This Provider Agreement (“Provider Agreement”) contains the terms under which NutmegLabs, Inc. (“Nutmeg”) agrees to grant Provider access to and use of Nutmeg’s digital booking services and solutions. The parties agree as follows:
- 1.1. “Affiliate" means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where “control" means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.
- 1.2. “Agreement" means this Provider Agreement together with each Service Addendum.
- 1.3. “Chargeback" means a request to invalidate a payment that a Customer files directly with (a) his or her debit or credit card company; (b) his or her debit or credit card-issuing bank; or (c) any other entity that provides payment services.
- 1.4. “Confidential Information" means information in any form, whether oral or written, of a business, financial or technical nature which is disclosed by a party (“Disclosing Party”) in the course of this Agreement and which the recipient (“Receiving Party”) reasonably should know is confidential, but excluding the information listed in Section 12.2. The terms of this Agreement (including pricing) are each party’s Confidential Information.
- 1.5. “Customer(s)" means one or more of any person or entity that reserves or purchases a Provider Service from Provider’s business, where the purchase is made through or entered into the Nutmeg Platform .
- 1.6. “Effective Date" means the date when Provider creates Provider Account in the Nutmeg Platform.
- 1.7. “Fraudulent Charge" means a credit or debit card charge by a Customer that is determined by the card company or payment processor to be fraudulent.
- 1.8. “Nutmeg Content" means all information, data, products, materials, and all other content, software and services made available on or through the Nutmeg Platform or otherwise generally provided to Provider by Nutmeg.
- 1.9. “Nutmeg Fees" means the Commissions, Subscription fees and other amounts payable to Nutmeg.
- 1.10. “Nutmeg Platform" means the Nutmeg Platform offering that consists of (a) an online service to enable online bookings (referred to as "Nutmeg Booking Website"), (b) a comprehensive product suite, including any Nutmeg mobile or similar application for use in connection with such online service and related Nutmeg Content, and (c) all services to enable connectivity with Provider and/or other Third parties (referred to as "Nutmeg APIs").
- 1.11. “Provider" means the entity identified in this agreement
- 1.12. “Provider Content" means (a) each and all of the text, graphics, logos, video, audio, information, data, software, and other content and materials relating to the Provider Services which are produced or provided by or for Provider, and (b) any and all copyrights, trademarks and other intellectual property and proprietary rights related thereto, as now or hereafter constituted and in any form or media.
- 1.13. "Provider Online Channel(s)" means one or more of any website, mobile application or other online platform of Provider or its Affiliates which offer Provider Services.
- 1.14. “Provider Service(s)" means one or more of Provider’s activities or other goods or services that the Provider offers to Customers using the Nutmeg Platform, or otherwise manages using the Nutmeg Platform.
- 1.15. “Service Addendum" means an addendum attached to this Agreement, which contains terms specific to a purchased Nutmeg Platform offering.
- 1.16. “Voucher" means a confirmation of purchase provided by Nutmeg to a Customer after processing the Customer’s purchase.
2. THE SERVICES
Subject to Provider’s full compliance with this Agreement (including this Service Addendum) at all times, Nutmeg grants to Provider a limited non-exclusive, non-sublicensable, non-transferable, non-assignable and revocable right and license during the Term to access and use the Nutmeg Platform solely for its internal business operations and for purposes of (a) processing sales made directly from Provider Online Channels and (b) using web and mobile tools to assist Provider in managing its business. The use of the Nutmeg Platform for any purpose not expressly permitted by this Agreement (including this Service Addendum) is prohibited and will be deemed to be a material breach of this Agreement (including this Service Addendum).
2.2 Provider Account
Provider must set up an account with Nutmeg in connection with Provider’s use of the Nutmeg Platform ("Provider Account"). Provider will safeguard Provider Account user authentication credentials in its possession or under its control and is responsible for acts and omissions of its Provider Account users relating to this Agreement as though they were Provider’s own. Provider is responsible for all activities that occur under the Provider Account and for the accuracy, quality and integrity of the Provider Content that Provider or its users Feedback into the Nutmeg Platform.
