These Delphi.Net Terms and the Order confirming Customer’s subscription to use NI’s proprietary online sales and catering application known as Delphi.Net (together the “Agreement”) form a binding contract between Newmarket International, Inc. (“NI”) and the business entity (“Customer”) named on the Order.
NI may revise these Delphi.Net Terms from time to time at NI’s discretion by placing revised Delphi.Net Terms on the Web Site and providing notice to Customer as described in Section 10. The revised Delphi.Net Terms will become effective and replace previous versions upon the next renewal of the Customer’s Subscription Term.
1. SCOPE OF AGREEMENT AND LICENSE GRANT. Use of Delphi.Net is licensed, not sold. Subject to compliance with this Agreement, NI grants Customer, for the Subscription Term, a nontransferable (except for assignment of this Agreement under Section 10), nonexclusive right to access and use those Delphi.Net services described on the Order. Delphi.Net may only be used online at https://my.delphi.net/app (“Web Site”) and only for Customer’s internal business purposes of operating Customer’s property at the location specified in the Order (“Property”). Delphi.Net includes all software and any text, graphics, images, audio and visual information, online tutorials, documents, specifications, and materials made available to Customer. Delphi.Net may only be used by employees and agents of Customer who are authorized by Customer to access Delphi.Net on Customer’s behalf (“Authorized Users”). Unless Customer’s Order specifies a property site license, the maximum number of Authorized Users shall not exceed the number authorized in the Order. Each Authorized User must have a unique user ID and password combination for using Delphi.Net (“User Account”). Multiple individuals shall not share a User Account. New User Accounts may be set up for new Authorized Users in replacement of User Accounts that have been de-activated for former Authorized Users who no longer are permitted access to Delphi.Net.
2. SUBSCRIPTION TERM. Except as otherwise provided in an Order, the Subscription Term will commence on the Effective Date and continue for an initial term of 12 months. Thereafter, the Subscription Term will automatically renew for successive annual renewal terms until either party elects not to renew by providing the other party at least thirty (30) days advance written notice of its election not to renew. Either party may terminate the Subscription Term if the other party is in material breach of this Agreement if the breach remains uncured thirty (30) days from the non-defaulting party providing written notice specifying the breach. Termination of the Subscription Term automatically terminates Customer’s license to use Delphi.Net. Customer will immediately discontinue use of Delphi.Net and, at NI’s option, return or destroy all documentation. Upon Customer’s written request, if received within five (5) days of termination of the Subscription Term and so long as Customer is not in default of any of its obligations under this Agreement, NI will make the Customer Data available to Customer within 30 days of the request in a reasonable file format selected by NI. Thereafter, NI shall have no obligation to retain Customer Data.
3. FEES AND PAYMENT. The Subscription Fees and invoicing terms for the initial term will be specified on the Order. Subscription Fees for each renewal term will be at NI’s prevailing rates at the time of renewal. NI will invoice all fees for renewal terms annually in advance and payment will be due prior to commencement of the renewal term. Except as required to resolve warranty claims, all Orders are non-cancellable and all Fees are nonrefundable. All sales will be billed in U.S. dollars unless otherwise specified in the Order. Undisputed past due amounts bear interest at 1.5% per month or the maximum permitted by law, whichever is less.All fees are exclusive of, and Customer will pay, all taxes, levies, or duties imposed by taxing authorities, excluding taxes based solely on NI’s income.
4. RESTRICTIONS AND SUSPENSION. Customer shall not: i) remove or alter any copyright notices or other proprietary legends contained in Delphi.Net; ii) disassemble, decompile, or reverse engineer Delphi.Net; iii) create Internet “links” to Delphi.Net; iv) reproduce, distribute, “frame”, or “mirror” any part of Delphi.Net on any other computer system; v) access or copy Delphi.Net in order to build a similar or competitive product or service; vi) make Delphi.Net accessible or available to any third party; vii) use Delphi.Net to operate a service bureau or otherwise provide Delphi.Net services to any third party; or viii) use Delphi.Net in violation of any law or regulation. Customer is responsible for all activity occurring through its User Accounts. Customer shall promptly notify NI of any known or suspected breach of security or use of Delphi.Net in breach of this Agreement or breach of security (including unauthorized use of User Accounts). NI may monitor Delphi.Net activity and suspend any User Account(s): i) where applicable Fees have not been paid; ii) which NI reasonably believes are not authorized or are being used in violation of this Agreement, including any activity harmful or potentially harmful to Delphi.Net. NI will promptly notify Customer of any suspension and will work with Customer in good faith to resolve the issues which prompted suspension. Customer will not receive a refund or credit for any period of suspension. NI reserves the right to assess a reconnection fee in the event the suspension resultsfrom Customer’s failure to pay the applicable fees or Customer’s intentional violation of this Agreement. Suspension is without prejudice to other remedies available to NI for any Violation of this Agreement by Customer.
