1. Parties and the Agreement
1.1 Supplier: VINX2 WINERY SOFTWARE, INC, a Delaware corporation (Supplier), is a subsidiary of Vintrace Holdings Pty Ltd, an Australian Company, which has developed a proprietary winemaking and winery management software solution (vintrace). Supplier provides access to vintrace through its website http://www.vintrace.com/tus/ (Website) and the vintrace mobile app (Mobile App) as hosted software as a service (Service).
1.2 Customer: Access to and use of the Service is provided by Supplier to a party which signs and returns a quote provided by Supplier (Quote) or subscribes to the Service through the Website or Mobile App, and commences paying the applicable Fee (Customer).
Capitalized terms in this Agreement have the following meanings:
Acceptance is defined in clause 1.4;
Additional Fees means any fees payable by Customer for goods and/or services that are not part of the Service.
Aggregate/Anonymous Data means: (i) data generated by aggregating Customer Data with other data so that results are non-personally identifiable with respect to Customer or its Authorized Users; and (ii) learnings, logs, and data regarding use of the Service;
Agreement is defined in clause 1.3;
Authorized Users means the number of user(s) permitted to use the Service as set out in Customer’s Selected Plan;
Business Day means a day which is not a Saturday, Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of California are authorized or required by law or other governmental action to close;
Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;
Commencement Date means the date of Acceptance;
Confidential Information includes confidential information about the business, structure, programs, processes, methods, operating procedures, activities, products and services, trade secrets, know how, financial, accounting, marketing and technical information, customer and supplier lists (including prospective customer and supplier information), ideas, concepts, know-how, Intellectual Property Rights, technology, and other information whether or not such information is reduced to a tangible form or marked in writing as "confidential";
Consequential Loss means any indirect, special, punitive, consequential or exemplary loss or damage (including without limitation any loss of profits, loss of business or anticipatory profits, loss of use, loss of revenue, loss of goodwill, or any interruption of business);
Contract Year means initially the 12-month period from the Commencement Date and then each subsequent 12-month period during the Term ending on an anniversary of the Commencement Date;
Consumer Price Index (CPI) means most current Consumer Price Index – San Francisco Metropolitan Area as published by the United States Department of Labor, Bureau of Labor Statistics;
CPI Increase means the annual increase in the CPI based on a comparison of the most recently published calendar quarter as compared against the same quarter in the previous year;
Customer is defined in clause 1.2;
Customer Account means Customer's account pursuant to which it can access the Service;
Customer Environment means the computing environment of Customer including all hardware, software, information technology and telecommunications services and infrastructure on or through which the Service are accessed or used;
Data means all of the information, documents and other data, including any Customer or Customer personnel personal information, provided to Supplier by Customer including as uploaded to the Service or the Website or Mobile App;
Dispute is defined in clause 10.1;
Dispute Notice is defined in clause 10.1(a);
Fee means the fee set out in the Quote or if there is no Quote, as specified in the Selected Plan;
Fee Review is defined in clause 5.2(a);
Force Majeure Event means an event which is beyond a Party's reasonable control, including fire, storm, flood, earthquake, explosion, accident, act of the public enemy, terrorist act, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, transportation embargo, and strike by employees of a third person other than a subcontractor of a Party, but in each case, only if and to the extent that the non-performing party is without fault in causing the event, and the event, or its effect could not have been prevented by reasonable precautions;
Harmful Code is defined in clause 4.6;
Hosting Provider means a third-party provider engaged by Supplier to host the Service;
Initial Meeting is defined in clause 10.1(a);
Initial Term is defined in clause 11.1;
Intellectual Property Rights means all intellectual property rights including: (a) trademarks, service marks, trade names, brand names, logos, artwork, symbols, designs, trade dress, packaging and other proprietary indicia of goods and services and the goodwill associated therewith, whether registered, unregistered or arising by applicable Laws, as used by a party as a brand, trade name, and mark, whether alone or as part of a larger composite, all licenses, registrations and applications for registration of such marks, including intent-to-use applications, and all issuances, extensions and renewals of such registrations and applications; (b) internet domain names and social media URLs; (c) original works of authorship in any medium of expression, whether or not published, all copyrights (whether registered, unregistered or arising by applicable Laws), copyrightable subject matter including advertising texts, promotional materials, web page designs, all copyright licenses, whether express or implied, registrations and applications for registration of such copyrights, and all issuances, extensions and renewals of such registrations and applications; (d) circuit layouts, trade secrets, know-how, confidential information, patents, invention and discoveries; and (e) other proprietary rights owned by a party, whether or not currently registered or registerable, and all applications and registrations thereof;
JAMS is defined in clause 10.1;
Laws means applicable laws, regulations, and rules of the State of California and the United States;
Liability means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);
Mobile App is defined in clause 1.1;
New Module means an enhancement to the Service that adds new functionality and/or additional modules which is not present in the version of the Service licensed by Customer at the Commencement Date.