2.3 Use of the Nutmeg Platform.
The rights granted to Provider to use each Nutmeg Platform offering are set forth in the applicable Service Addendum, and are subject to any use limitations that may be set forth in the applicable Service Addendum.
2.3.1. Paid Plans.
If Provider has purchased Nutmeg’s Paid Plans, the Nutmeg Paid Plan Addendum attached hereto will apply.
Nutmeg may modify or update the Nutmeg Platform at any time without prior notice.
2.5 Changes to Agreement.
From time to time Nutmeg may change the terms of this Master Agreement or a Service Addendum. Nutmeg reserves the right to make any and all such changes. Nutmeg will strive to provide advance notice of any change that materially alters the terms of this Master Agreement or a Service Addendum.
3. SALE AND PERFORMANCE OF PROVIDER SERVICES
3.1 Merchant of Record.
Provider agrees that it is the sole merchant of record of all Provider Services, and that Nutmeg’s activities are undertaken solely to assist Provider in facilitating the sale of such Services. Nutmeg will not be a party to any agreement between Provider and the Customer and Provider is directly responsible for any and all breaches or other liabilities occurring in connection with the Provider Services.
3.2 Collection of Payment from Customers.
Provider appoints Nutmeg as its agent to collect credit and debit card payments on its behalf from Customers for purchases of Provider Services made through or entered into the Nutmeg Platform. Nutmeg will use third party payment processors for all credit and debit card transactions as determined solely by Nutmeg, and this Agreement will be subject to the requirements of such processors and of applicable law.
Nutmeg will provide each purchasing Customer with a Voucher and directions on how to use a Voucher to redeem the purchased Provider Service. Provider agrees to fully and faithfully accept and honor all Vouchers sold to Customers and to perform all Provider Services in accordance with the terms and conditions as stated in the Voucher at the time of purchase. Provider will accept Vouchers presented on mobile devices unless otherwise agreed upon in writing.
Provider owns all individual Customer and sales information collected by Provider in connection with the Provider Services sold through Provider Online Channels or other sales of Provider. Provider understands that Nutmeg collects the foregoing information into a database through the Nutmeg Platform. Provider hereby grants to Nutmeg and its successors and assignees a non-exclusive, worldwide, fully paid, assignable, transferable, sublicensable, and irrevocable license (a) during the Term to access, reproduce and otherwise use such information in connection with providing the Nutmeg Platform and performing this Agreement, and (b) during and following the Term to access, reproduce and otherwise use such information on an anonymized and aggregated basis in connection with Nutmeg’s business. For clarity, Nutmeg will not sell or disclose identifiable information about Provider or Provider’s Customers to a competitor of Provider.
4. FEES; COLLECTION AND REMITTANCE; CHARGEBACKS; REFUNDS
Nutmeg shall be paid a commission (“Commission”) on all of the Provider Services purchased through the Nutmeg Booking Website. Commission is 3.0% of total retail price purchased by Customer.
4.1.2 Payment fee
Nutmeg shall be paid credit card processing fee (“Payment fee”) on all of the credit and debit card payment through the Nutmeg Platform. Payment fee is 3.0% of total retail price purchased by Customer.
4.1.3 Fee payment.
Nutmeg will withhold and retain the Nutmeg Fees for its own account from Customer Payments (defined below) and remit any net Provider Payment (defined below) to Provider as described below. Nutmeg also reserves the right to invoice Provider for Nutmeg Fees in Nutmeg’s sole discretion. Payment of each invoice is due within thirty (30) days of the invoice date. Provider will reimburse any reasonable costs and expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Nutmeg to collect any amount that is not paid when due.