5. ACCESS AND PROPERTY INFORMATION. Customer is responsible for acquiring and maintaining computer systems and telecommunication services necessary to use Delphi.Net. All information input into Delphi.Net regarding Customer’s Property and the sales and catering services the Customer provides (“Property Information”) is proprietary to Customer. Delphi.Net provides 1GB of disk storage space per property site for Property Information; additional storage is available for additional charge. NI shall endeavor to notify Customer if its utilization exceeds ninety percent (90%) of the maximum capacity. NI reserves the right to revise or modify its general practices and procedures regarding storage of Property Information. In the event of loss or corruption of Property Information, NI’s liability is limited to restoring Property Information within Delphi.Net to the status of NI’s most recent uncorrupted back-up of the Delphi.Net database.
7. WARRANTIES. NI warrants that Delphi.Net will perform substantially in conformance with the online help documentation under normal use and circumstances. NI does not warrant that Delphi.Net will be secure or free of viruses or other harmful components, operate uninterrupted or error-free, or achieve any results expected by Customer. EXCEPT FOR THE EXPRESSED WARRANTIES DESCRIBED IN THIS SECTION, NI DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY. NI will be liable only for actual direct damages incurred by Customer as a direct result of NI’s gross negligence, willful misconduct, or failure to exercise reasonable care in providing Delphi.Net. NI has no liability for any indirect, consequential, or punitive loss, damage or expense, including any loss of data, revenue, profits or use, even if advised of the possibility of such loss or damage. Except for NI’s liability pursuant to Section 9, in no event will NI’s aggregate liability exceed the fees paid, or payable, by Customer during the one (1) year period preceding the event giving rise to the liability.
9. INFRINGEMENT INDEMNIFICATION. NI will defend or settle, at its own expense, any action brought against Customer alleging Delphi.Net or Customer’s use of Delphi.Net infringes any patent, copyright or other proprietary right enforceable in the United States. NI will pay all costs and damages finally awarded in any such action. NI’s obligations under this section are subject to Customer: i) providing prompt written notice of the claim; ii) granting NI sole control of the defense and settlement of the claim; iii) not performing any action prejudicial to NI’s ability to defend the claim; and iv) providing cooperation and information reasonably requested by NI, at NI’s expense. NI has no liability for any claim based on use of Delphi.Net: i) in violation of this Agreement; or ii) in combination with other software or hardware not provided or specified by NI. If operation of Delphi.Net is enjoined despite NI’s commercially reasonable efforts to procure rights to continue operating Delphi.Net or modify Delphi.Net to make it non-infringing, NI may terminate the Subscription Term and issue a refund of a prorated portion of the Subscription Fee that is applicable to the portion of the Subscription Term following termination. This Section states NI’s entire liability for any claim of infringement of any intellectual property rights of any kind.
10. MISCELLANEOUS. NI may provide notices to Customer by emailing it to the email address or by mailing it to Customer’s postal address, in each case as recorded in NI’s account information. Notices to NI must be sent by mail or courier to Newmarket International, Inc. 75 New Hampshire Avenue, Portsmouth NH 03801, attention CFO. Notices sent by email will be effective 24 hours after emailing unless NI receives notice that the email was not delivered. Other Notices are effective upon receipt. This Agreement may not be assigned by Customer without the prior written consent of NI, such consent not to be unreasonably withheld. NI may assign this Agreement with advance written notice to Customer. Any purported assignment in violation of this Section shall be void. This Agreement will be governed by the laws of the United States and of the State of New Hampshire, excluding its conflict of law rules. Any disputes regarding this Agreement or Delphi.Net shall be subject to the exclusive jurisdiction of courts within New Hampshire. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Except for timely payment of Fees, neither party shall be responsible for any failure to perform its obligations if performance is prevented or delayed by force majeure conditions or any cause beyond its reasonable control. Nothing in this Agreement creates any agency, fiduciary, joint venture or partnership relationship between NI and Customer. The failure of NI to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision.