Supplier Terms & Conditions
These Terms and Conditions (“Terms and Conditions”) govern your use of the “Mercado de Mezcal” e-commerce platform. By accessing and using the “Mercado de Mezcal” e-commerce platform, you (“Supplier”) are agreeing to be bound by these Terms and Conditions. Mercado de Mezcal and Supplier may collectively be referred to as the “Parties” and/or individually as a “Party."
- Definitions. Capitalized terms used in these Terms and Conditions that are not defined in this Section shall have the meaning specified elsewhere in the text of these Terms and Conditions.
“Documentation” means specifications, user manuals, system administration manuals, standard operating instructions, end-user training documentation and any other materials provided to Supplier by Mercado de Mezcal or a Mercado de Mezcal Related Entity.
“Mercado de Mezcal Content” means: (i) on-screen layouts, product categories, product descriptions, text, graphics, images, artwork, video, sound or other tangible artistic or textual material whether or not used or provided for use for the Service, that are created by or on behalf of, owned by, licensed to and/or controlled by Mercado de Mezcal or any Mercado de Mezcal Related Entity or provided by Mercado de Mezcal or any Mercado de Mezcal Related Entity in connection with the Service; (ii) any materials, including without limitation, Software and other software and copyrightable works of any nature, that Mercado de Mezcal or any Mercado de Mezcal Related Entity provides in connection with the Service, including Documentation; and (iii) any and all technology, HTML formatting code, source and object code, programming code and software, including Software, as well as all text, images, video, audio, and other data, products, services, advertisements, promotions, URLs, keywords and other navigational elements, links, pointers, and any modifications, improvements, expansions, extensions, upgrades, updates, enhancements and replacements provided by Mercado de Mezcal or any Mercado de Mezcal Related Entity in connection with the Service or otherwise. For the avoidance of doubt, it is expressly agreed and understood that articles and other content created by or on behalf of Mercado de Mezcal or any Mercado de Mezcal Related Entity during the Term for use with the Service or Software shall be deemed Mercado de Mezcal Content, but excluding, in any case, any Supplier Content and Supplier Marks that may be contained in such articles or other content.
“Mercado de Mezcal Data” means the information collected by Mercado de Mezcal from and about Service Users when they use the Service.
“Mercado de Mezcal Marks” means all trade names, trademarks, service marks, logos, trade dress, and other similar indicia of origin owned by or licensed to and/or controlled by Mercado de Mezcal or its Related Entities (other than the Supplier Marks) and the goodwill associated therewith.
“Intellectual Property” means intellectual property regardless of form, including any idea, design, concept, technique, invention, discovery, or improvement, regardless of patentability, software development tools, trade names, trademarks, service marks, logos, trade dress and other similar indicia of origin, trade secrets, know-how, processes, methodologies, templates, frameworks, algorithms, software code, databases, creative content, works of authorship, and other materials, and all intellectual property rights therein.
“Law” means any statute, law, rule, ordinance, regulation, administrative regulation and the like of any city, state or local governmental agency.
“Supplier Content” means photos, text, web page layouts, graphics, images, artwork, video, sound or other tangible artistic or textual material created by or on behalf of (other than by Mercado de Mezcal or a Mercado de Mezcal Related Entity pursuant to these Terms and Conditions or in connection with the Service), owned by or licensed to (other than by Mercado de Mezcal or a Mercado de Mezcal Related Entity pursuant to these Terms and Conditions or in connection with the Service) Supplier or its Related Entities.
“Supplier Data” means (i) information regarding the Supplier’s inventory of the items available for ordering and sale through Supplier’s store(s); (ii) information regarding purchases made by Supplier Users that is collected and maintained by Supplier before and during the Term; and (iii) Supplier User PII, specifically excluding Mercado de Mezcal Data.
“Supplier Marks” means all trade names, trademarks, service marks, logos, trade dress and other similar indicia of origin owned by Supplier or its Related Entities, and the goodwill associated therewith.
“Supplier User” means any person who makes purchases from Supplier.
“Supplier User PII” means any data that can be used to identify or contact a Supplier User, such as name, street address, email address, or telephone number, provided by a Supplier User to Supplier.
“Related Entity(is)” means, in relation to either Party, any corporation or other legal entity, in whatever country organized, controlled by, controlling, or under common control with such Party. For the purposes of this definition, the term “control” means: (i) a fifty percent (50%) or greater interest in the net assets, profits or cash flow of a business organization of any nature; (ii) the power, direct or indirect, to elect or appoint fifty percent (50%) or more of the directors or trustees; or (iii) the power to direct management or governance, whether through the ownership of voting securities, by contract or otherwise.