4.2 Collection and Remittance.
Nutmeg will typically fully receive payments collected by Nutmeg from Customers when credit and debit card payment made through Stripe, and withhold a total amount of payments until Customer successfully participate on Provider service. After the end of participated month, Nutmeg will remit to Provider, the total amount of the payments collected by Nutmeg from Customers for the Provider Services (“Customer Payments”) minus all Commissions, Payment fees and other Nutmeg Fees and amounts due to Nutmeg, as well as all Customer refunds, Chargebacks and Fraudulent Charges. All such payments by Nutmeg are collectively referred to as “Provider Payments”. Unless otherwise provided in the Service Addendum. Provider Payments will be made within thirty (30) days after the end of participated month. All Provider Payments will be converted into and made in U.S. Dollars, unless otherwise agreed upon by the parties in another agreement. Nutmeg is not responsible for the collection or payment of any incidentals from Customers. Nutmeg has the right to recoup any wire fees due to incorrect, incomplete bank information provided by the Provider, and may exercise the right to do so.
With respect to payments collected by Nutmeg for purchases of Provider Services through the Nutmeg Platform, Nutmeg will collect and withhold from Customers all applicable Transaction Taxes and will remit such Transaction Taxes to Provider as part of the Provider Payments. “Transaction Taxes" means all applicable sales, use taxes, value added taxes (VAT), and other transactional taxes for purchases of Provider Services. Provider is responsible for filing all returns and remitting all taxes and other governmental charges in connection with the sale or performance of the Provider Services (including all Transaction Taxes, whether Nutmeg collected the Customer payment or Provider collected the Customer payment directly) and any payments accrued or received by Provider for the Provider Services, and Provider agrees to fully indemnify, hold harmless and defend Nutmeg and its Affiliates and contractors from all liabilities related to taxes and other governmental charges. Provider also agrees to fully comply with all applicable laws and to timely file and remit all taxes and other charges to the appropriate tax or other authorities. Nutmeg further may be legally required to report the Provider Payments and other payments made to Provider to tax or other governmental authorities under applicable law.
4.4. Chargebacks and Fraudulent Charges.
4.4.1. Handling of Chargebacks.
In the event a Customer who purchased the Provider Services initiates a Chargeback, Provider agrees that Nutmeg will deduct the full amount of the Chargeback, as well as any associated fees, fines, or penalties, from Customer Payments for the next Provider Payment due to Provider. If Provider’s next Provider Payment is insufficient, Provider agrees to pay Nutmeg the full Chargeback balance upon invoicing as set forth in Section 4.1. Nutmeg agrees to use reasonable efforts to investigate and, if appropriate, challenge suspect Chargebacks. Provider agrees to use reasonable efforts, at Provider’s expense, to assist Nutmeg, at Nutmeg’s request, in the investigation of any such suspect Chargebacks. If Nutmeg, in its sole judgment, determines that a separate agreement sufficiently protects it from a particular Chargeback, Nutmeg may, in its sole discretion, waive Provider’s obligation to compensate Nutmeg directly.
4.4.2. Excessive Chargebacks.
If Nutmeg determines that Provider is incurring excessive Chargebacks, Nutmeg may establish controls or conditions governing Provider’s account, such as: (a) establishing new processing fees, (b) delaying payouts, (c) refusing the award of Chargebacks, or (d) terminating or suspending services.
4.4.3. Fraudulent Charges.
In the event of a Fraudulent Charge, Provider agrees that Nutmeg will deduct the full amount of the Fraudulent Charge, as well as any associated fees, fines, or penalties, from Customer Payments for the next Provider Payment due to Provider. If Provider’s next Provider Payment is insufficient, Provider agrees to pay Nutmeg the full balance upon invoicing as set forth in Section 4.1.
Provider may provide refunds or adjustments to Customers for their purchases of Provider Services made through the Nutmeg Platform using refund functionality enabled by Nutmeg and accessible through the Nutmeg Platform. Funds to cover refunds will be deducted from Provider’s payout balance during each remittance of Provider Payments. In the event of insufficient funds to cover the amount of the refund, Provider’s credit card on file may be charged. Nutmeg may retain from Provider or Customers any Nutmeg Fees and applicable processing fees on refunded transactions.
4.5.2 Cancellation and Fraudulent Charge.
In the event of a Cancellation or Fraudulent Charge to a Customer, (a) Nutmeg will not charge or retain any applicable Commission on the applicable transaction, and (b) Nutmeg will not be responsible for paying any amount to the Provider for such transaction, except to the extent otherwise expressly provided in a Service Addendum.
