKE’s receipt of the Customer’s objections, CAKE shall have a right to terminate this Agreement immediately on notice to the Customer.
7.13 The Parties acknowledge that, in the provision of the Services under the Original Agreement, CAKE may transfer Customer Personal Data outside the EEA. Where Customer Personal Data is transferred outside of the EEA, the provisions of Sections 7.14, 7.15, 7.16, and 7.17 shall apply unless:
(a) the transfer is based on the Privacy Shield Scheme in which case the provisions of Section 7.18 shall apply to such transfer; or
(b) the transfer is made to a third country, a territory or one or more specified sectors within that third country, or an international organisation, that has been deemed to provide an adequate level of protection for personal data by the European Commission (in accordance with Article 45 of the GDPR).
7.14 The Parties agree that all terms and provisions of the Standard Contractual Clauses shall be incorporated by reference to this Agreement with the same force and effect as though fully set forth in this Agreement, save that Appendix 1 of the Standard Contractual Clauses shall be replaced by Schedule 1 of this Agreement and Appendix 2 of the Standard Contractual Clauses shall be replaced by Schedule 2 of this Agreement.
7.15 CAKE undertakes not to transfer any Customer Personal Data outside of the EEA without:
(a) Customer’s prior written consent; and
(b) complying with and executing with Customer the Standard Contractual Clauses (as may be amended, updated, replaced or reissued from time to time) in respect of the transfer of Customer Personal Data outside of the EEA.
7.16 CAKE hereby agrees to comply with the data importer obligations set out in the Standard Contractual Clauses in respect of the transfer of Customer Personal Data outside of the EEA in connection with CAKE’s obligations under this Agreement.
7.17 To the extent that the Standard Contractual Clauses are updated, replaced, amended or re-issued by the European Commission (with the updated Standard Contractual Clauses being the New Contractual Clauses) during the term of this Agreement:
(a) the New Contractual Clauses shall be deemed to replace the Standard Contractual Clauses and the Parties undertake to be bound by the terms of the New Contractual Clauses effective as of the date of the update; and
(b) CAKE shall, at Customer’s request, execute a form of the New Contractual Clauses.
7.18 This Section 7.18 applies only to the extent Section 7.13(a) applies.
(a) CAKE represents and warrants:
(i) that it has self-certified to the Privacy Shield and will take all reasonable steps to hold and maintain during the term of the Original Agreement a valid Privacy Shield certification registered with the US Department of Commerce (Certification);
(ii) to Process Customer Personal Data only in accordance with its Certification and the obligations and requirements of the Privacy Shield;
(iii) not, through any wilful act or omission, fail to comply with the requirements of the Privacy Shield or otherwise cause itself to invalidate or cease to hold its Certification; and
(iv) notify Customer as soon as it becomes aware that it has been, or will be, removed from the Privacy Shield List.
7.19 Notwithstanding the foregoing, if the Privacy Shield is held invalid by any court of competent jurisdiction or is otherwise suspended or repealed, CAKE reserves the right, in its absolute discretion, to make any amendments or changes to this Agreement to continue to enable transfers of Customer Personal Data to the US to be made (or continued to be made) without breaching the applicable DP Law.
7.20 Unless otherwise agreed by the Parties in writing, the Parties agree that Customer Personal Data shall be retained by CAKE in compliance with CAKE’s Data Retention Policy.
- Customer Requirements
8.1 Customer shall not and shall procure 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 utilise the Application: (a) participate in, undertake, encourage or display any political hate-mongering, racial, ethnic, fraudulent, misleading or otherwise objectionable content or false or misleading 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, national or international laws, rules or regulations, (d) participate in, undertake, encourage or display any activity that violates the federal CAN-SPAM Act of 2003 (USA) or other applicable state or international SPAM or electronic marketing laws, as amended from time to time; or (e) participate in, undertake, encourage or display any activity that violates DP Law or the data protection or privacy laws of any other applicable jurisdiction.
8.2 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 owed 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.
8.3 If Customer’s domain or IP (Internet Protocol) is ‘blacklisted’ for SPAM pursuant to the CAN-SPAM Act of 2003 (USA), 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 owed to Customer, in all events, in CAKE’s sole discretion.
9.1 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.
9.2 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 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.
9.3 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.
- 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.
- 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.
12.1 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, actions, proceedings, demands, losses, costs (including without limitation court costs), expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, reasonable legal fees and costs that any such indemnified party may incur or suffer as a result of a third party claim, threatened 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.
