This Agreement is entered into by and between you (“Merchant”, “you”, “your”) and Oak, Inc. (“Oak”, “Oak POS”, “we”, “our” or “us”), effective as of the date you created or started using an account under your name with Oak, Inc. This document explains the terms that govern your use of the Service and additional legal terms, including provisions that limit our liability to you and require individual arbitration for any potential legal dispute. To use the Services, you must accept all of the terms of this Agreement.
1. BACKGROUND. Oak has developed the Oak Rental Management solution, a mobile, scalable, and web-based solution for rental businesses to run the Merchant’s operations (the “Service”). Merchant wishes to use the Service, and Oak desires to make the Service available to Merchant, subject to the following terms and conditions.
2. DESCRIPTION OF SERVICE
2.1 Service. The Service is described in Exhibit A (Description of Service) to this Agreement.
2.2 Access. Subject to the terms of this Agreement, including but not limited to Merchant’s payment of the fees set forth in Exhibit B (Fees), Oak will provide the Service via an online and mobile user interface specified in Exhibit A (Description of Oak Service).
2.3 Responsibility for Software and Content Hosting. Oak shall, at its own expense, provide for the hosting of the Oak Server Software which is accessible as part of the Service, provided that nothing herein shall be construed to require Oak to provide for, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Merchant or any Authorized user to provide access from the Internet to the Service.
3.1 License Grant. Subject to the terms and conditions of this Agreement, Oak grants to Merchant a non-exclusive, non-transferable license during the term, solely for Merchant’s internal business purposes and in accordance with the limitations set forth in Exhibit A (Description of Oak Service), (a) to access, use, perform, and digitally display the Software as required for use of the Service and in accordance with the associated documentation; and (b) to use and reproduce a reasonable number of copies of the documentation solely to support Merchant’s use of the Service.
3.2 Limitations. The Service, Software, documentation, and all other materials provided by Oak hereunder, including but not limited to all manuals, reports, records, programs, data and other materials, and all Intellectual Property Rights in each of the foregoing, are the exclusive
property of Oak and its suppliers. Merchant agrees that it will not, and will not permit any Authorized User or other party to: (a) permit any party to access the Software or documentation or use the Service, other than the Authorized Users; (b) modify, adapt, alter or translate the Software or documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Software or documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Software; (e) use or copy the Software or documentation except as expressly allowed under this subsection; or (f) disclose or transmit any data contained in the Software to any individual other than an Authorized User, except as expressly allowed herein. Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of Merchant’s jurisdiction require Oak to give Merchant the right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that Rental Partner must first request such information from Oak and Oak may, in its discretion, either provide such information to Merchant or impose reasonable conditions, including a reasonable fee, on such use of the source code for the Software to ensure that Oak’s and its suppliers’ proprietary rights in the source code for the Software are protected. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Merchant regarding the Service, Software, documentation, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Software.
3.3 Ownership. The Service, Software, documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Oak and its suppliers. All rights in and to the Service, Software and documentation not expressly granted to Merchant in this Agreement are reserved by Oak and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Merchant regarding the Software, documentation, and Service or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Software.
3.4 Open Source Software. Certain items of software may be provided to Merchant with the Software and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.1 or 9. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Merchant’s rights under, or grants Merchant rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Oak makes such Open Source Software, and Oak’s modifications to that Open Source Software, available by written request at the notice address specified below.
4. FEES AND EXPENSES; PAYMENTS
4.1 Fees. In consideration for the access rights granted to Merchant and the Service performed by Oak under this Agreement, Merchant will pay to Oak the fees set forth in Exhibit B (Fees). Oak shall be entitled to withhold performance and discontinue access to the Service until all amounts due are paid in full.