5. PROPRIETARY RIGHTS
5.1 Nutmeg Property and Rights.
Provider acknowledges and agrees that Nutmeg and its successors and assignees are and will remain the exclusive owners in all jurisdictions of the Nutmeg Platform and Nutmeg Content, including all patents, copyrights, trademarks, trade secrets, moral rights and other intellectual property rights and proprietary rights related thereto, excluding only the Provider Content (together, “Nutmeg Property and Rights”). All rights not expressly granted to Provider under this Agreement are hereby reserved by Nutmeg, and no license or other rights are being granted by Nutmeg by implication, estoppel or otherwise.
5.2 Provider Content.
Nutmeg acknowledges and agrees that, as between Nutmeg and Provider, Provider is and will remain the exclusive owner in all jurisdictions of the Provider Content, including all patents, copyrights, trademarks, trade secrets, moral rights and other intellectual property rights and proprietary rights related thereto. Provider hereby grants to Nutmeg a worldwide, nonexclusive, fully-paid up, royalty-free, transferable right and license (with right to sublicense through multiple tiers) during the Term to copy, reproduce, distribute, disclose, publish, broadcast, communicate, display and/or perform (whether publicly or otherwise), host, store, prepare derivative works from, translate, modify or combine with other data or information or content, and/or otherwise use any and all of the Provider Content and to have others exercise such rights and license on behalf of Nutmeg in connection with the Provider Services.
5.3. Provider Feedback.
Nutmeg welcomes any Feedback that Provider may provide Nutmeg concerning improvements to the Nutmeg Platform (“Feedback”). Feedback excludes Provider’s Confidential Information. By providing Feedback to Nutmeg, Provider agrees that all Feedback becomes Nutmeg’s exclusive property, and Provider hereby assigns to Nutmeg all its rights to Feedback, including all intellectual property rights in Feedback. At Nutmeg’s request and expense, Provider agrees to execute documents and take such further action as Nutmeg may reasonably request to assist it in acquiring, perfecting, or maintaining intellectual property rights in Feedback.
6. RESTRICTED ACTIVITIES.
Provider agrees that it will not directly or indirectly:
- (a) infringe upon or misappropriate any Nutmeg Property and Rights, or remove or alter any proprietary notices or labels;
- (b) take any act which undermines the integrity or functionality of or interferes with, or transmits or uploads any content or code which contains a virus, Trojan horse, worm or other harmful component, or circumvents or disables any security or data protection measures for any part of the Nutmeg Platform;
- (c) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Nutmeg Property and Rights;
- (d) circumvent or disable any technological or security features or measures in the Nutmeg Platform;
- (e) rent, lease, or sublicense the Nutmeg Platform or otherwise provide unauthorized access thereto;
- (f) reproduce, distribute, transmit, publish, display, perform, disclose, prepare derivative works from, translate, modify or combine or use any of the Nutmeg Property and Rights, excepting only uses expressly permitted by this Agreement;
- (g) upload or submit or transmit any Provider Content or other material which (i) infringes upon or misappropriates the intellectual property rights or other legal rights of any third party, (ii) constitutes unlawful, obscene, harassing or offensive content or activity or (iii) breaches or violates any privacy or confidentiality or other legal obligations; or
- (h) frame, mirror or link to any of the Nutmeg Platform without the express written consent of Nutmeg in its sole discretion.
7.1 Indemnification by Nutmeg.
Nutmeg agrees to fully indemnify, defend and hold harmless Provider and its officers, directors, employees, representatives and agents (collectively, “Provider Indemnified Parties”) from and against any and all liabilities, losses, judgments, damages or expenses, including but not limited to reasonable attorney’s fees and expenses (collectively, “Losses”), incurred by any Provider Indemnified Party arising out of any third party claim, proceeding or suit (each, “Claim”) that alleges that the use of the Nutmeg Platform by the Provider Indemnified Parties infringes or misappropriates any United States, patent, copyright, trademark or other proprietary rights of such third party, if (a) the applicable Provider Indemnified Party gives Nutmeg prompt written notice of the Claim; (b) Nutmeg has full and complete control over the defense and settlement of the Claim; (c) the applicable Provider Indemnified Party provides assistance in connection with the defense and settlement of the Claim as Nutmeg may reasonably request; and (d) the applicable Provider Indemnified Party complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing materials).