12.2 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, actions, proceedings, demands, losses, costs (including without limitation court costs), expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, reasonable legal fees and costs that any such indemnified party may incur or suffer as a result of a third party claim, threatened 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.
12.3 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 defence of such claim; and (c) giving the indemnifying party the right to control the defence 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.
- Compliance with Applicable Laws
Customer shall comply with all applicable federal, national, 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.
- Use of Customer’s Trademarks
Customer grants to CAKE for the Term, a non-exclusive, non-transferable licence 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.
15.1 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.
15.2 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.
15.3 Upon termination of this Agreement: Customer shall: (a) discontinue, and shall procure 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, except as prohibited by applicable law or legal process, (a) return to Customer or destroy the Confidential Information of Customer and all copies thereof; (b) return all content in CAKE’s possession and all copies thereof to Customer; and (c) return or destroy Customer Personal Data in accordance with section 7.7(h) above.
- 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 and the Order, the Parties agree that CAKE may elect to resolve any non-payment 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.
17.1 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 other than a CAKE Affiliate (meaning any business entity from time to time controlling, controlled by, or under common control with, CAKE including without limitation Cake Marketing UK Limited), whether directly or indirectly (including, if applicable, any User or Partner accessing the Application by means of an account established by Customer).
17.2 Remedies; Amendment
Except as otherwise specifically provided herein, no remedy referred to in this Agreement is intended to be exclusive. No failure or 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.
Subject to the provisions of this Section, 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 except to a successor in interest by merger, by operation of law, assignment, purchase or otherwise of all or substantially all the business of a Party and may acquire its rights and obligations hereunder, or be an assignee of hereof. CAKE may assign or otherwise transfer its rights and obligations under this Agreement to any CAKE Affiliate.
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.
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.
17.6 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, labour 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).
17.7 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.
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 Section 17.8 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 17.8, as well as any other relief permitted under the law.
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 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.
17.10 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 writing a signed by CAKE, or published by CAKE through the Site or the Application.
Schedule 1: Details of processing of Customer Personal Data
(a) Data Subjects
The Customer Personal Data transferred may concern the following categories of Data Subjects:
- Clients, Affiliate Network Customers, Advertisers, Publishers and Partners
- Other business partners, clients, customers, service providers and vendors of Customer (who are natural persons)
- Other employees, freelancers, contractors or contacts of Customer’s business partners, clients, customers and vendors
- Other employees, agents, advisors, freelancers or contractors of Customer (who are natural persons)
- Customer’s users authorized by Customer to access and use the Services in accordance with the Original Agreement
(b) Categories of Personal Data
The Customer Personal Data transferred may concern the following types / categories of Personal Data:
- Personal details, such as names, user names, passwords, email addresses
- Personal Data derived from the use of the Services by Customer and other authorised users such as records and business intelligence information
- Metadata including sent, to, from, date, time, subject, which may include Personal Data
- Data concerning education, qualification, and profession
- Data concerning business activities
- Family, lifestyle, and social circumstances data
- Financial details
- Location data
- Profiles and identifiers
- Information about opinions, interests, habits, and preferences,
- File attachments that may contain Personal Data
- Survey, feedback, and assessment messages
- Information offered by users as part of support enquiries
- Other data added by the Customer from time to time
(c) Special Categories of Personal Data (if applicable)
The Customer Personal Data transferred will not concern any Special Categories of Personal Data or Personal Data relating to criminal conviction and offences.
(d) Nature / Purpose of processing
The Customer Personal Data transferred is to be Processed by CAKE as necessary to perform the Services pursuant to the Original Agreement and as further instructed by the Customer in its use of the Services. The Customer Personal Data will be Processed for the duration of the Original Agreement, unless otherwise agreed in writing.
(e) Location of processing
The Customer Personal Data is to be processed by CAKE in the following locations: Brazil, European Union, Japan, Singapore, United States of America.
Schedule 2: Details of technical and organisational security measures
CAKE shall maintain and use appropriate safeguards to prevent the unauthorised access to or use of Customer Personal Data and to implement administrative, physical and technical safeguards to protect Customer Personal Data. Such safeguards shall include:
- a) Physical security and access controls;
- b) Logical access controls;
- c) Account management and data access controls;
- d) Password and authentication controls;
- e) Entry controls and entry control audits;
- f) Data availability controls; and
- g) Data separation / segregation controls.