New Version means updates, bug fixes, minor enhancements to existing functionality of the Service and excludes New Modules; 10.1(a)
Party means a party to the Agreement and Parties means all of them;
Personal Information has the same meaning as in the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020.
Personnel means, in relation to a Party, the officers, employees, contractors (including subcontractors) and agents of that Party;
Plan means a subscription plan for the Service as detailed on the Website or Mobile App;
Pre-Existing Material is defined in clause 7.1;
Quote is defined in clause 1.2;
Regulatory Requirements means any compliance, controls, methods, reporting, etc., required by legislation, regulation, regulators in regard to Customer's business under applicable Laws;
Renewal Term is defined in clause 11.2;
Selected Plan means the Plan selected by Customer as specified in the Quote or in Customer Account;
Service is defined in clause 1.1 and includes any New Modules;
Service Material is defined in clause 7.1(b);
Supplier is defined in clause 1.1;
Term is defined in clause 11.1;
Variation is defined in clause 3.2(c);
vintrace is defined in clause 1.1;
Website is defined in clause 1.1.
3. Service, Plans and Restrictions
3.1 Service and License: In consideration of Customer paying the Fee, during the Term, Supplier hereby grants Customer a non-exclusive, non-sublicensable, non-transferable license to use the Service during the Term solely for Customer’s internal business purposes in connection with its use of the Service.
3.2 Plans: Customer acknowledges and agrees that:
3.3 Restrictions: Customer must not:
3.4 Customer Failure or Delay. Supplier is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under the Agreement, including without limitation its obligations under clause 4.2 and 6 below.
3.5 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by clause 3.3 or 6.1, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Service and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Supplier of any such actual or threatened activity.
3.6 New Versions: Customer acknowledges and agrees:
3.7 New Modules: Customer acknowledges and agrees:
3.8 Hosting: Customer acknowledges and agrees that:
3.8 Suspension: Supplier reserves the right to suspend Customer’s access to the Service: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of the Agreement, including without limitation failure to pay any amounts due to Supplier.
3.10 Compliance: By accessing and/or using the Service, Customer acknowledges and agrees:
4. Security and Data
4.1 Security: Customer acknowledges that:
4.2 Environment: Customer:
4.3 Data: Customer grants Supplier and its Personnel a limited license to copy, transmit, store and back-up or otherwise access or use the Data or make reference to any Intellectual Property Rights in the Data:
4.4 Data Permissions: Customer represents and warrants that any and all Data supplied by Customer or otherwise accessed by Supplier through the provision of the Service is the sole and exclusive property of Customer or Customer has secured any and all authorizations and rights to use the Data as applicable.
4.5 Back-Up: Customer acknowledges and agrees that:
4.6 Harmful Code: The Parties will each use all reasonable commercial endeavours to avoid introducing any virus or other contaminant (including any bugs, worms, logic bombs, Trojan horses or any other self-propagating program) that may infect or cause damage to the Service or other disrupt the access and use of the Service (Harmful Code) including by utilizing industry standard protection mechanisms;
4.7 Restoration of Data: If any Data is corrupted or lost due to introduction of Harmful Code, Supplier’s sole liability to Customer will be to restore Customer’s Data into the Service from the last recorded back-up.
4.8 Anonymous Data: Customer acknowledges and agrees that Supplier will have the right to generate Aggregate/Anonymous Data and Supplier owns all Intellectual Property Rights in that Aggregate/Anonymous Data. The Supplier may use Aggregate/Anonymous Data for any business purpose during or after the Term of this Agreement (including without limitation to develop and improve Supplier’s other products and services and to create and distribute reports and other materials). For clarity, Supplier will only disclose any Aggregate/Anonymous Data externally in a de-identified (anonymous) form that does not identify Customer or any Authorized Users, and that is stripped of all persistent identifiers (such as device identifiers, IP addresses, and cookie IDs). Customer is not responsible for Supplier’s use of Aggregate/Anonymous Data.
