Edelweiss360 Agreement

E360 Agreement

 

This E360 Agreement (the “Agreement”) by and between Above the Treeline, Inc. ("Treeline"), a Delaware corporation, and _____________________________ (“Bookseller”).  By clicking the <Accept> button following the Agreement, Bookseller agrees to be bound by this Agreement with Treeline as of the date hereof (the “Effective Date”).   THE NATURAL PERSON CLICKING THE <ACCEPT> BUTTON REPRESENTS AND WARRANTS THAT S/HE IS AUTHORIZED TO SIGN CONTRACTS ON BEHALF OF, AND TO THEREBY BIND, BOOKSELLER.

 

WHEREAS, Treeline has developed the EDELWEISS360 tool, a web-based computer program designed to provide product marketing and services to Bookseller customers, including all modifications, enhancements, improvements, updates, additions, derivative works, documentation and related material ("E360"), all for use in connection with Treeline’s EDELWEISS ANALYTICS tool and its website located at edelweiss.360, or such other URL as Treeline may from time to time operate (the “Website”), each of which Bookseller already has access under a separate agreement.

 

WHEREAS, Bookseller wishes to access the Website and use E360 thereon.

 

NOW, THEREFORE, in consideration of the mutual covenants and premises herein contained, the parties hereto agree as follows:

 

CUSTOMER DATA.

 

  • Bookseller agrees and acknowledges that E360’s functionality depends upon Bookseller’s input of data that Bookseller has collected in the ordinary course of business arising from and relating to Bookseller customer transactions and activities, which data includes, without limitation, Bookseller customer purchase histories, email addresses, and names (collectively “Customer Data”).

 

  • Bookseller represents and warrants that: (i) it has all, right, title and interest in and to the Customer Data; (ii) Bookseller’s disclosure of Customer Data to Treeline is for the purpose of marketing goods and services to Bookseller customers; (iii) Bookseller’s disclosure of Customer Data to Treeline does not violate any pledge, promise, contract, or agreement between Bookseller and individual Bookseller customers, including without limitation any Bookseller privacy policy or Bookseller-administered POS engagement system; (iv) Treeline’s use of Customer Data does not violate any Bookseller pledge, promise, contract, or agreement; and (v) Bookseller has clearly and prominently informed its customers that Customer Data may be used by Bookseller, and disclosed to its contractors (which term includes Treeline) for their use, to provide marketing services to Bookseller customers.

 

  • Bookseller shall respond to Treeline’s information requests regarding its Customer Data collection, maintenance, and deletion policies and practices. If, in Treeline’s sole discretion, Bookseller does not promptly and reasonably comply with Treeline’s requests regarding Customer Data collection, maintenance, transmission, and deletion, then Treeline may terminate this Agreement and end Bookseller’s access to the Website and E360.

 

  • Bookseller shall indemnify, defend, and hold Treeline harmless from and against any alleged or actual suits, proceedings, actions, proceedings, liabilities, harms, damages, fees (including attorney’s fees), and costs arising from or relating to (a) Customer Data; or (ii) an alleged or actual breach of this Article 0.
  • Please refer to the Edelweiss360 Privacy Policy.
  • Please see our general Edelweiss+ Terms of Service for more information on general user data privacy.

 

Access, License & Data Rights

    • Subject to the terms and conditions of this Agreement, Treeline grants to Bookseller a non-exclusive, non-transferable, non-assignable right to access to use the E360 tool for internal use only
    • The right and license granted pursuant to this Section 1.1 do not include the right to sublicense.
    • Upon the termination of this Agreement, Treeline will revoke Bookseller’s User IDs and passwords and Bookseller will promptly return any and all training/reference materials and all copies thereof to Treeline.
    • Bookseller shall pay to Treeline the amounts identified on Exhibit A on the terms described thereon.