4.2 Taxes and Interest. The fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Merchant will be responsible for payment of all such taxes (other than taxes based on Oak’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the delivery of the Service, or the license of the Software to Merchant. Merchant will make all payments of fees to Oak free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Oak will be Merchant’s sole responsibility, and Merchant will provide Oak with official receipts issued by the appropriate taxing authority, or such other evidence as the Oak may reasonably request, to establish that such taxes have been paid. Merchant shall indemnify and defend Oak in connection with any proceedings brought by any taxing authorities in connection with this Agreement. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less. Merchant will permit Oak or its representatives to review Merchant’s relevant records and inspect Merchant’s facilities to ensure compliance with this Agreement.
5. MERCHANT CONTENT AND RESPONSIBILITIES
5.1 Merchant Content. Merchant represents and warrants that the information provided by it to Oak is and will be correct, and that it is responsible for the accuracy of all information concerning Merchant, Merchant’s inventory, and any other information (including but not limited to photographs and descriptions of Merchant’s inventory) provided or made available to Oak pursuant to this Agreement. If any changes to Merchant Content should occur, or Merchant becomes aware of any inaccuracies in the information it has provided to Oak, it is Merchant’s sole responsibility to either make corrective changes (if applicable), or report such inaccuracies/changes to Oak.
5.2 Merchant Content License; Ownership. The Merchant Content hosted by Oak as part of the Service, and all worldwide Intellectual Property Rights in it, is the exclusive property of Merchant or its suppliers. Merchant grants Oak a non-exclusive, worldwide, royalty- free, and fully-paid license to use the Merchant Content:
(a) To provide the Service to Merchant hereunder;
(b) To use Transaction Data for its internal business purposes and
to publish or disclose Anonymous Data to third parties in its sole discretion. The right to use the Anonymous Data is irrevocable.
All rights in and to the Merchant Content not expressly granted to Oak in this Agreement are reserved by Merchant.
5.3 Oak Directory. Merchant hereby grants to Oak, during the term of the Agreement, a non-exclusive license to use, reproduce, display and publish the Merchant Content and Merchant Marks for the purpose of creating links from the Oak website to Merchant’s inventory on your website or the Oak Online Storefront. “Merchant Marks” shall mean trademarks, service marks, trade names, logos or other source identifiers owned by Merchant.
5.4 Merchant Responsibilities. Merchant acknowledges and agrees that Merchant is responsible for ensuring that it can fulfill all reservations, bookings and rentals made through the Service. If Merchant cannot honor any reservation, booking or rental made through the Service, Merchant shall promptly communicate such change to the relevant customer and shall indemnify and hold Oak harmless from any claims by Merchant’s customer related thereto.
5.5 Authorized Users Access to Service. Merchant may permit any Authorized Users to access and use the features and functions of the Service as contemplated by this Agreement. User IDs cannot be shared or used by more than one Authorized User at a time. Merchant shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Oak promptly of any such unauthorized use known to Merchant.
5.6 Merchant Warranty. Merchant represents and warrants that any Merchant Content hosted by Oak as part of the Service shall not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Oak’s system or data; or (e) otherwise violate the rights of a third party. Oak is not obligated to back up any Merchant Content; the Merchant is solely responsible for creating backup copies of any Merchant Content at Merchant’s sole cost and expense. Merchant agrees that any use of the Service contrary to or in violation of the representations and warranties of Merchant in this section constitutes unauthorized and improper use of the Service.
5.7 Merchant Responsibility for Data and Security. Merchant and its Authorized Users shall have access to the Merchant Content and shall be responsible for all changes to and/or deletions of Merchant Content and the security of all passwords and other Access Protocols required in order the access the Service. Oak is not responsible for any loss of Merchant Data maintained by Oak hereunder. Merchant shall have the ability to export Merchant Content out of the Service and is encouraged to make its own back ups of the Merchant Content. Merchant shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Merchant Content.
6. WARRANTIES AND DISCLAIMERS
6.1 Limited Warranty. Oak warrants to Merchant that the Software will operate free from Errors during the term of the Agreement. Provided that Merchant notifies Oak in writing of any breach of the foregoing warranty during the term hereof, Oak shall, as Merchant’s sole and exclusive remedy, provide the support set forth in Exhibit A (Software Service) to this Agreement. This warranty gives Merchant specific legal rights, and Merchant may also have other rights which vary from jurisdiction to jurisdiction.