If Provider’s or their respective agents’ use of the Nutmeg Platform is, or in Nutmeg’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a Claim under Section 7.1, then Nutmeg may either: (a) procure the continuing right of Provider to use the Nutmeg Platform; (b) replace or modify the Nutmeg Platform in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, Nutmeg is unable to do either (a) or (b), Nutmeg may (c) terminate Provider’s rights to the Nutmeg Platform under this Agreement and provide Provider with a prorated refund of prepaid fees, if applicable, covering the remainder of the term of this Agreement.
Nutmeg will have no obligation under this Section 7.1 for any infringement or misappropriation to the extent that it arises out of or is based upon (a) the combination, operation, or use of the Nutmeg Platform with any software, services, tools, hardware, equipment, supplies, accessories, or any other materials or services not furnished by Nutmeg or recommended in writing by Nutmeg if such infringement would have been avoided but for such combination, operation, or use; (b) designs, requirements, or specifications for the Nutmeg Platform that Provider required or provided, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (c) use of the Nutmeg Platform outside of the scope of the license granted to Provider; (d) any modification of the Nutmeg Platform not made or authorized in writing by Nutmeg where such infringement would not have occurred absent such modification; or (e) the Provider Content.
7.2. Indemnification by Provider.
Provider agrees to fully indemnify, defend and hold harmless Nutmeg and its officers, directors, employees, representatives, agents, distribution partners and their respective successors and assigns (collectively, “Nutmeg Indemnified Parties”), from and against any and all Losses incurred by any Nutmeg Indemnified Party arising out of any Claim relating to or arising out of (a) any of the Provider Services; (b) Provider’s breach of any provision, warranty or representation in this Agreement; (c) Provider’s intentional acts or omissions or any form of negligence or other similar wrongdoing; (d) any infringement or misappropriation of intellectual property or other rights by any Provider Content; or (e) Provider’s failure to comply with any applicable laws, if (i) the applicable Nutmeg Indemnified Party gives Provider prompt written notice of the Claim; (ii) Provider has full and complete control over the defense and settlement of the Claim; provided, however, that Provider shall not settle any Claim that admits liability or places any obligation on a Nutmeg Indemnified Party; (iii) the applicable Nutmeg Indemnified Party provides assistance in connection with the defense and settlement of the Claim as Provider may reasonably request; and (iv) the applicable Nutmeg Indemnified Party complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing materials).
Neither Nutmeg nor Provider will be liable for any form of equitable or implied indemnification to the other with respect to this Agreement, the subject matter of this Agreement or otherwise.
8. WARRANTIES AND DISCLAIMERS
8.1. Mutual Warranties.
Each party represents and warrants that it has power and authority to enter this Agreement, the person or entity executing this Agreement has the power and authority to bind the party to this Agreement, and its entry into and performance of this Agreement will not breach any contractual obligations with third parties.
NOTWITHSTANDING ANY CONTRARY PROVISION, AND TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW:
8.2.1.THE NUTMEG PLATFORM AND ALL COMPONENTS THEREOF, AND ALL ADVICE, INFORMATION AND MATERIALS, ARE BEING PROVIDED TO PROVIDER AND ANY RELATED PERSON OR ENTITY “AS IS" AND WITH ALL FAULTS. ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED OR STATUTORY) OF NUTMEG OR ANY AFFILIATE ARE HEREBY EXCLUDED AND DISCLAIMED, INCLUDING BUT NOT LIMITED TO (a) ANY AND ALL IMPLIED OR OTHER WARRANTIES OF TITLE OR NON-INFRINGEMENT, (b) ANY AND ALL IMPLIED OR OTHER WARRANTIES OF PROVIDERABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, USEFULNESS OR SUITABILITY, AND (c) ANY REPRESENTATION OR WARRANTY THAT THE NUTMEG PLATFORM OR ANY PART THEREOF WILL BE SECURE, RELIABLE, TIMELY, UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE; OR THE RESULTS THAT MAY BE OBTAINED FROM ANY OF THE FOREGOING.
