Section 10(B) - Additional Terms for DecoPac.com Customers
DecoPac provides an ecommerce service DecoPac.com where customers can create accounts and place orders. In these instances, the following terms apply to purchasers (“DecoPac.com Customers”). If any terms of this Section 10(B) conflict with the remainder of the TOU, the terms of this Section 10(B) shall prevail in connection with DecoPac.com Customers.
- DecoPac Services. Subject to these TOU, and provided that the DecoPac.com Customer fulfills its obligations under these TOU, DecoPac shall, during the Term of this Agreement, provide the following services:
- Access to DecoPac.com. DecoPac shall provide the DecoPac.com Customer with electronic access to the DecoPac.com website for use by the DecoPac.com Customer.
- DecoPac.com Customer Requirements. In addition to acceptance of these TOU, the following requirements must be met to become and remain a DecoPac.com Customer:
- Registration. You MUST be a registered, business entity with a Federal Tax ID, that markets and sells bakery food or deli items, ice cream, or desserts.
- DecoPac Customer. You must be registered as a DecoPac customer. Registration takes place on www.DecoPac.com.
- DecoPac Licensed Products. You will utilize all DecoPac licensed products in accordance with the “Cake Decorating Instructions” or other materials accompanying a licensed cake decoration (DecoSet®, etc.), if applicable, or found on www.DecoPac.com and ensure any modification to any design will not affect the integrity of the design as originally depicted.
- Security. You agree to implement reasonable security practices and procedures. In the event You become aware of a security incident, breach, or an attempted breach of the security, confidentiality or misuse, misappropriation or unauthorized disclosure of data, You shall promptly notify DecoPac and shall cooperate in the investigation and mediation of the security incident, including implementation of appropriate, applicable controls to maintain and preserve electronic evidence relating to such security incident. In the event any security incident requires notification to an individual, regulator, or government under any applicable law, DecoPac and the DecoPac.com Customer will work together regarding the timing, content, and method of notification and the DecoPac.com Customer shall cooperate with DecoPac at DecoPac.com Customer’s own expense in complying with any notice requirement.
- Protection of Personal Information. Each party represents and warrants to the other that at all times during and after the Term it will, and will cause any of its subcontractors to (i) use, handle, collect, maintain, safeguard, and destroy personal information it may acquire in connection with these TOU in accordance with applicable laws and industry best practices for the particular activities contemplated by these TOU.
- Account Holds. DecoPac may place holds on accounts based on certain factors, including, but not limited to, non-payment history, bakery performance, violation of these TOU or other rules communicated in writing to a DecoPac.com Customer.
- Term. Unless terminated early as provided herein, these TOU shall remain valid and in force so long as the DecoPac.com Customer has an account on DecoPac.com or accesses the Service, or a party has given thirty (30) days written notice of its desire to terminate these TOU, whichever is sooner (the “Term”); provided, that, if the DecoPac.com Customer wishes to access or use DecoPac.om after such termination, the DecoPac.com Customer must reaccept the TOU and related policies.
- Termination for Breach. Either DecoPac or the DecoPac.com Customer may terminate these TOU immediately at any time if the other party commits a breach of any material covenant or obligation under these TOU and should fail to remedy such breach within ten (10) business days from the receipt of written notice from the non-breaching party. Upon termination, the breaching party shall remain responsible for all obligations contained in these TOU that survive termination.
- Termination for Bankruptcy. Either DecoPac or the DecoPac.com Customer may terminate these TOU immediately without prejudice to any other remedy that such party may be entitled at law or in equity or elsewhere under these TOU by giving written notice of termination to the other party if the other party: (a) liquidates and ceases to carry on its business, (b) becomes “insolvent” (as such term is defined in the United States Bankruptcy Code, as amended from time to time), or (c) voluntarily seeks, consents to or acquiesces in the benefits of any bankruptcy or similar debtor relief laws.
- Effect of Termination. Upon termination these TOU, the licenses granted shall automatically terminate and all rights granted to the DecoPac.com Customer shall automatically revert back to DecoPac.
- Confidential Information. You acknowledge that pursuant to these TOU, You may have access to or become aware of, information considered by DecoPac to be proprietary, confidential or a trade secret of DecoPac (collectively, “Confidential Information”). Confidential Information shall include, without limitation, data, nonpublic sales and financial data, non-public business operations, marketing materials, marketing plans and strategies, research and development plans, computer programming materials and such other information that is marked confidential or would reasonably be considered of a proprietary or confidential nature based on the nature and circumstances surrounding its disclosure. Without the prior written consent of DecoPac, such Confidential Information shall not be used by You for any purpose whatsoever except as may be necessary in connection with the use of DecoPac.com as permitted hereunder. Confidential Information may be (i) disclosed in oral, written, graphic, machine recognizable, and/or sample form, or (ii) obtained by examination, testing or analysis of any products.