6.2 Disclaimer. THE LIMITED WARRANTY SET FORTH IN THIS SECTION IS MADE FOR THE BENEFIT OF MERCHANT ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, DOCUMENTATION, AND SERVICE ARE PROVIDED “AS IS,” AND OAK MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANT ELIGIBILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION, OR SERVICE (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICE PROVIDED TO MERCHANT BY OAK. OAK DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SOFTWARE AND SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE.
7. LIMITATION OF LIABILITY
7.1 Liability and damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SQUARE, ITS PROCESSORS, ITS SUPPLIERS, OR ITS LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL SQUARE BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR SQUARE ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SQUARE, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE SERVICE; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR DATA OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR DATA POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) SELLER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL SQUARE, ITS PROCESSORS, AGENTS, SUPPLIERS, OR LICENSORS (OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF SQUARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
7.2 Basis of the Bargain. The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
8.1 Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or Service or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the Software, documentation, and all enhancements and improvements thereto will be considered Confidential Information of Oak, and the Customer Data will be considered Confidential Information of Merchant.
8.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. If Merchant is the Receiving Party, Merchant will limit access to the Confidential Information to Authorized Users. If Oak is the Receiving Party, Oak will limit access to the Confidential Information to those employees and service providers who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.
8.3 Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
9.1 By Oak. Oak will defend at its expense any suit brought against Merchant, and will pay any settlement Oak makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Software or the Service misappropriates any trade secret recognized under the Uniform Trade Secrets Act or infringes any copyright or United States patent issued prior to and while this agreement is in effect. If any portion of the Software or the Service becomes, or in Oak’s opinion is likely to become, the subject of a claim of infringement, Oak may, at Oak’s option: (a) procure for Merchant the right to continue using the Software or the Service; (b) replace the Software or the Service with non-infringing software or Service which do not materially impair the functionality of the Software or the Service; (c) modify the Software or the Service so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid by Merchant to Oak for the remainder of the term then in effect, and upon such termination, Merchant will immediately cease all use of the Software and Service. Notwithstanding the foregoing, Oak shall have no obligation under this section or otherwise with respect to any infringement claim based upon (w) any use of the Software or the Service not in accordance with this Agreement or as specified in the associated documentation; (x) any use of the Software or the Service in combination with other products, equipment, software or data not supplied by Oak; or (y) any modification of the Software or the Service by any person other than Oak or its authorized agents. This subsection states the sole and exclusive remedy of Merchant and the entire liability of Oak, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
9.2 By Merchant. Merchant will defend at its expense any suit brought against Oak, and will pay any settlement Merchant makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party arising out of or related to any rental agreements between Merchant and any user of the Site, any claims related to the quality, safety or legality of the inventory advertised by Merchant on the Site, or alleging that the Merchant Data misappropriates any trade secret reorganized under the Uniform Trade Secret Act or otherwise violates the rights of any third party or arising out of or relating to Merchant’s breach of Section 3. If Merchant has a dispute with one or more users of the Site, Merchant hereby releases Oak (and its officers, directors, agents, subsidiaries, joint venturers, and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If Merchant is a California resident, Merchant waives California Civil Code §1w542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” This subsection states the sole and exclusive remedy of Oak and the entire liability of Merchant, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
9.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
10.1 Term & Termination. If your Oak Account is terminated or suspended for any reason or no reason, you agree: (a) to continue to be bound by this Agreement, (b) to immediately stop using the Services, (c) that the license provided under this Agreement shall end, (d) that we reserve the right (but have no obligation) to delete all of your information and account data stored on our servers, and (e) that Square shall not be liable to you or any third party for termination or suspension of access to the Services or for deletion of your information or account data.
10.2 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate (except that Oak’s licenses pursuant to Section 5.1(c) shall survive any termination or expiration of this Agreement; and (b) within ten (10) days after the effective date of termination, each party shall comply with the obligations to return all Confidential Information of the other party, as set forth in Section 8. Sections 3.2, 4, 6, 7, 8, 9, 10.3, 11 and 12 will survive expiration or termination of this Agreement for any reason.