8.2.2.ANY ACCESS TO OR USE OF THE NUTMEG PLATFORM SHALL BE AT PROVIDER’S SOLE RISK AND PROVIDER IS RESPONSIBLE FOR EVALUATING AND BEARING ALL RISKS ASSOCIATED WITH SUCH ACCESS AND USE.
9. LIMITATIONS OF LIABILITY.
NOTWITHSTANDING ANY CONTRARY PROVISION OR ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY OF ANY KIND, TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, NUTMEG WILL NOT BE LIABLE TO PROVIDER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS OF PROFIT, REVENUE, DATA, BUSINESS OR USE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE SUBJECT MATTER OF THIS AGREEMENT. IN NO EVENT WILL NUTMEG’S CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING ANY RELATED CLAIMS, ACTIONS OR CAUSES OF ACTION AND ANY CLAIMS FOR INDEMNIFICATION, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT OF NUTMEG FEES PAID TO NUTMEG FOR THE PROVIDER SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE EVENT FIRST GIVING RISE TO THE RELEVANT CLAIM, ACTION OR CAUSE OF ACTION. PROVIDER UNDERSTANDS AND AGREES THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND ARE REASONABLE AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THE FOREGOING LIMITATIONS SHALL NOT BE INCREASED BY MULTIPLE CLAIMS, ACTIONS OR CAUSES OF ACTION WHETHER SIMILAR OR NOT.
Provider agrees to maintain in full force and effect adequate liability insurance coverage in connection with the Provider Services at all times during the Term and for a period of two (2) years following the end of the Term. Provider agrees at the request of Nutmeg to name Nutmeg and its Affiliates as additional insureds on such insurance policies. This can generally be done easily and without additional cost by contacting the insurance broker or insurance company. Provider’s compliance with this Section 10 does not limit its indemnification or other obligations under this Agreement.
11. TERM AND TERMINATION
The term of this Agreement shall be one (1) month from on the Effective Date (“Initial Term”). Upon expiration of the Initial Term the parties may renew this Agreement for successive renewal periods (each, a “Renewal Term”) automatically. The Initial Term and each Renewal Term are referred to in this Agreement as the “Term”.
Either party can terminate this Agreement for cause (including any material breach of this Agreement by the other party) by immediate written notice to the other party.
11.3. Effects of Termination.
Upon termination of this Agreement for any reason: (a) each license to a Nutmeg Platform offering granted by Nutmeg to Provider will immediately terminate; (b) Provider will purge all copies of all Nutmeg Content from any computer, server or other hardware and each party will return the other party’s Confidential Information; (c) each party’s respective rights and obligations under Sections 3, 4, 5, 7, 8, 9, 10, 11.3, 12 and 13 of this Provider Agreement and relevant portions of each Service Addendum, including the payment to Nutmeg of all compensation obligations incurred prior to the effective date of termination, each shall survive and remain in full force and effect; (d) Provider shall continue to fulfill all unused Vouchers, and all terms of this Agreement with respect to the fulfillment of unused Vouchers (except all licenses granted by Nutmeg) shall survive termination until their applicable expiration; and (e) all claims or causes of action in existence as of the date of termination shall survive.
The Receiving Party will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or use of the Disclosing Party’s Confidential Information and the disclosure of the Disclosing Party’s Confidential Information to third parties without the Disclosing Party’s prior written consent. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the Receiving Party’s Affiliates, consultants, contractors, representatives and agents (including financial advisors, accountants and attorneys) (collectively, “Representatives”) who are acting on behalf of the Receiving Party and are bound by, or are otherwise protected by legal privilege or confidentiality and non-disclosure commitments on terms no less protective of the Confidential Information than the terms of this Agreement. If a Receiving Party is legally compelled to disclose the Disclosing Party’s Confidential Information, the Receiving Party shall (a) provide prompt written notice (if legally permissible) to the Disclosing Party so that the Disclosing Party can seek a protective order or other appropriate remedy, and (b) limit any such disclosure to the extent of the legal requirement, and the disclosed information will remain Confidential Information despite such disclosure.