 

Ownership, Confidentiality

      • Bookseller agrees and acknowledges that E360 users, including without limitation, Bookseller, benefit from Treeline’s ability to utilize and commercialize E360- and E360-use-related data. Bookseller, therefore, shall and hereby does grant Treeline a perpetual, irrevocable, worldwide, non-exclusive, assignable, fully-paid up, royalty-free license, with the right to sublicense through multiple tiers, to sell, offer to sell, make, have made, import, use, reproduce, distribute, perform, display, and create derivative works from the Bookseller-originated, -contributed, -generated, and -related information or data arising from or relating to Bookseller’s use of E360 (“E360 Data”).
      • Bookseller agrees and acknowledges that Treeline may disclose or distribute E360 Data to third party publishers who utilize Treeline’s E360 service. Treeline shall not disclose or distribute individually identifiable Customer Data to other third parties without Bookseller’s consent. For the avoidance of doubt, and nothing in this Agreement to the contrary, Treeline has the right to combine E360 Data with data from other booksellers to create the aggregate data disclosed or distributed to other booksellers and third parties.  Treeline’s presentation of this aggregate data does not and will not identify any individual.
      • Bookseller agrees that E360 is the sole property of Treeline and includes valuable trade secrets of Treeline. Bookseller further agrees and acknowledges that this Agreement grants Bookseller no right, title or interest to E360 or any content contained therein.  Bookseller will not at any time take or cause any action that is inconsistent with or would tend to impair Treeline’s rights to E360.
      • Bookseller agrees to treat the E360 as confidential and will not: (i) demonstrate, display, distribute, perform, modify, copy, sell or market E360 to any third party; (ii) publish or otherwise disclose information relating to or resulting from access to or performance of E360 to any third party; or (iii) modify, reuse, disassemble, decompile, reverse engineer or otherwise translate the E360 or any portion thereof.
      • Bookseller understands and acknowledges that from time to time, the Website may be inaccessible or inoperable for various reasons, including equipment malfunctions, upgrades or modifications, or causes beyond Treeline’s control that are not reasonably foreseeable by Treeline, including interruption or failure of telecommunication or digital transmission links, necessary maintenance, hostile network attacks or network congestion or other failures (collectively "Downtime"). Treeline shall use its best efforts to minimize any disruption, inaccessibility and/or inoperability of the Website and in the case of any scheduled Downtime, if applicable, Treeline shall provide twenty-four (24) hour advance notice to Bookseller or such other shorter period of time as Treeline shall reasonably determine.
      • To ensure the security in connection with E360, Treeline will encrypt E360 Data using a Secure Sockets Layer (SSL) certificate at the 1024 level (or at the 512 level for user web browsers that do not support 1024 encryption) or an equivalent standard. To further protect the integrity of E360 Data, E360 will permit Bookseller to control User/Employee IDs, passwords, and site permission levels.

 

No Warranty and Limitation of Liability

    • THE WEBSITE AND E360 ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. TREELINE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE WEBSITE, E360, AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OR OTHER ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE regardless of whether Treeline knows or had reason to know of Bookseller’s particular needs.
    • TREELINE SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE FUNCTIONS CONTAINED IN THE WEBSITE OR E360 WILL MEET BOOKSELLER’S REQUIREMENTS OR WILL OPERATE IN COMBINATIONS OR IN A MANNER SELECTED FOR USE BY BOOKSELLER, OR THAT THE OPERATION OF E360 WILL BE UNINTERRUPTED OR ERROR FREE. BOOKSELLER ACKNOWLEDGES AND AGREES THAT EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, IT HAS NOT RELIED ON ANY EXPRESS OR IMPLIED WRITTEN OR ORAL REPRESENTATION AS AN INDUCEMENT TO ENTER INTO THIS AGREEMENT. BOOKSELLER AGREES AND ACKNOWLEDGES THAT TREELINE DOES NOT CONTROL, AND BEARS NO RESPONSIBILITY FOR, THE ACTIONS OR OMISSIONS OF ANY BOOKSELLER. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF E360 REMAINS WITH BOOKSELLER. IN NO EVENT WILL TREELINE BE LIABLE FOR ANY DAMAGE WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO ACCESS E360, EVEN IF TREELINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    • TREELINE SHALL HAVE NO LIABILITY FOR THIRD PARTY CLAIMS. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, LOST PROFITS, LOSS OF USE OF EQUIPMENT OR LOST CONTRACTS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF E360 OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, EVEN IF SUCH PARTY HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
    • IN NO EVENT SHALL TREELINE BE LIABLE FOR ANY DAMAGE WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE E360, EVEN IF TREELINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, TREELINE’S ENTIRE LIABILITY TO BOOKSELLER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR WARRANTY), WILL BE FIVE HUNDRED DOLLARS ($500)
    • THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IF BOOKSELLER HAS A CLAIM OR A CAUSE OF ACTION ARISING UNDER THIS AGREEMENT AND BOOKSELLER FAILS TO SERVE TREELINE IN CONNECTION WITH THAT CLAIM OR CAUSE OF ACTION PRIOR TO THE TWELVE (12) MONTH ANNIVERSARY OF THE OCCURRENCE OF THE FACTS GIVING RISE TO THE CLAIM OR CAUSE OF ACTION, THEN BOOKSELLER HEREBY WAIVES, AND COVENANTS NOT TO SUE UPON, SUCH CLAIM OR CAUSE OF ACTION.