- Standard of Care; Restrictions on Use. You shall exercise reasonable care, but in no event less than the standard of care used by You or as required by applicable law to protect Your own Confidential Information of similar sensitivity, to prevent the disclosure of the Confidential Information to any third party except as provided herein. You agree: (i) to hold DecoPac’s Confidential Information in strict confidence; (ii) not to divulge any such Confidential Information to any third party; (iii) to disclose Confidential Information only to those of Your officers and employees, (collectively “Representatives”) who have a “need to know” such Confidential Information for the purpose of performing these TOU and who have been directed to comply with the confidentiality restrictions herein; (iv) to use the Confidential Information only for the purpose of performing Your obligations under these TOU and not for any other purpose; and (v) to cause Your Representatives to comply with these provisions and to be responsible for any failure of any Representative to so comply.
- Access to Information. DecoPac may permit its authorized employees to access information of the DecoPac.com Customer if necessary to correct an error, or to facilitate, cancel or modify an order, to provide account or site assistance, or to investigate or test for security issues.
- Exclusions. The foregoing restrictions between DecoPac and the DecoPac.com Customer shall not apply, however, to any portion of the Confidential Information that the DecoPac.com Customer can demonstrate to DecoPac (i) is now available or becomes available to the public through no fault of the DecoPac.com Customer; (ii) is explicitly approved for release by written authorization of DecoPac; (iii) is lawfully obtained from a third party or parties without a duty of confidentiality; (iv) is known to the DecoPac.com Customer or any of its affiliated companies prior to such disclosure as evidenced by the DecoPac.com Customer’s prior written record; or (v) is independently developed by the DecoPac.com Customer or any of its affiliated companies without the use of or reliance on any DecoPac’s Confidential Information or any breach of these TOU.
- Disclosure Required by Law. If the DecoPac.com Customer is required to disclose Confidential Information of DecoPac pursuant to applicable law, statute, or regulation, or court order, the DecoPac.com Customer will give DecoPac prompt written notice of the request and a reasonable opportunity to object to such disclosure and seek a protective order or appropriate remedy. If, in the absence of a protective order, the DecoPac.com Customer determines, upon the advice of counsel, that it is required to disclose such information, it may disclose only Confidential Information specifically required and only to the extent compelled to do so.
- Ownership of Confidential Information. All Confidential Information remains the property of DecoPac and will not be copied or reproduced without the express written permission of DecoPac except as permitted in these TOU. Upon termination of these TOU and within ten (10) business days of receipt of DecoPac’s written request, the DecoPac.com Customer will return all Confidential Information to DecoPac along with all copies and portions thereof (and cause any permitted subcontractor to destroy) or certify in writing that all such Confidential Information has been destroyed in accordance with applicable law and prevailing industry best practices. No license, express or implied, in the Confidential Information is granted other than to use the Confidential Information in the manner and to the extent authorized by these TOU.
- Reverse Engineering. The DecoPac.com Customer shall have no right to duplicate, translate, modify, copy, printout, disassemble, decompile or otherwise tamper with any components of DecoPac.com or any firmware or software provided in connection therewith, nor shall the DecoPac.com Customer permit any third party to do the same.
- Equitable Remedies. It is understood and agreed that monetary damages would not adequately compensate DecoPac for the breach of Sections 10(B)(10, 11, 15, or 16) of this Agreement. Accordingly, in addition to any other remedy to which DecoPac may be entitled, at law or in equity, DecoPac shall be entitled to request injunctive relief to prevent the breach or threatened breach of those Sections of these TOU and specifically to enforce the terms and provisions hereof. Further, the DecoPac.com Customer hereby waives any claim or defense that there is an adequate remedy at law for such breach or threatened breach.
- Ownership of Intellectual Property Rights. All right, title and interest in and to DecoPac.com, including all software, code, images, characters, properties, copyrights, trademarks and trade dress, and the goodwill associated therewith shall be and remain the sole and complete property of DecoPac and/or its licensors.
- To DecoPac.com Customer. Except as otherwise set forth herein, notices made by DecoPac to the DecoPac.com Customer under these TOU that affect DecoPac’s customers generally (e.g., services related news, service updates, maintenance, etc.) will be posted on DecoPac.com and/or communicated by email to DecoPac.com Customers. Notices made by DecoPac under these TOU for DecoPac.com Customer specifically (e.g., notices of breach and/or suspension) will be provided via the email address provided to DecoPac in DecoPac.com Customer’s registration for the Service or in any updated email address provided to DecoPac in accordance with standard account information update procedures provided through the Service. It is DecoPac.com Customer’s responsibility to keep its email address current and DecoPac.com Customer will be deemed to have received any email sent to any such email address, upon DecoPac’s sending of the email, whether or not DecoPac.com Customer actually receives the email.
- To DecoPac. For notices made by DecoPac.com Customer to DecoPac under these TOU and for questions regarding these TOU or the Service, DecoPac.com Customer may contact DecoPac as follows:
Attn: Legal Department
3500 Thurston Avenue
Anoka, MN, 55303
20. Agreements. In the event of conflict, these TOU shall supersede any other agreements DecoPac.com Customer has with DecoPac in terms of DecoPac.com Customer’s use of DecoPac.com.
21. Insurance. The DecoPac.com Customer agrees to maintain during the Term of these TOU and for three (3) years thereafter, commercial general commercial liability insurance including products and completed operations which insurance shall be in the amount and of a type customarily maintained by companies similarly situated, providing at least $3,000,000 in coverage per occurrence (with a deductible not to exceed $30,000).