Confidential Information excludes information which: (a) is or becomes (through no act or omission of the Receiving Party in breach of this Agreement), generally available to the public; (b) becomes known to the Receiving Party or any of its Affiliates on a non-confidential basis through a third party who is not subject to an obligation of confidentiality with respect to that information; (c) was lawfully in the possession of the Receiving Party or any of its Affiliates prior to such disclosure; (d) is independently developed by the Receiving Party or any of its Affiliates; or (e) the Disclosing Party agrees is not confidential or may be disclosed, to the extent of that consent.
13.1. Provider Warranty.
Without limiting Provider’s other obligations, Provider represents and warrants that (a) it will provide the Provider Services in a professional and safe manner at all times; (b) it will not infringe upon or misappropriate the intellectual property or other rights of any other person or entity with respect to the subject matter of this Agreement; (c) Provider has all necessary rights to grant the licenses granted by it to Nutmeg, including the right to use the name, likeness, and identifying information of any identifiable person in the Provider Content; and (d) Provider possesses all licenses and registrations necessary to conduct its business and to provide all Provider Services to be offered herein.
13.2. Governing Law.
This Agreement and all matters relating to or in connection with this Agreement shall be governed by the laws of the State of California, United States of America, without regard to any conflict of laws principles that require the application of the laws of a different jurisdiction.
Notwithstanding any contrary provision hereof, all disputes, claims, controversies and matters relating to or in connection with this Agreement (or the breach thereof) or any transactions hereunder shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in San Francisco, California, USA before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.
Subject to Section 13.3, any other actions (if any) arising out of or related to this Agreement must be brought exclusively in the federal or state courts located in the County of San Francisco, California USA, and each of the parties agrees that such courts shall have exclusive jurisdiction and venue for any such actions. Nutmeg also may seek injunctive or other equitable relief for breach of this Agreement in any court of competent jurisdiction wherever located. The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable attorney’s fees and costs from the other party.
Provider may not assign, transfer, delegate or sublicense this Agreement or any rights or obligations hereunder, either voluntarily or by operation of law or means of a merger, consolidation or sale of stock or other ownership interest or other change of control or ownership, and any such purported act shall be null and void. Subject to the foregoing restrictions this Agreement shall benefit and be binding upon each of the parties and their respective successors and permitted assignees. Other than in the case of indemnified parties, there shall be no third party beneficiaries of this Agreement.
All notices and other communications (collectively “Notices”) required to be given or delivered to a party shall be in writing and addressed to the party at its principal corporate offices or as otherwise designated by notice hereunder. All Notices shall be deemed to have been given or delivered upon: (a) personal delivery; (b) three (3) days after deposit in the United States mail by certified or registered mail (return receipt requested); (c) two (2) business days after deposit with an internationally recognized overnight courier; or (d) one (1) business day after transmission by electronic mail. All Notices and other communications required or permitted under this Agreement shall be made in the English language.
This Agreement (including all Product Schedules and the Service Order) constitutes the entire understanding and agreement with respect to its subject matter and supersedes all prior and other current agreements and discussions between the parties, provided that any confidential or proprietary information disclosed previously to Provider shall be part of Nutmeg’s Confidential Information. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. In the event that any of the provisions of this Agreement shall be held to be invalid or unenforceable by a competent court or arbitrator, the remaining portions hereof shall remain in full force and effect and such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such provision valid and enforceable. When the context requires, the plural shall include the singular and the singular the plural, and any gender shall include any other gender. No provision of this Agreement shall be interpreted or construed against any party because such party or its counsel was the drafter thereof. Notwithstanding any contrary provision of this Agreement, whenever the words “include," “includes" or “including" or any other variation are used in this Agreement, such words shall be deemed, unless the context otherwise requires, to be followed by the words “without limitation." Section headings are only for convenience and are not part of this Agreement.
The Service Order may be executed in counterparts, each of which will be deemed to be an original and together will constitute one and the same agreement. The Service Order may also be executed and delivered by electronic mail and such execution and delivery will have the same force and effect of an original document with original signatures.