 

Miscellaneous

    • Either party may terminate this Agreement on thirty (30) days written notice. Articles 0, 2, 3, and 4 shall survive termination of this Agreement.
    • Bookseller hereby grants to Treeline a license to use its name, trademarks and other brand identifiers on the Website and in Treeline marketing materials for the sole purpose of identifying Bookseller as a recipient of the Services provided on the Website and a user of E360.
    • Treeline will not be responsible for any delay or failure in performance caused by acts of God or any government or any other cause beyond Treeline’s reasonable control.

 

Treeline may assign this Agreement. Bookseller may not assign this Agreement without Treeline’s prior written consent.  An assignee of either party, if authorized hereunder, shall have all of the rights and obligations of the assigning party set forth in this Agreement.  Any action in violation of this Section 4.4 shall be null, void, and without effect.

 

 

This Agreement will be governed, construed and enforced in accordance with the laws of the State of Michigan, without regard to its principles of the conflict of laws. Any and all litigation arising from or relating to this Agreement shall be filed and prosecuted before any court of competent subject matter jurisdiction in the Eastern District of Michigan.  The parties hereto consent to the exclusive jurisdiction of such courts over them, stipulate to the convenience, efficiency, and fairness of proceeding in such courts, and covenant not to allege or assert the inconvenience, inefficiency or unfairness of proceeding in such courts. The Parties agree that the Uniform Computer Information Transactions Act (“UCITA”), as adopted in any State or Commonwealth, shall not apply to this Agreement or any performance hereunder and the parties expressly opt-out of the applicability of UCITA to this Agreement.

 

 

This Agreement, including all Schedules and Exhibits hereto, is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior and contemporaneous discussions or agreements (whether written or oral) between the parties regarding such subject matter. For the avoidance of doubt, the subject matter hereof does not include Bookseller’s use of the EDELWEISS+ANALYTICS tool. In case of a conflict between a provision of the body of this Agreement and a specific provision of a Schedule, the provision of the Schedule shall prevail.

 

Treeline may modify or amend this Agreement at any time by notice delivered to Bookseller. Bookseller’s subsequent access of the Website and use of E360 conclusively demonstrates and constitutes Bookseller’s acceptance of the modification or amendment. Bookseller may not modify or amend this Agreement except by a writing accepted by Treeline. If Bookseller issues a purchase order or other document covering the subject matter of this Agreement, it is agreed that such purchase order or document is for Bookseller’s internal purposes only and is not legally effective except to the extent specified in this Agreement.

 

It is the express intention of the parties that Treeline and Treeline personnel are independent contractors and not employees, agents, joint venturers or partners of Bookseller. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Bookseller and Treeline or any Treeline personnel.  Both parties acknowledge that Treeline and Treeline personnel are not Bookseller employees for local, state or federal tax purposes.

 

All notices required or permitted to be given by one party to the other under this Agreement shall be sufficient if sent by electronic communication, personal delivery, overnight delivery service, or certified mail, return receipt requested, to the parties at the respective addresses set forth above or to such other address as the party to receive the notice has designated by notice to the other party.

 

In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and such provision shall be automatically modified so as to be valid, legal, and enforceable and to as nearly as possible reflect the intent of the parties.

 

The waiver by either party of a breach of a default of any provision of this Agreement by the other party will not be construed as a waiver of any prior or succeeding breach of the same or any other provision, nor will any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have thereunder, operate as a waiver of any right, power or privilege by such party.

 

*             *             *