Last Updated: November 28, 2022
This Ollie Customer Agreement (this “Agreement”), effective as of the date of first acceptance (the “Effective Date”), is by and between Next Glass, Inc. (“Next Glass”) and the Customer accepting this Agreement (“Customer”). Next Glass and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
BY ACCESSING AND/OR USING THE OLLIE SERVICES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
A. Next Glass provides certain software services for brewery management and product sales through its software platform (“Ollie”).
B. Customer desires to retain Next Glass to provide such services as selected by Customer through Ollie, and Next Glass is willing to perform such services under the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Next Glass and Customer agree as follows:
1. Ollie Services.
(a) Ollie Order Services. As agreed-to by Customer through Ollie, Next Glass agrees to use commercially reasonable efforts to provide services to help sellers of products (“Sellers”) manage orders for the sale of products to buyers of products (“Buyers”) through the Seller’s Ollie store (each an “Ollie Store”) including, but not limited to, e-commerce, membership management, marketing, promotional and other service offerings selected by Customer, including access to a dynamic platform facilitating management of orders, inventory, payments and invoices (the “Ollie Order Services”).
(i) Ollie Order Account Setup. When Customer signs up for Ollie Order Services, the Customer must indicate whether it will be acting as a Seller, Buyer, or both. The Ollie Order Services permit Sellers the opportunity to create Ollie Store(s). An Ollie Store can only be associated with one Customer, the Seller, who is allowed to create one or more staff accounts (“Staff Accounts”) allowing Seller’s Authorized Users access to the Seller’s Ollie Store(s). Customer remains liable for the acts, omissions and defaults arising from use of Staff Accounts.
(ii) Order Forms; Additional Terms. All agreements for the purchase and sale of products between a Seller and a Buyer consist of (a) the terms specified in an order form generated by the Buyer or by the Seller using the Ollie Order Services and accepted by the other (the “Order Form”), and any other terms agreed to between the Seller and the Buyer in writing (“Additional Terms”). Next Glass is not a party to any Order Form or Additional Terms, and Next Glass is not responsible or liable for and does not guarantee any obligation of a Seller to a Buyer or any obligation of a Buyer to a Seller. Without limiting the foregoing, Next Glass is not responsible or liable for any failure of a Seller or a Buyer to complete any transaction, fulfill an order, and/or pay for products. It is the Seller’s sole responsibility to determine the fees, taxes (including, but not limited to, any applicable liquor tax, liquor distribution branch “mark-up”, federal duties, excise tax, provincial sales tax or products and services tax) and other charges that Seller is obligated to collect and remit in respect of the sale of any products it sells, to set out such amounts in the Order Form, and to subsequently remit the same to the appropriate agency or authority. ANY DISPUTES BETWEEN A BUYER AND A SELLER RELATING DIRECTLY OR INDIRECTLY TO ANY PURCHASE OR SALE OF PRODUCTS, OR ANY ATTEMPTED PURCHASE OR SALE OF PRODUCTS, MUST BE RESOLVED ENTIRELY BETWEEN THE BUYER AND THE SELLER, AND CUSTOMER HEREBY FULLY RELEASES NEXT GLASS FOR, FROM AND AGAINST ANY AND ALL PRESENT AND/OR FUTURE CLAIMS REGARDING ANY SUCH DISPUTES.