Nutmeg Paid Plan Addendum
This document is a Service Addendum to the Provider Agreement between Nutmeg and Provider. Any capitalized terms not otherwise defined in this Service Addendum have the meaning given in such Provider Agreement. The parties agree as follows:
- 1.1 "Additional Services" means, with respect to this Service Addendum, specific available features for Paid Plans and Paid Features by Nutmeg in addition to Nutmeg Platform
- 1.2. "Channel Manager" means, with respect to this Service Addendum, automated distribution solution for Provider with Distribution Channels via Nutmeg APIs by Nutmeg.
- 1.3. "Distribution Channels" means, with respect to this Service Addendum, Travel Agents, Online Travel Agents or other Resellers who have system connectivity with Nutmeg.
- 1.4. "Marketing Automation" means, with respect to this Service Addendum, advanced features of automated email and its recommendations for Provider by Nutmeg.
- 1.5. "Premium Plan" means, with respect to this Service Addendum, one of Paid Plans for Provider defined by Nutmeg.
- 1.6. "Private Marketplace" means, with respect to this Service Addendum, advanced features of Nutmeg Booking Website for Provider by Nutmeg.
- 1.7. "Paid Plans and Paid Features" means, with respect to this Service Addendum, monthly subscription services for Provider by Nutmeg .
- 1.8. "Special Support" means, with respect to this Service Addendum, advanced and dedicated support for Provider defined by Nutmeg.
- 1.9. "Standard Plan" means, with respect to this Service Addendum, one of Paid Plans for Provider defined by Nutmeg.
2. NUTMEG PAID PLANS AND FEATURES
Subject to Provider’s full compliance with this Agreement (including this Service Addendum) at all times, Nutmeg grants to Provider a limited non-exclusive, non-sublicensable, non-transferable, non-assignable and revocable right and license during the Term to access and use Nutmeg Additional Services solely for its internal business operations and for Nutmeg Platform. The use of the Nutmeg Additional Services for any purpose not expressly permitted by this Agreement (including this Service Addendum) is prohibited and will be deemed to be a material breach of this Agreement (including this Service Addendum).
2.2. Setup and Support.
Nutmeg will provide assistance with setup and activation, as well as support for the Nutmeg Paid Plans, according to Nutmeg’s standard policies as made available or provided to Provider.
2.3. Subscription Fees.
The Subscription Fees are charged on a recurring basis (except where may otherwise have been agreed with Provider). Accordingly, where applicable, Nutmeg will attempt to automatically renew the Paid Plans on a monthly basis (each month being a “Billing Period”), and will automatically charge Provider the applicable Subscription Fees using the payment method Provider have on file within Provider Account. If Provider wish to stop using Paid Plans, Provider need to notify Nutmeg within Provider Account at least two (2) US business days prior to the start of the next Billing Period. Nutmeg will then remove Provider access to such Paid Plans from the end of Provider’s last Billing Period.
Nutmeg may modify or update the Nutmeg Paid Plans and its Additional Services at any time without prior notice.
3. STANDARD PLAN
3.1. Additional Services.
Provider who subscribes Standard Plan can use the Additional Services offering that consists of (a) Private Marketplace, (b) Marketing Automation during the Billing Period.
Nutmeg will charge Provider with one hundred (100) in U.S. Dollars subscription fee with applicable taxes
4. PREMIUM PLAN
4.1. Additional Services.
Provider who subscribes Premium Plan can use the Additional Services offering that consists of (a) Private Marketplace, (b) Marketing Automation, (c) Channel Manager with up to hundred (100) bookings in a month, (d) Special Support during the Billing Period
Nutmeg will charge Provider with three hundred (300) in U.S. Dollars subscription fee with applicable taxes.
5. ADD ON FEATURES
5.1. Additional Services.
Provider who subscribes Add on Features can use the Additional Services offering that consists of Review Feature during the Billing Period
Nutmeg will charge Provider with fifty hundred (50) in U.S. Dollars subscription fee with applicable taxes.