5. Price, Invoicing and Payment
5.1 Invoicing and Payment:
5.2 Fee Review:
5.3 Late Payment. If Customer fails to make any payment when due, then in addition to all other remedies that may be available:
5.4 Refund Policy. All Fees paid are non-refundable. No refunds or credits for partial months, quarters or years of Service will be refunded to Customer upon cancellation. Customer may upgrade or downgrade its Plan at any time. If Customer downgrades its Plan, Supplier does not issue refunds or credits for partial months of Service.
5.5 No Deductions or Setoffs. Customer shall pay all amounts payable to Supplier under this Agreement to Supplier in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason any deduction or withholding of tax as may be required by applicable Laws.
5.6 Taxes: All Fees and other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Supplier’s income. If Supplier is legally required to collect or pay any tax from or on behalf of Customer, Customer agrees to pay such tax amount to Supplier on the same terms as the Fee.
5.7 Purchase Orders: If Customer requires a purchase order, Customer is responsible for providing the applicable purchase order at the time of purchase. Customer acknowledges and agrees to the extent of any inconsistency between the Agreement and any terms and conditions of Customer’s purchase order, the Agreement will prevail. The Parties acknowledge and agree that any pre-printed terms and conditions attached to or on the back of any purchase order will not apply to the Agreement.
6. Customer Warranties and Obligations
6.1 Customer Warranties: Customer warrants that:
6.2 Additional Customer Obligations. In addition to Customer’s other obligations hereunder, Customer shall:
6.3 Non-Solicitation. Customer shall not, and shall not assist any other person to, directly or indirectly, canvass, employ, induce or attempt to employ, induce, solicit or entice away from Supplier any employee or contractor that was employed by or contracted to Supplier during the Term and for one year following the expiration thereof]. In the event of a violation of this clause 6.3, Supplier will be entitled to liquidated damages equal to the compensation paid by Supplier to the applicable employee or contractor during the prior six months.
7. Intellectual Property Rights
7.1 Supplier Materials:
8. Audit and Monitoring
8.1 Right to Audit:
9. Confidential Information
9.1 Supplier Obligations: Supplier will not and will ensure its Personnel do not, disclose Customer's Confidential Information to any third party; use all reasonable endeavours to protect Confidential Information from any unauthorized disclosure, and only use the Confidential Information for the purpose for which it was disclosed by Customer and not for any other purpose.
9.2 Customer Obligations: Customer will not and will ensure its Personnel do not, disclose Supplier's Confidential Information to any third party; will use all reasonable endeavours to protect Confidential information from any unauthorized disclosure; will only use the Confidential Information for the purpose for which it was disclosed or provided by Customer to Supplier and not for any other purpose; and will promptly notify Supplier of any unauthorized use or disclosure of Supplier’s Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure.
9.3 Exclusions: The obligations in clauses 9.1 and 9.2 do not apply to Confidential Information that:
9.5 Enduring obligations: The obligations under this clause will survive termination of the Agreement.
10. Dispute Resolution
10.1 Disputes: If there is a dispute between the Parties regarding the Agreement (Dispute), the Parties agree to the following dispute resolution procedure:
10.2 Other actions: Nothing in clause 10.1 shall prohibit either of the Parties from filing an action in the courts of San Francisco County, California, for emergency or injunctive relief where deemed necessary by the filing Party.
11.1 Term: The Agreement will commence on the Commencement Date and continue for an initial term as specified in the Quote or Selected Plan (Initial Term) together with any subsequent Renewal Term unless terminated earlier in accordance with the provisions of clause 12 (Term).
11.2 Renewal: At least 20 Business Days prior to the expiration of the Initial Term or any Renewal Term (as applicable), either Party may notify the other that it does not wish to renew, in which case the Agreement will expire at the end of the then current Contract Year. If a Party has not given notice pursuant to this clause, the Agreement is automatically renewed for a further 12-month period (Renewal Term).