(iii) Order Fulfillment. All orders initiated through the Ollie Order Services are accepted, reviewed, and ultimately fulfilled by Customer, and not Next Glass, and all alcoholic beverage sales, fulfillment, transportation, and shipping services conducted through the Ollie Order Services are solely transacted by Customer, and not Next Glass. Next Glass itself does not make available, provide, or sell alcoholic beverages or alcoholic beverage fulfillment, transportation, or shipping services and is not a licensed alcoholic beverage transportation carrier or retailer. Due to direct shipping laws and regulations, the Ollie Order Services may prohibit certain product transactions to certain states, provinces or to prohibited “dry” regions within certain states or provinces. The regulations and court decisions affecting the interstate and/or interprovincial sale and shipment of alcoholic beverages are in constant flux and can change at any time. Therefore, Next Glass may change the jurisdictions to which it is able to permit usage of the Ollie Order Services at any time and without notice to Customer. Next Glass makes no representation as to any laws, rules or regulations of any jurisdiction regarding the sale, fulfillment, transportation, and/or shipping services for alcoholic beverages to any purchaser. It further makes no guarantees regarding the availability, pricing, accuracy, quality, or timely delivery of products ordered through any Ollie Store. If Customer is a Seller, it is Customer’s responsibility to verify Buyer’s location, identification, and age, and to determine whether it is legal and otherwise safe and appropriate to sell and furnish the Buyer with alcoholic beverages. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT NEXT GLASS IS NOT ENGAGED IN OR RESPONSIBLE FOR THE SALE, SERVICE, SHIPPING AND/OR TRANSPORTATION OF ALCOHOLIC BEVERAGES UNDER ANY CIRCUMSTANCES.
(iv) Prospective Buyers. To assist Sellers in managing orders, the Ollie Order Services allow Sellers to create and maintain records about Buyers who have not yet registered. If a Seller creates and/or requests Next Glass to create such records, then Seller represents and warrants that all information Seller provides about a Buyer is current, accurate and complete, and that Seller has all necessary authority and consents from the applicable Buyer to collect, use and disclose that information to Next Glass in connection with the Ollie Order Services. Further, if a Seller provides credit card information for a Buyer, Seller confirms that Seller has the written authorization fromof the applicable Buyer to use that credit card information for payment for Seller’s products.
(v) Seller Liquor License Information. As part of the Ollie Order Services, Next Glass may make available to Customer certain non-commercial information about Sellers’ liquor licenses (“Seller Information”) based upon periodic retrievals of such Seller Information. By accessing and/or using such Seller Information, Customer understands and agrees: (i) Next Glass conducts only periodic checks of Seller Information and such Seller Information may not be accurate, current, and/or up to date, (ii) Seller Information is provided to Customer for non-commercial and general reference use only; and (iii) Customer accepts all responsibility and liabilty associated with any access and/or use of such Seller Information. For the avoidance of doubt, Next Glass hereby disclaims and waives all responsibility and liability relating to Seller Information, including, but not limited to, Customer’s access and/or use thereof.
(b) Ollie Ops Services. As agreed-to by Customer through Ollie, Next Glass agrees to use commercially reasonable efforts to provide services to help manage brewery operations including, but not limited to, recipe management, recordkeeping, TTB reporting, raw material forecasting, brew log entries, scheduling, and task management (the “Ollie Ops Services,” together with the Ollie Order Services, the “Ollie Services”). Next Glass makes no representation as to any laws, rules or regulations of any jurisdiction regarding brewery operations, permitting, recordkeeping and/or TTB reporting, and Customer acknowledges and agrees that it is and shall remain solely responsible and liable for compliance with all of the foregoing.
2. Grant of Rights; Restrictions and Responsibilities.
(b) Updates. Next Glass may, in its sole discretion, issue updates, bug fixes or other changes to the Ollie Services (each an “Update”), and Next Glass will use commercially reasonable efforts to notify Customer of an Update that may materially impair Customer’s use of the Ollie Services.
(c) Restrictions. Customer and each Authorized User shall not use the Ollie Services for any purposes beyond the scope of the access granted in this Agreement. Except as otherwise expressly set forth in this Agreement, Customer shall not, directly or indirectly, and shall not permit Authorized Users or any third party to: (i) copy, modify, or create derivative works of the Ollie Services in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Ollie Services; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Ollie Services or any software, documentation or data related to the Ollie Services in whole or in part; (iv) remove any proprietary notices from the Ollie Services; (v) use the Ollie Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or (vi) utilize the Ollie Services to create, develop, enhance, or modify any competing product or service. Customer is responsible and liable for all uses of the Ollie Services resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of its Authorized Users, and any act or omission by any such Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer.