11.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Merchant hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which Oak’s principal place of business is located for any lawsuit filed there against Merchant by Oak arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The laws of the jurisdiction where Merchant is located may be different from California law. Merchant shall comply with all laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Software or Service hereunder.
11.2 Export. Merchant agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Oak, or any products utilizing such data, in violation of the United States export laws or regulations.
11.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, Merchant agrees that Section 7 will remain in effect notwithstanding the unenforceability of any provision in Section 6.
11.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.5 Injunctive Relief. Each party acknowledges that its breach of this Agreement may cause irreparable damage to the other party and hereby agrees the other party will be entitled to seek injunctive relief under this Agreement, as well as such further relief as may be granted by a court of competent jurisdiction.
11.6 No Assignment. Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
11.7 Force Majeure. Any delay or failure in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, telecommunications or Internet unavailability, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible. Oak shall not be liable for any such delay or failure resulting from Merchant’s or third party’s hardware or software; actions or inactions of Merchant or third parties; use of the Service after Oak advised Merchant to modify its use of the Service if Merchant did not modify its use as advised; or acts or omissions of Merchant or its employees, agents, contractors or vendors or anyone gaining access to the Service by means of Merchant’s passwords or equipment.
11.8 Independent Contractors. Oak’s relationship to Merchant is that of independent contractor, and neither party is an agent or partner of the other. Neither party has, and will not represent to any third party that it has, any authority to act on behalf of the other party.
11.9 Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the first page of the Agreement by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
11.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
11.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Merchant and the Oak.
12. DEFINITIONS. Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
12.1 “Access Protocols” means the user names, passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Merchant or any Authorized Users to access the Service.
12.2 “Anonymous Data” means Transaction Data that excludes information that makes the data personally identifiable with any Merchants or Merchant customers.
12.3 “Authorized User” means any individual who is an employee of Merchant or such other Merchant contractor as may be approved by Oak in writing, to access the Service pursuant to Merchant’s rights under this Agreement.
12.4 “Error” means a reproducible failure of the Software to substantially conform to the documentation.
12.5 “Error Corrections” means bug fixes or workarounds intended to correct Errors in the Software.
12.6 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
12.7 “iPad Tablet Application” means the software application developed by Oak to manage the Merchant’s business.
12.8 “Marketplace” means the Oak.com website where the Merchant’s business and products are displayed and made available for real-time booking online.
12.9 “Merchant Content” means any content provided by Merchant to Oak, including but not limited to the names and any data related to Merchant customers (“Customer Data”) and data generated by Oak in the course of providing Service (“Transaction Data”).
12.10 “Oak Application” means the software application developed by Oak to pull information related to purchases by Merchant customers as well as details related to items sold by the Merchant. The POS Application consists of a client portion (the “Oak Software Client”) that is downloaded by the Merchant and the server portion (the “Oak Server Software”) that is hosted and maintained by Oak.
12.11 “Software” means the Mobile Application, the POS Application, and any other software and/or associated user interfaces and related technology that Oak makes available pursuant to this Agreement.
12.12 “Supported Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by Oak as required for use of the Service.
Exhibit A Description of Oak Service
The Oak Rental Management service is a cloud-based solution that includes:
Point-of-Sale Application (iPad and Web)
Reporting and Analytics
Online Booking Solution
Hardware: hardware is not included in the monthly subscription charge. The hardware can be ordered through Oak’s hardware partner, Zephyr Hardware via the online store at store.oakpos.com.
Exhibit B Fees
Fees are agreed to by Merchant when signing-up for Service and potential add-ons. Billing terms are explained on the Billing Policy document available on the oakpos.com website.
By placing a credit card on file with Oak, Merchant expressly authorizes Oak to charge the Merchant’s credit card for fees owed to Oak pursuant to this Agreement. Merchant agrees it is a violation of this Agreement to circumvent or manipulate Oak’s fee structure, the billing process or fees owed to Oak.