12.1 Rights of termination: Either Party may terminate the Agreement, if the other Party:
12.2 Supplier rights: Supplier may immediately suspend Customer's access to the Service and/or terminate the Agreement by written notice if:
12.3 Consequence of termination: On termination of the Agreement:
13. Limitation of Liability and Disclaimers
13.1 Supplier Warranties.
13.2 Liability limitation.
13.3 Commercial Relationship: The Service is provided for commercial purposes only. Customer acknowledges that it is not obtaining the Service for personal or household use and that this Agreement is not an agreement for personal consumer services.
14.1 Except to the extent caused by Supplier’s gross negligence or willful misconduct, Customer is liable for and agree to indemnify, defend and hold Supplier, and Supplier’s officers, directors, employees, agents, Personnel, successors, and assigns harmless for and against any and all Claims and Liabilities resulting directly or indirectly from:
14.2 Customer agrees to co-operate with Supplier (at its own expense) in handling any Claims that arise as a result of the actions in clause 14.1.
14.3 If a third party claims that the Service provided by Supplier infringes its Intellectual Property Rights, then Supplier indemnifies Customer for all direct costs, Claims and Liabilities arising from such claim and, if the quiet enjoyment of the Service is prevented, Supplier will use all reasonable commercial efforts to secure the right for Customer to continue to use the Service or replace or modify the Service to make the Service non-infringing.
This indemnity is given subject to:
14.4 This clause will survive termination of the Agreement.
15.2 Publicity: Customer consents to Supplier using advertising or publicly announcing that it has undertaken work for Customer and grants Supplier a limited license to Customer’s name or logo(s) in such advertisements or announcements in whatever medium or format Supplier uses.
15.3 Email: Customer acknowledges that Parties are able to correspond via electronic mail. Customer releases Supplier from any Claim that may result of any unauthorized copying, recording, reading or interference with that document or information after transmission, for any delay or non-delivery of any document or information and for any damage caused to Customer's system or any files by a transfer.
15.4 Relationship of 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.
15.5 Assignment: The Agreement is personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under the Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld); provided, however, that Supplier may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Notwithstanding the foregoing, Supplier may delegate the performance of the Services hereunder to subsidiaries or contractors, provided Supplier controls the delivery of such Services to Customer and remains responsible to Customer for the delivery of such Services.
15.6 Severance: If any provision (or part of it) of the Agreement is held to be unenforceable or invalid in any jurisdiction, it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If a provision (or part of it) of the Agreement cannot be interpreted as narrowly as necessary to allow it to be enforceable or valid, then the provision (or part of it) must be severed from the Agreement and the remaining provisions (and remaining part of the provision) are valid and enforceable.
15.7 Force Majeure: Supplier will not be liable for any delay or failure to perform its obligations under the Agreement if such delay is due to any Force Majeure Event. If Supplier is delayed from performing its obligations due to such a circumstance for a period of at least two months, it may terminate the Agreement by giving Customer five (5) Business Days' notice in writing.
15.8 Notice: Any notice, request, demand, claim, waiver, or other communication required or permitted to be given by either Party to the other Party under the Agreement will be in writing addressed to the other Party as follows:
If to Supplier:
VINX2 Winery Software, Inc. dba vintrace
548 Market St, #62071
San Francisco, CA 94104
If to Customer: To the address and e-mail address indicated in the Quote, or, if no Quote is available, then to the address and e-mail address given in Customer Account.
Notices sent in accordance with this clause will be deemed effectively given: (1) when received, if delivered by hand, with signed confirmation of receipt; (2) when received, if sent by a nationally recognized overnight courier, signature required; (3) when sent, if by email (with confirmation of transmission), if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (4) on the 3rd day after the date mailed by certified or registered mail, return receipt requested, postage prepaid unless such receipt is returned as non-deliverable.
15.9 Jurisdiction & Applicable Law: This Agreement is governed by the laws of the State of California and of the United States. The Parties agree that California law and controlling United States federal laws, without regard to choice- or conflicts-of-law provisions of any jurisdiction, will govern any action related to this Agreement. The Parties submit to personal jurisdiction in the courts of San Francisco County, California and the Federal Courts having jurisdiction thereover for any dispute arising under or as a result of this Agreement.
15.10 Entire Agreement: This Agreement and the documents expressly referred to in it, including in Section 1.3, represent the entire agreement between Customer and Supplier and supersede any prior agreement, understanding or arrangement between the Parties, whether oral or in writing.
15.11 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
15.12 Waiver. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will 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.
15.13 Survival. This clause 15 will survive termination of the Agreement.
Last updated: October 12th 2021
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