(d) Suspension. Next Glass may suspend Customer’s and/or any Authorized User’s access to any portion or all of the Ollie Services if Next Glass reasonably determines that (a) there is a disruption, security risk, threat or attack on the Ollie Services or to any other customer or vendor of Next Glass; (b) Customer, or any Authorized User, is using the Ollie Services for fraudulent or illegal activities; (c) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (d) Next Glass’s provision of the Ollie Services to Customer or any Authorized User is prohibited by applicable law; (e) any vendor of Next Glass has suspended or terminated Next Glass’s access to or use of any third-party services or products required to enable Customer to access the Ollie Services; or (f) Customer fails to timely pay any undisputed invoices.
(e) In-App Promotions. If, as part of the Ollie Services, Customer elects to promote Customer’s brand through the Next Glass Untappd application (each instance an “In-App Promotion”), Customer understands and agrees (i) Customer must complete each In-App Promotion setup and supply all of Customer’s applicable promotional materials to Next Glass in a timely manner and in accordance with Next Glass’ instructions; (ii) Customer must use Customer’s allocated In-App Promotions within the annual service term in which such In-App Promotions were allocated to Customer; and (iii) Customer will not receive any credit and/or refund relating to an In-App Promotion to the extent Customer fails to meet the requirements of this Section 2(e).
(a) Fees. In consideration of the provision of Ollie Services, Customer shall pay the monthly Ollie Services fees in accordance with the subscription elected by Customer during Customer’s Ollie account setup process, without offset or deduction in US dollars (the “Fee”). Customer understands and agrees, unless otherwise agreed-to by the parties in writing, (a) Customer’s initial service term (“Initial Service Term”), and each additional service term for each Ollie Service (together with the Initial Service Term a “Service Term”) will be one (1) year, (b) the Fee for the entire Initial Service Term is due and payable at the beginning of the Initial Service Term (though Customer may be able to pay such Fee in monthly installments), (c) Customer will not receive a refund of any Fee for the Initial Service Term, including if Customer elects to downgrade Customer’s Ollie Services, or if Customer terminates this Agreement prior to the end of such Initial Service Term. Customer understands and acknowledges that the Fee and Ollie Services bundles, package structures and/or pricing details may change at any time upon advance notice to Customer in accordance with this Agreement.
(b) Payment Processing. In connection with usage of the Ollie Services, Customer may provide credit card information to one of Next Glass’s designated third-party service providers, who will store such credit card information separately from the Ollie Services in order to facilitate reoccurring payment transactions, and/or utilize certain third-party payment services. Next Glass has no responsibility or liability for any credit card information and/or third-party payment services, and Customer shall be solely responsible and liable for any credit card information and related transactions to facilitate payment of orders. Customer understands and agrees that Customer is responsible and liable for all activity in connection with such third-party service providers, whether initiated by Customer or not (including all transactions, disputes, refunds, reversals, claims, fines associated with such activity, and use of the Ollie Services in a manner prohibited under this Agreement). The foregoing notwithstanding, Customer hereby authorizes Next Glass, or its designee, to charge Customer’s Ollie account for such non-refundable Fee on a recurring basis consistent with this Agreement and Customer’s tier level using the payment information Customer previously provided to Next Glass. If Customer and/or Authorized Users provide Next Glass with Customer’s credit card information, Customer hereby authorizes Next Glass to automatically charge the provided credit card(s) for all applicable charges. No chargebacks are available or permitted.
(c) Late Payments. Except for invoices that Customer disputes in good faith, all late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Next Glass for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and expenses. In addition to all other remedies available under this Agreement or at law (which Next Glass does not waive by the exercise of any rights hereunder), if the Customer fails to pay any undisputed amounts when due hereunder, then Customer will be in material breach of this Agreement and Next Glass may suspend the provision of any Services and/or terminate this Agreement in accordance with Section 9(c).
(d) Taxes. Customer shall be responsible for all sales, use, excise and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Next Glass’s income, revenues, gross receipts, personnel, real or personal property or other assets.
(e) Promotional Rates.