“Service” means Mercado de Mezcal’s electronic platform and applications that are used with a computer, mobile phone or other similar device that enable consumers to order, purchase and schedule for delivery alcoholic beverages available from Supplier.
“Service User” means any Supplier User who uses the Service.
“Software” means the software program that enables the Service and all subsequent versions and iterations thereof and modifications, improvements, expansions, extensions, upgrades, updates, enhancements or replacements thereto that perform the same or similar functions on any and all platforms.
2.1 General. Subject to these Terms and Conditions and subject to the proper performance of the Supplier’s software and proper performance of and access to the components of the Service that reside with the Supplier, Mercado de Mezcal will use commercially reasonable efforts to provide the Software to Supplier, consistent with Mercado de Mezcal’s normal business practices. Supplier acknowledges and agrees that Mercado de Mezcal’s performance of its obligations under these Terms and Conditions and the performance of the Service are contingent on Supplier providing full cooperation and agreed upon access to Supplier’s personnel, Supplier Data and other information and Supplier’s materials and equipment so that Mercado de Mezcal may implement and enable the Service for Supplier.
2.2 Supplier Accounts. In order to enable the Service, Supplier shall register an account including a username and password with Mercado de Mezcal (“Supplier Account” or “LRA”). The LRA will facilitate the Supplier’s use of the Service and will allow the Supplier to provide and maintain current and accurate information pertaining to the Supplier’s account with Mercado de Mezcal. It is the Supplier’s sole responsibility to maintain a current and accurate LRA. Supplier is solely responsible for any and all activity and transactions which occur through its LRA. Supplier shall immediately notify Mercado de Mezcal of any unauthorized use or security issue related to the LRA.
2.3 Insurance. Upon Mercado de Mezcal’s request, Supplier shall provide to Mercado de Mezcal a copy of its current retail package store alcoholic beverages license and its manager of record contact information. Supplier shall maintain liquor liability insurance and general liability insurance with minimum limits of $1,000,000 per occurrence and $2,000,000 aggregate and name Mercado de Mezcal as an additional insured on each such policy. Upon Mercado de Mezcal’s request, Supplier shall provide certificates of insurance to Mercado de Mezcal evidencing such insurance coverage and showing Mercado de Mezcal as an additional insured under such coverage. Supplier shall maintain such documentation and insurance during the Term and notify Mercado de Mezcal at least thirty (30) days prior to any cancellation of, or material change to, such documentation or insurance.
2.4 Compliance. Supplier shall actively manage its LRA, regularly maintain the content included in the LRA as well as comply with these Terms and Conditions and applicable Laws, including but not limited to Laws pertaining to alcoholic beverages. Mercado de Mezcal explicitly reserves the right to suspend access to the LRA and/or the Software and Service at any time without advance notice for Supplier’s failure to abide by the terms set forth in these Terms and Conditions or applicable Laws. In the event of any such suspension, Mercado de Mezcal shall notify Supplier and allow at least ten (10) days for Supplier to correct the failure before terminating these Terms and Conditions pursuant to Section 6.2.
2.5 Access. The Software being provided hereunder by Mercado de Mezcal to Supplier is in the form of “software as a service” and therefore no software or equipment or other materials will be physically delivered by Mercado de Mezcal to Supplier under these Terms and Conditions. Supplier may only access the Service and Software through authorized means. It is the responsibility of the Supplier to access the correct Software that is compatible with Supplier’s technology. Mercado de Mezcal is not liable in the event that Supplier does not have compatible technology or if it has downloaded the wrong version of the Software for its use. Mercado de Mezcal reserves the right to terminate these Terms and Conditions if the Supplier uses the Software with an incompatible or unauthorized device.
2.6 Support. The Parties will reasonably cooperate with each other and any of their respective suppliers and subcontractors as reasonably necessary to perform each Party’s obligations under these Terms and Conditions; provided, however, that any such support shall be consistent with all Laws regulating the sale and distribution of alcoholic beverages.
- License Grants and Intellectual Property.
3.1 Mercado de Mezcal Licenses. Subject to these Terms and Conditions, Mercado de Mezcal hereby grants to Supplier a non-exclusive worldwide right and license during the Term (i) to access and use the Software in connection with the Service, (ii) to publicly display Mercado de Mezcal Content and Mercado de Mezcal Marks solely in connection with the Service, (iii) to market the availability of the Service as part of marketing the Supplier, and (iv) to enable Supplier Users to access and use the Service. Supplier shall not: (a) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Service, Software or Mercado de Mezcal Content in any unauthorized manner, including but not limited to by trespass or burdening network capacity; (b) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Service, Software or Mercado de Mezcal Content, any updates, or any part thereof in any form or manner or by any means; (c) attempt to obtain any information or content from the Service, Software or Mercado de Mezcal Content using any robot, spider, scraper or other automated means for any purpose; (d) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Service, Software or Mercado de Mezcal Content; (e) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the Service, Software or Mercado de Mezcal Content, any source code thereof, any updates thereto, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable Law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Service, Software or Mercado de Mezcal Content); (f) use any means to discover the trade secrets in the Service, Software or Mercado de Mezcal Content; (g) to otherwise circumvent any functionality that controls access to or otherwise protects the Service, Software or Mercado de Mezcal Content; or (h) permit any third party to engage in any of the acts described in clauses (a) through (h).
3.2 Supplier License. Subject to these Terms and Conditions, Supplier hereby grants to Mercado de Mezcal and its Related Entities a non-exclusive, royalty-free, worldwide right and license to use and reproduce Supplier Marks and Supplier Content during the Term solely for purposes of performing these Terms and Conditions.
3.3 Intellectual Property. Except as expressly stated in these Terms and Conditions, no right, title, license, or interest in either Party’s (or any of its Related Entities’) Intellectual Property is intended to be given to or acquired by the other Party (or any of its Related Entities) as a result of the execution or performance of these Terms and Conditions. Each Party expressly agrees that it and/or its Related Entities shall not take any action that shall interfere with or diminish the other Party’s (or its Related Entities’) rights in that Party’s (or its Related Parties’) Intellectual Property.Neither Party (nor their Related Entities) will register or attempt to register the Marks of the other Party (or its Related Entities) or any confusingly similar marks in any jurisdiction and will not oppose the other Party’s (or any of its Related Entities’) registration of the Marks alone or with other words or designs in any jurisdiction. If a Party (or a Related Entity) uses, registers or applies to register a mark in violation of its obligations under this section, such Party agrees, at the other Party’s request, to abandon the use of such mark and any application or registration for such mark. For the avoidance of doubt, Mercado de Mezcal Intellectual Property includes but is not limited to Mercado de Mezcal Content, Mercado de Mezcal Data, Mercado de Mezcal Marks, Documentation, Service and Software. Supplier Intellectual Property includes Supplier Content and Supplier Marks except to the extent they include or incorporate Mercado de Mezcal Intellectual Property.
3.4. Marketing and Promotion. Each Party shall use the other Party’s Marks only in the form(s) approved by the other Party, and such use shall include a notice to third parties that such trademarks are owned by the other Party. Each Party shall use the other Party’s Marks in a manner consistent with the other Party’s use of such Party’s Marks and each Party’s use of the other Party’s Marks shall at all times comply with the other Party’s trademark guidelines, as may be provided by a Party to the other Party from time to time. Each Party shall submit to the other Party for its approval, all graphics, text or other materials that use or display the other Party’s Marks prior to any use by such Party. The reviewing Party shall have the right to grant or withhold approval in such Party’s sole discretion. The Parties acknowledge and agree that: (a) there is no agreement or understanding between them that as consideration for entering into these Terms and Conditions the Supplier must market or promote a specific brand of product; (b) the marketing and promotion of any alcoholic beverages by the Supplier are not and shall not be influenced or induced by any manufacturer, importer, supplier, wholesaler or distributor; and (c) that Supplier shall at all times be free to market and promote any brands of alcoholic beverages that it determines pursuant to its unilateral business judgment.
3.5 Feedback. Any and all (i) suggestions for correction, change and modification to the Service or Software and other feedback (including but not limited to quotations of written or oral feedback), information and reports provided to Mercado de Mezcal or any Mercado de Mezcal Related Entity by Supplier (collectively "Feedback"), and all (ii) improvements, updates, modifications or enhancements thereto, whether made, created or developed by Mercado de Mezcal or any Mercado de Mezcal Related Entity or otherwise relating to the Service or Software (collectively, "Revisions"), are and will remain the property of Mercado de Mezcal. Supplier acknowledges and expressly agrees that any contribution of Feedback or Revisions does not and will not give or grant Supplier any right, title or interest in the Service, Software or in any such Feedback or Revisions. All Feedback and Revisions become the sole and exclusive property of Mercado de Mezcal and its Related Entities and Mercado de Mezcal may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to Supplier and without retention by Supplier of any proprietary or other right or claim. Supplier hereby assigns to Mercado de Mezcal any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that Supplier may have in and to any and all Feedback and Revisions. At Mercado de Mezcal’s request, Supplier will execute any document, registration or filing required to give effect to the foregoing assignment.
3.6 Data. Supplier hereby grants to Mercado de Mezcal a perpetual, irrevocable, nonexclusive, royalty free, fully paid up, worldwide license, with right of sublicense through multiple tiers, to use the Supplier Data; provided Mercado de Mezcal shall not identify Supplier by name as the source of such data (except for purposes of the providing the Service) or disclose any Supplier User PII to other parties. Subject to any rights or licenses granted in these Terms and Conditions, Supplier and its Related Entities shall retain all right, title and interest in all Supplier Data. Mercado de Mezcal and its Related Entities shall retain all right, title and interest in all Mercado de Mezcal Data whether collected before, during or after the Term.
- Integration. Mercado de Mezcal will use commercially reasonable efforts to implement the Software for Supplier and Supplier will use commercially reasonable efforts to integrate its systems with Mercado de Mezcal’s and provide access to and deliver Supplier Data.
4.1 Personnel. Each Party will be liable for all acts and omissions of their respective personnel whether or not such personnel is an employee, independent contractor or subcontractor.
4.2 Maintenance. During the Term, the Parties will, at each Party’s own expense, make commercially reasonable efforts and cooperate to ensure that the Software and Service are maintained and that the most current version of the Software is in use.
4.3 Timely Performance. The Parties acknowledge that timely performance by each of them of its respective obligations is material under these Terms and Conditions. If either Party is delayed in performing its obligations under these Terms and Conditions, any delayed performance by such Party shall be excused to the extent, butonly to the extent, such delay is a result of the other Party’s delay.
5.1 Fees. Supplier shall pay the fees set forth by Mercado de Mezcal. Mercado de Mezcal may increase fees at any time, provided it gives Supplier at least thirty (30) days prior written notice. If Supplier does not agree to the increase, Supplier may terminate these Terms and Conditions upon written notice to Mercado de Mezcal with the termination effective as of the effective date of the fee increase.
5.2 Payments. Mercado de Mezcal will initiate customer payments to License Retailer's bank account for the full amount of any orders, tax and shipping owed to Retailer upon verifying the customer order for such payments.
5.3 Late Payments. Late payments are subject to a late charge equal to the lesser of (i) one and one-half percent (1½%) per month and (ii) the highest rate permitted by applicable Law and may result in immediate service suspension until the account balance is paid in full.
- Term and Termination.
6.1 Term. The Term of Service is 30-days to 1-year depending on the plan type and options and begins on the subscription date with Mercado de Mezcal and continues until the expiration date 12 months after the time of registration, if any, or termination in accordance with these Terms and Conditions. The date of any expiration or termination of these Terms and Conditions shall be the “Termination Effective Date.” Either Party may terminate these Terms and Conditions by providing at least ninety (90) days advance written notice to the other Party prior to the end of the term, otherwise services will auto-renew annually.
6.2 Termination for Cause. In addition to the termination rights set forth elsewhere in these Terms and Conditions, either Party may terminate these Terms and Conditions at any time during the Term by providing at least thirty (30) days written notice to the other Party if the other Party breaches any provision in these Terms and Conditions and fails to remedy such breach within thirty (30) days of the date of such written notice. If the operation of the Service is determined by either Party, or by a regulatory authority or court having competent jurisdiction, to violate any Law, these Terms and Conditions may be immediately terminated.
6.3 Insolvency; Cessation of Business. Either Party may terminate these Terms and Conditions immediately upon written notice to the other Party if the other Party has ceased operations in the normal course of business or has sought or is seeking to make a compromise, assignment or other arrangement for the benefit of creditors, or if the other becomes a party to bankruptcy, receivership or similar proceedings affecting its financial condition, unless such proceedings are discharged within sixty (60) days after receipt of such written notice.
6.4 Effect of Termination. Upon expiration or termination of these Terms and Conditions for any reason:
(a) Except as expressly set forth herein, all rights and licenses granted hereunder to each Party’s Intellectual Property shall terminate effective on the Termination Effective Date, and each Party shall remove the Intellectual Property of the other Party from such Party’s properties.
(b) Supplier shall make the final payment to Mercado de Mezcal in accordance with the terms of Section 5; provided, however, the final payment may be delayed for a period of sixty (60) days in order to account for any returns on sales made by Supplier through the Service to Service Users.
(c) Mercado de Mezcal’s right and license to use Supplier Data shall terminate effective on the Termination Effective Date, provided, however, that expiration or termination of these Terms and Conditions for any reason shall not affect Mercado de Mezcal’s rights or license with respect to Supplier Data already received by Mercado de Mezcal prior to the Termination Effective Date.
6.5 Survival. Upon expiration or termination of these Terms and Conditions, the following provisions shall survive: Sections 1, 3.5, 3.6 (provided that Mercado de Mezcal’s right to use Supplier Data shall not survive except as set forth in Section 6.4(c)), 6.4, 6.5, 7, 8, 9, 10, 11 and 13.
- Confidential Information.
7.1 Definition. “Confidential Information” refers to information of any kind provided by one Party (“Discloser”) to the other (“Recipient”) prior to the date of these Terms and Conditions or at any time during the Term in connection with these Terms and Conditions. Unless excluded in writing by the Discloser, the Parties shall assume that any and all information disclosed, that is of a nature that a reasonable person would understand is confidential, is Confidential Information, whether in oral form, machine-readable form, written, digital, electronic or other tangible form, and whether designated as confidential or unmarked, including, without limitation: business strategies and information, marketing concepts, advertising and promotional plans, technical information, network information, information regarding software applications, systems and procedures, financial information, sales data, vendor lists, customer lists and other personal information, creative concepts, specifications, designs, plans and software, that is labeled, identified or described by the Discloser thereof as confidential or that a reasonable person in a similar situation would recognize as confidential. Confidential Information specifically shall include, without limitation, the following: (i) any customer lists or customer-related information of Discloser; (ii) any sales or other financial data of Discloser; (iii) any business strategies or marketing concepts of Discloser, including without limitation, advertising, promotional and website development plans; (iv) any systems information of Discloser; and (v) any algorithms, software or related information of Discloser. Mercado de Mezcal Confidential Information includes but is not limited to Mercado de Mezcal Intellectual Property. A Party’s Confidential Information also includes notes prepared based on any of the information described in this Section 7.1, regardless of the preparer.
7.2 Exceptions. Sections 7.3, 7.4 and 7.5 do not apply to information that Recipient can demonstrate by documentary evidence: (i) is or becomes publicly known through no violation of these Terms and Conditions by the Recipient; (ii) is rightfully received from a third party without similar restriction and provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) is approved by Discloser in writing for release; (iv) is disclosed pursuant to the lawful requirement of a governmental agency, provided that if the Recipient makes such disclosure, it shall give prompt notice to the Discloser of the Confidential Information so that Discloser may seek a protective order or other appropriate remedy prior to such disclosure; or (v) is developed independently by the Recipient without use of the Discloser’s Confidential Information.
7.3 Use and Disclosure of Confidential Information. Except as otherwise permitted by and subject to the rights and licenses granted elsewhere in these Terms and Conditions, Discloser’s Confidential Information will be used solely for the purpose of performing the Service and will not, without the prior written consent of the Discloser, be voluntarily divulged, furnished or otherwise disclosed, orally or in writing, except that the Confidential Information or portions thereof may be disclosed to the employees, officers, directors, contractors and legal counsel of Recipient (collectively and as applicable, “Representatives”) with a need to know such Confidential Information for the above stated purposes and who are under confidentiality obligations no less restrictive than those set forth herein. Recipient shall use the same measures to avoid publication, disclosure or dissemination of the Confidential Information as the Recipient uses with similar information of its own which it desires not to have published, disclosed or disseminated, and in no event less than reasonable measures. Neither Party will, without the prior written consent of the other, disclose to any person, other than to those specifically authorized herein on a confidential basis, any of the terms of or other facts regarding any proposed or actual business relationship or agreement between the Parties. Each Party reserves the right, in its sole discretion and without prior notice to any other Party, to disclose its own Confidential Information to any third party for any purpose.
7.4 Return of Property. Except with respect to the Supplier Data licensed to Mercado de Mezcal hereunder, upon expiration or termination of these Terms and Conditions or at any other time requested by a Party, each Party shall turn over to the other Party all Confidential Information of the other Party in such Party’s possession or control. The Party returning such information shall also securely delete or destroy all copies of such information stored on disk, tape, or other electronic storage media, and any backup of such media and deliver certification of such destruction to the requesting Party.
7.5 Disclosure of Data. If either Party learns of an unauthorized access to or disclosure of any of the other Party’s Confidential Information related to these Terms and Conditions, it will promptly notify the other Party.
- Representation and Warranties.
8.1 Mercado de Mezcal. Mercado de Mezcal represents and warrants to Supplier that (a) it has the required skills and experience to undertake its obligations described in these Terms and Conditions and (b) will not display on the Service any content that is commonly deemed obscene or inappropriate or that is illegal. Mercado de Mezcal further represents and warrants that: (i) no manufacturer, importer, supplier, wholesaler or distributor has influenced or induced Mercado de Mezcal to enter into these Terms and Conditions with Supplier; (ii) no manufacturer, importer, supplier, wholesaler or distributor has influenced or induced Mercado de Mezcal to cooperate with Supplier in any advertising or marketing activities (as such decisions are made by Mercado de Mezcal in its sole discretion); and (iii) Supplier shall at all times maintain absolute discretion regarding brand selection and quantity of products to be purchased, offered for sale, sold and/or delivered by Supplier and whether to enter into these Terms and Conditions with Mercado de Mezcal.
8.2 Supplier. Supplier represents and warrants that it has the full right, power and authority pursuant to Law to enter into and to perform its obligations under these Terms and Conditions and to grant the rights and licenses set forth in these Terms and Conditions. Supplier further represents, warrants and covenants that: (i) it holds a retail license as licensed and permitted by the licensing board or authority for the city, town, county and/or state (each as applicable) in which Supplier operates its store(s) and the governmental alcohol licensing commission for the state in which such retailer operates; (ii) it shall comply with all applicable Laws pertaining to Supplier’s obligations and activities hereunder and its participation in the Service, including but not limited to taking the necessary legally required steps to verify the ages of all purchasers and persons accepting deliveries; (iii) Supplier shall at all times exercise absolute and sole discretion regarding brand selection and quantity in its purchasing and sales of alcoholic beverages, with no influence or inducement from any manufacturer, importer, supplier wholesaler or distributor; (iv) it is at all times solely responsible for controlling and managing all aspects of the sale and delivery of alcoholic beverages, including the selection and pricing of inventory, receipt and acceptance of orders, and the processing and receipt of payments; (v) any and all alcohol product purchases, sales and transportation and delivery services which are contracted through the use of the Service by and between any Service User and Supplier are solely provided, managed and offered by the Supplier and/or the Supplier’s transportation provider and not by Mercado de Mezcal or any Mercado de Mezcal Related Entity; (vi) it acknowledges and understands that Mercado de Mezcal and all Mercado de Mezcal Related Entities do not offer, provide or sell alcoholic beverages or alcohol transportation services and are not licensed alcohol transportation carriers or Suppliers; (vii) it acknowledges and understands that all payments provided by Service Users to Supplier hereunder for the provision and sale of alcoholic beverages or alcohol transportation services are underwritten and processed by a third party credit card payment processor, not by Mercado de Mezcal or any Mercado de Mezcal Related Entity, and that neither Mercado de Mezcal nor any Mercado de Mezcal Related Entity accepts or processes any such payments; (viii) Supplier owns the Supplier Intellectual Property; (ix) all Supplier Content provided pursuant to these Terms and Conditions shall not infringe any Intellectual Property Right of any third party in the United States; and (x) the execution and performance of these Terms and Conditions by Supplier do not, and shall not, violate any agreements, rights or obligations between Supplier and any third party.
8.3 Mutual Acknowledgment. Neither Party intends for any promotional or marketing activity conducted hereunder to result in the exclusion, in whole or in part, of any competing products of any manufacturer, importer, supplier, wholesaler or distributor, or result in any unfair trade practices against any other retailer. Neither Party shall knowingly cause the other Party to act in violation of any Law.
9.1 Mercado de Mezcal Indemnification. Mercado de Mezcal shall defend Supplier and its Related Entities (each a “Supplier Indemnitee”) from and against any claims made or brought against a Supplier Indemnitee by a third party alleging that the Services infringe any patent, copyright, trademark, or other Intellectual Property Right, or misappropriate any trade secret of any third party (each, a “Third Party Infringement Claim”), and shall pay any damages finally awarded by a court or agreed to by Mercado de Mezcal in a settlement with respect to such Third Party Infringement Claim, and any reasonable attorney’s fees incurred in investigating or defending such Third Party Infringement Claim; provided that Supplier: (i) promptly gives written notice of the Third Party Infringement Claim to Mercado de Mezcal; (ii) gives Mercado de Mezcal sole control of the defense and settlement of the Third Party Infringement Claim (provided that Mercado de Mezcal may not agree to any settlement that imposes any liability or obligation on Supplier without Supplier’s prior written consent, not to be unreasonably conditioned, delayed or withheld); and (iii) provides to Mercado de Mezcal, at Mercado de Mezcal’s cost, all reasonable assistance. Mercado de Mezcal shall not have any obligation under this Section 9.1 or otherwise to the extent that a Third Party Infringement Claim arises as a result of or in connection with: (a) any Supplier Indemnitee’s use of the Software or Service other than as contemplated by these Terms and Conditions; (b) any modifications to the Software or Service made by any entity other than Mercado de Mezcal; (c) any combination of the Software or Service with any services or technologies not provided by Mercado de Mezcal; (d) Supplier’s use of the Software or Service or any portion thereof after Mercado de Mezcal has terminated these Terms and Conditions or such portion of the Software or Service in accordance with this Section 9.1; (e) Supplier’s negligence or willful misconduct; or (f) any Supplier Intellectual Property. If Mercado de Mezcal determines that the Software, Service or any part thereof is infringing or is likely to infringe any third party Intellectual Property Rights, or if as a result of any claim or litigation Mercado de Mezcal or Supplier is temporarily or permanently enjoined from licensing or using the Software, Service or any part thereof, Mercado de Mezcal may, at its option in its sole and absolute discretion: (x) promptly procure for Supplier the right to continue to use potentially infringing portion of the Software or Service as contemplated hereunder; (y) replace or modify the Software, Service, or potentially infringing portion to avoid the potential infringement; or (z) if Mercado de Mezcal determines that neither (x) nor (y) above is commercially reasonable, terminate these Terms and Conditions immediately without penalty and refund the amount of any pre-paid fees for the provision of the Software or Service after the termination date. THIS SECTION 9.1 SETS FORTH MERCADO DE MEZCAL’S SOLE AND EXCLUSIVE LIABILITY AND THE SUPPLIER INDEMNITEES’ SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
9.2 Supplier Indemnification. Supplier shall defend Mercado de Mezcal and its Related Entities (each a “Mercado de Mezcal Indemnitee”) from and against any claims made or brought against a Mercado de Mezcal Indemnitee by a third party that arise out of or relate to any act or omission by Supplier or any of its Related Entities, including without limitation any breach of any of its representations or warranties set out above in these Terms and Conditions, and shall pay any damages finally awarded by a court or agreed to by Supplier in a settlement with respect to such claim, and any reasonable attorney’s fees incurred in investigating or defending such claim; provided that Mercado de Mezcal: (i) promptly gives written notice of the claim to Supplier; (ii) gives Supplier sole control of the defense and settlement of the claim (provided that Supplier may not agree to any settlement that imposes any liability or obligation on Mercado de Mezcal without Mercado de Mezcal’s prior written consent, not to be unreasonably conditioned, delayed or withheld); and (iii) provides to Supplier, at Supplier’s cost, all reasonable assistance.
- WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE, MERCADO DE MEZCAL CONTENT AND ANY INFORMATION, SERVICES, SOFTWARE AND INTELLECTUAL PROPERTY PROVIDED THROUGH OR IN CONNECTION WITH THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY MATERIALS, THIRD PARTY SOFTWARE OR SERVICES) ARE PROVIDED TO SUPPLIER ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND (ALL OF WHICH ARE HEREBY DISCLAIMED), WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MERCADO DE MEZCAL MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY OF ANY RESULTS OF ANY KIND FOR SUPPLIER. MERCADO DE MEZCAL MAY INTRODUCE SUPPLIER TO THIRD PARTY DELIVERY SERVICE PROVIDERS. MERCADO DE MEZCAL WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTY DELIVERY SERVICE PROVIDER AND MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF SUCH DELIVERY SERVICE PROVIDERS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY.
- LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MERCADO DE MEZCAL'S, ITS RELATED ENTITIES’, AND/OR ITS OR THEIR LICENSORS’ AGGREGATE LIABILITY EXCEED THE LESSER OF (A) ONE HUNDRED DOLLARS ($100) OR (B) THE AMOUNTS ACTUALLY PAID OR PAYABLE BY SUPPLIER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MERCADO DE MEZCAL, ITS RELATED ENTITIES, AND/OR ITS OR THEIR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, LOSS OF USE, DATA OR PROFITS, OR ANY OTHER DAMAGES OR LOSSES OF ANY TYPE OR KIND ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE SERVICE, MERCADO DE MEZCAL CONTENT, AND ANY INFORMATION, SERVICES, SOFTWARE, OR INTELLECTUAL PROPERTY, PROVIDED THROUGH OR IN CONNECTION WITH THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY MATERIALS, THIRD PARTY SOFTWARE OR SERVICES), OR FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF THE PROCESSING, SALE, PURCHASE, DELIVERY OR CONSUMPTION OF ALCOHOLIC BEVERAGES, INCLUDING ANY CLAIM, DEMAND OR DAMAGES ARISING FROM ANY TRANSACTION THROUGH THE SERVICE INITIATED OR COMPLETED BETWEEN SUPPLIER AND ANY SERVICE USER, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN SUPPLIER AND ANY THIRD PARTY SERVICE PROVIDER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICE OR IS REFERRED BY THE SERVICE, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF MERCADO DE MEZCAL, ITS RELATED ENTITIES AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUPPLIER EXPRESSLY WAIVES AND RELEASES MERCADO DE MEZCAL FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO SUPPLIER’S USE OF THE SERVICE, ANY SERVICES OFFERED VIA USE OF THE SERVICE, AND ANY THIRD PARTY DELIVERY SERVICE PROVIDERS. MERCADO DE MEZCAL WILL NOT BE A PARTY TO DISPUTES OR NEGOTIATIONS OF DISPUTES BETWEEN SUPPLIER AND SUCH THIRD PARTY DELIVERY SERVICE PROVIDERS.
Each party acknowledges that the foregoing limitations are an essential element of the Agreement between the Parties and that in the absence of such limitations the terms set forth in these Terms and Conditions would be substantially different.
- Force Majeure. Neither Party will be deemed to be in default of or to have breached any provision of these Terms and Conditions as a result of any delay, failure in performance or interruption of service (except for failure to timely pay), resulting from acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires or other catastrophes or occurrences which are beyond such Party’s reasonable control. Notwithstanding the foregoing, if any excusable delay or failure to perform by a Party exceeds twenty (20) days, the other Party shall have the right to terminate these Terms and Conditions, if applicable, without liability, except that Supplier will continue to be liable for payment of any fees in accordance with Section 5.
13.1 Assignment. Supplier may not assign or transfer any of its rights or obligations under these Terms and Conditions except to and among its Related Entities without the prior written consent of Mercado de Mezcal. Mercado de Mezcal may assign or delegate these Terms and Conditions or any or all of its rights and obligations under these Terms and Conditions to a Related Entity or to a successor in interest in connection with the merger, consolidation, reorganization or sale of all or substantially all of its assets or equity or that portion of its business to which these Terms and Conditions relates. Any attempted assignment or delegation in violation of this Section will be void and without effect. Subject to the foregoing, these Terms and Conditions shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
13.2 Governing Law; Dispute Resolution. This Agreement shall be governed by and construed in accordance with the Laws of the Commonwealth of Massachusetts, without regard to the conflict of law principles thereof. The Parties irrevocably and unconditionally agree that any legal proceeding arising under or in connection with these Terms and Conditions, except for those seeking injunctive relief, will be brought exclusively in the state or federal court located in Boston, Massachusetts. The Parties each agree to submit to the exercise of personal jurisdiction of such courts for the purpose of litigating all such claims or disputes, and waive any objection as to inconvenient forum.
13.3 Equitable Relief. The Parties agree that a Party’s breach of the confidentiality provisions of these Terms and Conditions or infringement or violation of the other Party’s intellectual property rights, may cause irreparable damage to the other Party and that in the event of such breach, infringement or violation by a Party, the other Party shall have, in addition to any and all remedies at law, the right to seek an injunction, specific performance or other equitable relief in a court of law.
13.4 Severability. If any provision of these Terms and Conditions (or any portion thereof) or the application of any such provision (or any portion thereof) to any person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof (or the remaining portion thereof) or the application of such provision to any other persons or circumstances, and the Parties shall endeavor to fulfill the intent of the severed provision to the extent permitted by applicable Law.
13.5 Notices. All notices to be given under these Terms and Conditions shall be in writing and shall be personally served, sent by certified or registered U.S. mail, return receipt requested, or by fax or email to the addresses designated by the Parties at the time Supplier registers for the Service. If receipt of such notice is refused or a Party has changed its address(es) without informing the other Party, the notice shall be deemed to have been given and received upon the seventh (7th) day following the date upon which it is first postmarked by the U.S. postal service or attempted to be delivered in person. If the notice is delivered by fax, it will be deemed to have been given and received when the sender receives confirmation of delivery. If the notice is delivered by email, it will be deemed to have been given and received when the recipient, by an email sent to the sender at the email address designated by the sender, or by a notice delivered by another method in accordance with this Section, acknowledges having received that email (with an automatic “read receipt” not constituting acknowledgment of an email for purposes of this Section).
13.6 Relationship. The Parties to these Terms and Conditions are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency between the Parties. Neither Party shall have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
13.7 Waiver; Cumulative Remedies. No failure of either Party to exercise or enforce any of its rights under these Terms and Conditions shall act as a waiver of such right.Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
13.8 Negotiated Document. The Parties agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of these Terms and Conditions.
13.9 Headings; “Includes” and “Including”. All captions, titles or section headings of these Terms and Conditions are for ease of reference only, shall not affect the interpretation or construction of any provisions of these Terms and Conditions, and shall not be deemed part of these Terms and Conditions. Wherever the word “including” or “include” shall appear in these Terms and Conditions, such term shall be construed to mean “including without limitation” or “include without limitation,” as the case may be.
13.10 Entire Agreement. These Terms and Conditions and the ordering document(s) completed by Supplier at the time of registration contain the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as otherwise provided herein, supersede and replace all other prior and contemporaneous agreements between the Parties regarding such subject matter whether written or oral. This Agreement may not be amended by Supplier except by an instrument in writing signed by an authorized officer of Mercado de Mezcal.