(i) Untappd for Business. If Customer is an existing customer of Untappd for Business (“UTFB”), Customer may receive a promotional rate for the Ollie Services. If Customer cancels its agreement with UTFB, Customer will forfeit such promotional rate and will be responsible for the full fees for the applicable Service Term.
(ii) Ekos. If Customer is an existing customer of Ekos, Customer may receive a promotional rate for the Ollie Services. If Customer receives such promotion, Customer represents and warrants to Next Glass that the information Customer provides to Next Glass regarding such promotion including, but not limited to, the existence of Customer’s agreement with Ekos, is true and accurate.
4. Confidential Information; Nondisclosure.
(a) Nondisclosure. Each party (“Receiving Party”) shall not disclose, publish, or disseminate the Confidential Information (as defined below) of the other party (“Disclosing Party”) to anyone other than such Receiving Party’s employees and contractors with a need to know such Confidential Information, and who are bound by a written agreement to protect the confidentiality of such Confidential Information no less protective than the provisions of this Section 4, or as required by applicable law. Each party agrees to take the same measures used to protect its own Confidential Information of a similar nature, but in no event less than a reasonable degree of care, to prevent any unauthorized use, disclosure, publication, or dissemination of the other party’s Confidential Information. Each Receiving Party agrees to use and disclose the Disclosing Party’s Confidential Information for the sole purpose of carrying out such Receiving Party’s rights and obligations under this Agreement and shall be responsible and liable for all such usage and/or disclosure. Receiving Party may disclose Confidential Information if and to the extent that such disclosure is required by applicable law, regulation, or court order, provided that, as permitted by applicable law, Receiving Party (i) uses reasonable efforts, at Disclosing Party’s expense, to limit the disclosure by means of a protective order or a request for confidential treatment and (ii) provides Disclosing Party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure.
(b) “Confidential Information” means confidential and proprietary information of a party, whether in oral, written or other form, which is marked “confidential” or “proprietary,” or which should reasonably be deemed to be confidential. Confidential Information does not include information that: (1) is now or subsequently becomes generally available to the public through no fault or breach of the Receiving Party; (2) the Receiving Party can demonstrate to have had rightfully in its possession prior to disclosure by the Disclosing Party; (3) is independently developed by the Receiving Party without the use of any Confidential Information of the Disclosing Party; or (4) the Receiving Party rightfully obtains such information form a third party without a breach of confidentiality.
(c) Return of Confidential Information. In addition to each party’s obligations upon the expiration or termination of this Agreement, upon either party’s request, the other party shall return all of the requesting party’s Confidential Information in its possession or under its control in accordance with the requesting party’s directions and shall not thereafter retain any copies of the other party’s Confidential Information.
5. Intellectual Property Rights.
(a) Customer Data. Except as set forth in this Agreement, Customer owns all right, title and interest in and to all data or other information made available to Next Glass by Customer or Authorized Users (“Customer Data”). By providing Customer Data to Next Glass, Customer represents and warrants that it has the right to do so and Next Glass has the right to use such Customer Data in the performance of its duties relating to the operation of the Ollie Services without violating and/or infringing upon the rights of any third party.
(b) License to Customer Data. Subject to the terms and conditions of this Agreement, Customer and each Authorized User hereby grant to Next Glass a non-exclusive, royalty-free, perpetual, irrevocable, transferrable, worldwide license to access, revise, reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as necessary for Next Glass to provide the Ollie Services to Customer.
(c) Ollie Services. Customer acknowledges and agrees that the Ollie Services, Materials, and any copies, updates, and/or derivative works thereof, along with the right to make, have made, practice, employ, exploit, use, develop, reproduce, copy, distribute copies, publish, license, and/or create works derivative of any of the foregoing, exclusively belong to and are the property of Next Glass. Customer further acknowledges and agrees that: (i) Ollie, the Materials, and any other existing technology, methods, processes, techniques, software (including source code, object code and any portions thereof) content, ideas, information and related intellectual property (including without limitation all patent, copyright, trademark, trade secret and other intellectual-property or proprietary rights therein) of Next Glass, any derivatives or improvements to the foregoing created or developed by Next Glass (alone or with others), or otherwise any of the foregoing created, developed by or on behalf of Next Glass outside of this Agreement, that is later used in the performance of the Ollie Services, or (ii) generally applicable tools, concepts, processes, models, techniques, software, and the like developed or created in connection with the Ollie Services without reliance on the Confidential Information of Customer exclusively belong to and are the property of Next Glass (the “Next Glass IP”). The parties agree that Next Glass will own all right, title and interest in and to the Next Glass IP. Except for the limited rights granted to Customer in this Agreement, all other rights, title and interest in the Next Glass IP are reserved by Next Glass.
(d) Aggregated Statistics and Application Monitoring. Notwithstanding anything to the contrary in this Agreement, Next Glass may monitor Customer’s and each Authorized User’s access and use of the Ollie Services and collect and compile meta-data, data and information related to Authorized User’s access and use of the Ollie Services that is and can be used by Next Glass for application monitoring, pricing, and Next Glass’s technology management purposes (“Application Monitoring Data”). The same data may be aggregated and anonymized to compile statistical and performance information related to the provision and operation of the Ollie Services (“Aggregated Statistics”). Further, Customer acknowledges that Next Glass may compile Aggregated Statistics based Customer Data. Customer agrees that Next Glass may (a) make Aggregated Statistics publicly available in compliance with applicable law, and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify Customer, any Authorized User, or Customer’s Confidential Information. Customer and each Authorized User hereby grant Next Glass a non-exclusive, perpetual, irrevocable, transferrable, royalty-free, worldwide license to access, revise, reproduce, distribute, and use and display Customer Data incorporated within the Aggregated Statistics. Customer acknowledges that, as between Customer and each Authorized User on the one hand, and Next Glass on the other hand, Next Glass owns all right, title, and interest, including all intellectual property rights therein, in and to the Aggregated Statistics, and Application Monitoring Data.
(a) Customer Indemnification. Customer shall indemnify, defend and hold harmless Next Glass, its affiliates, and its and their respective employees, principals, agents, licensors, successors and assigns from and against any and all costs, damages or losses (including reasonable attorneys’ fees and expenses) (collectively “Losses”) arising out of or resulting from a third party claim, demand, suit or proceeding (each, a “Claim”) : (i) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights; or (ii) based on Customer’s or any Authorized User’s (A) negligence or willful misconduct, (B) use of the Ollie Services and/or Materials in a manner not authorized by this Agreement, (c) use of the Ollie Services and/or Materials in combination with data, software, hardware, equipment or technology not provided by Next Glass or authorized by Next Glass in writing, (d) modifications to the Ollie Services and/or Materials not made by Next Glass; or (e) based on Customer’s failure to maintain appropriate federal, state, provincial, or local alcoholic licenses or Customer’s failure to comply with any federal, state, provincial, or local alcohol sale, transportation, and/or licensing law, regulation or ordinance; provided that Customer may not settle any Claim against Next Glass unless Next Glass consents to such settlement, and further provided that Next Glass will have the right, at its option, to defend itself against any such Claim or to participate in the defense thereof by counsel of its own choice.
(b) Next Glass Indemnification. Next Glass shall indemnify, defend and hold harmless Customer, its employees, principals and agents from and against any Losses arising out of or resulting from any Claim that use of the Ollie Services or Materials in accordance with this Agreement infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Customer promptly notifies Next Glass in writing of the Claim, cooperates with Next Glass, and allows Next Glass sole authority to control the defense and settlement of such claim. If such a Clam is made or appears possible, Customer agrees to permit Next Glass, at Next Glass’s sole discretion, to (i) modify or replace the Ollie Services and/or Materials, or component or part thereof, to make it non-infringing, or (ii) obtain the right for Customer to continue use of the Ollie Services and/or Materials. If Next Glass determines that neither alternative is reasonably available, Next Glass may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer, and refund a pro rata portion of Customer Fees for such Ollie Services. This Section 6(b) will not apply to the extent that the alleged infringement arises from: (A) use of the Services and/or Materials in combination with data, software, hardware, equipment, or technology not provided by Next Glass or authorized by Next Glass in writing; (B) modifications to the Ollie Services and/or Materials not made by Next Glass; or (C) Customer Data.
(c) Sole Remedy. THIS SECTION 6 SETS FORTH CUSTOMER’S SOLE REMEDIES AND NEXT GLASS’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE OLLIE SERVICES OR MATERIALS INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
7. Warranties and Disclaimer.
(a) Mutual Warranties. Each party represents and warrants to the other that: (i) it has the requisite power and authority to execute and deliver this Agreement and perform its obligations herein: (ii) this Agreement has been duly authorized, executed, and delivered by each party, and is a legal, valid, and binding obligation of each party, enforceable against such party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance and other similar laws and principles of equity affecting creditors’ rights and remedies generally; (iii) this Agreement does not violate, conflict with, result in a breach of the terms, conditions, or provisions of, or constitutes a default or an event of default under any other agreement to which such party is a party and (iv) such party will at all times comply with applicable law.
(b) Next Glass Warranties. Next Glass represents and warrants to Customer that it will perform and provide all Ollie Services in a professional and competent manner in accordance with this Agreement and applicable law.
(c) Customer Warranties. Customer represents and warrants to Next Glass that (i) if located in the US, Customer has obtained a federal permit from the federal alcohol and tobacco tax and trade bureau and/or relevant state regulatory authority to manufacture, bottle, distribute and/or sell its alcoholic beverage products and shall provide a copy of such license(s) to Next Glass upon request; (ii) if located in British Columbia, Canada, Customer has obtained licensure from the B.C. Liquor Distribution Branch and/or B.C. Liquor Distribution Branch to manufacturer, bottle, distribute and/or sell its alcoholic beverages and shall provide a copy of such license to Next Glass upon request; (iii) Customer shall file and maintain all reports, licenses and applications as may be required pursuant to Customer’s business as required by applicable federal, state, provincial, and local laws and regulations in order to manufacture, market and sell alcoholic beverages; (iv) Customer shall keep and maintain complete and accurate records of alcohol production and sales in compliance with federal, state and local laws and regulations; and (v) Customer is in compliance and shall continue to comply with all federal, state and local tax laws and regulations and with all federal, state and local laws and regulations relating to alcohol permitting and licensing, for so long as this Agreement is valid and enforceable.
(d) Disclaimer. THE OLLIE SERVICES, INCLUDING BUT NOT LIMITED TO SELLER INFORMATION, ARE PROVIDED “AS IS” AND NEXT GLASS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. NEXT GLASS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. NEXT GLASS MAKES NO OTHER WARRANTY OF ANY KIND THAT THE OLLIE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. CUSTOMER UNDERSTANDS AND AGREES (i) THAT NEXT GLASS DOES NOT PROVIDE ANY TAX, LEGAL, FINANCIAL, OR OTHER PROFESSIONAL ADVICE, (ii) CUSTOMER SHOULD NOT INTERPRET THE SERVICES AND/OR ANY COMMUNICATION FROM NEXT GLASS AS PROVIDING TAX, LEGAL, FINANCIAL, OR OTHER PROFESSIONAL ADVICE, AND (iii) CUSTOMER SHOULD SEEK SUCH ADVICE FROM LICENSED PROFESSIONAL AS APPLICABLE. THE OLLIE SERVICES MAY PERMIT CUSTOMER TO LINK TO OTHER WEBSITES, SERVICES OR RESOURCES ON THE INTERNET, AND OTHER WEBSITES, SERVICES OR RESOURCES MAY CONTAIN LINKS TO THE OLLIE SERVICES. WHEN CUSTOMER ACCESSES THIRD PARTY RESOURCES ON THE INTERNET, CUSTOMER DOES SO AT CUSTOMER’S OWN RISK. THESE OTHER RESOURCES ARE NOT UNDER NEXT GLASS’ CONTROL, AND CUSTOMER ACKNOWLEDGE THAT NEXT GLASS IS NOT RESPONSIBLE OR LIABLE FOR THE CONTENT, FUNCTIONS, ACCURACY, LEGALITY, APPROPRIATENESS OR ANY OTHER ASPECT OF SUCH WEBSITES OR RESOURCES. THE INCLUSION OF ANY SUCH LINK DOES NOT IMPLY NEXT GLASS’ ENDORSEMENT OR ANY ASSOCIATION BETWEEN NEXT GLASS AND THIRD PARTY OPERATORS. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT NEXT GLASS WILL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH THE USE OF OR RELIANCE ON ANY SUCH CONTENT, GOODS OR SERVICES AVAILABLE ON OR THROUGH ANY SUCH WEBSITE OR RESOURCE.
8. Limitation of Liability.
(a) IN NO EVENT SHALL NEXT GLASS BE LIABLE TO CUSTOMER FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT NEXT GLASS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) Direct Damages. IN NO EVENT SHALL NEXT GLASS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAID BY CUSTOMER TO NEXT GLASS DURING THE LESSER PRIOR TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9. Term, Termination and Survival.
(a) Term. This Agreement shall commence as of the Effective Date and continue in effect until terminated pursuant to its express provisions (the “Term”).
(b) Termination. Either party may terminate this Agreement effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party: (i) materially breaches this Agreement and/or the applicable Order Form(s), and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; (ii) becomes insolvent or admits its inability to pay its debts generally as they become due; (iii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) is dissolved or liquidated or takes any corporate action for such purpose; (v) makes a general assignment for the benefit of creditors; or (vi) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Failure to Pay. Notwithstanding anything to the contrary in this Agreement, Next Glass may terminate this Agreement before the expiration of the Term immediately upon written notice to Customer if Customer fails to pay any amount when due hereunder and such failure continues for ten (10) days after Customer’s receipt of written notice of nonpayment. If Customer’s failure to pay any amount due hereunder gives Next Glass the right to terminate this Agreement, then Next Glass may, at its sole option, and without waiving such termination right, suspend performance under this Agreement and/or any Order Form and provide Customer with an opportunity to bring its payment obligations current.
(d) Effect of Termination. Upon termination of this Agreement, Customer shall immediately discontinue all use of the Ollie Services and Customer shall immediately pay Next Glass all fees accrued through the effective date of termination. Payment of this final invoice shall not bar any remedy, legal, equitable, or otherwise available to Next Glass, and no expiration or termination will affect Customer’s obligation to pay all fees that may have become due before such expiration or termination or entitle Customer to any refund.
10. General Provisions.
(a) Updates to this Agreement. This Agreement may be revised at any time for any reason, and Next Glass may provide notice of these changes by any reasonable means, including by providing notice through the Ollie Services and/or referring to the “Last Updated” legend at the top of this Agreement. Except to the extent that express consent to any revised Agreement is required under data protection law, by continuing to access, browse or use the Ollie Services, Customer confirms its acceptance of the revised Agreement and all the terms incorporated herein by reference.
(b) Entire Agreement. This Agreement, including all attachments incorporated by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
(c) Notice. All notices, requests, consents, claims, demands, and waivers under this Agreement (each, a “Notice”) must be in writing and addressed to the other party at its address set forth below (or to such other address that the receiving party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by email, personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Next Glass may deliver Notices to Customer in accordance with the contact information Customer provides through Ollie. Customer may deliver Notices to Next Glass at: Next Glass Inc., 21 South Front Street, Wilmington, NC 28401.
(d) Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(e) Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party.
(f) Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
(g) Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Next Glass. Any purported assignment or delegation in violation of this Section 10 shall be null and void. No assignment or delegation shall relieve Customer of any of its obligations under this Agreement. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and assigns.
(h) Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
(i) No Third-Party Beneficiaries. This Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(j) Choice of Law. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of North Carolina, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of North Carolina.
(k) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Agreement, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
(l) Force Majeure. Next Glass shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Next Glass including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of sixty (60) days, Customer shall be entitled to give notice in writing to Next Glass to terminate this Agreement.
(m) Survival. Any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive