- Submit Monthly Data By The 10th – We require that you submit the data from your previous month by the 10th of each month.
- Data Automation – If you have an automated data connection from your POS to Community Benchmark, each month you will need to “verify” your transferred numbers are correct.
- Final Submission – Once you “Finalize & Submit” your monthly numbers to the Community, you will not be able to edit those numbers.
Definition of Terms:
“Account” means an account enabling a person to access and use the Hosted Services, including both association accounts and user accounts;
“Agreement” means this agreement including any Schedules, and any amendments to this Agreement.
“Business Day” means any weekday other than a weekend or public holiday;
“Client Member” means a winery that is submitting monthly data and receiving reports.
“Company” means Community Benchmark, Inc.
“Customer Confidential Information” means any and all data, information, documents, and other ideas limited for use by only Company or Client Member Members that can be used to distinguish or trace the identity of the Client Member Member, either alone or when combined with other Client Member Member or Client Member Member identifying information that is linked or linkable to the specific Client Member Member.
“Customer Data” means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer but excluding aggregate metrics and analytics data relating to the use of the Platform and server log files;
“Customer Personal Data” means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement, but excluding data with respect to which the Provider is a data controller;
“Effective Data” is the date upon which the Client Member Member agrees.
“Services” is defined above in section labeled Services.
1. Data Submission
In order to ensure accurate data in a timely manner for all Client Members, we require the following:
1.1. Each Client Member agrees to submit each monthly data set by the 10th of each month. Company will finalize the monthly report on the 18th of each month. Client Member will not be able to view Community Benchmarks for months where they have not submitted their monthly data.
1.2 Each Client Member will be able to “internally save” their numbers as much as necessary but will only Submit monthly numbers to the pool of Community Benchmarks once. After Submission to the pool of Community Benchmarks, you will not be able to edit your monthly numbers.
1.3. Each Client Member that chooses an automated data connection from your Point of Sale or other system, will need to “Review & Verify” that their transferred numbers are correct.
2. Mediation and Possible Arbitration.
If a dispute arises, the parties will try in good faith to settle it through mediation conducted by a mediator to be mutually selected. The parties will share the costs of mediation equally. Each party will cooperate fully and fairly with the mediator and will attempt to reach a mutually satisfactory compromise to the dispute. If the dispute is not resolved within 30 days after it is referred to the mediator, it will be arbitrated by an arbitrator to be mutually selected. Judgment on the arbitration award may be entered in any court that has jurisdiction over the matter. Costs of arbitration, including lawyers’ fees, will be allocated by the arbitrator.
This Agreement shall come into force upon when the Client Member Member agrees to these terms. This Agreement shall continue in force until one year after agreement unless renewed for another year subject to termination in accordance with Clause 18 or any other provision of this Agreement.
4. Hosted Services
4.1 The Company shall ensure that the Platform will, on the Effective Date, automatically generate an Account for the Client Member Members and provide to the Client Member Member ability to modify login details for that Account.
4.2 The Company hereby grants to the Client Member and Client Member Members a worldwide, non-exclusive licence to use the Hosted Services by means of Internet Explorer, Chrome, Firefox, and Safari internet browsers during the Term.
4.3 The licence granted by the Company to the Client Member under Clause 4.2 is subject to the following limitations:
(a) the Hosted Services may only be used by the officers, employees, agents and subcontractors of the Client Member;
(b) the Hosted Services may only be used by the named Client Member Members identified in Schedule 1. The Client Member may change or remove a designated named user on an ad hoc basis. Adding a designated user may incur additional fees.
4.4 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Company to the Client Member under Clause 4.2 is subject to the following prohibitions:
(a) the Client Member must not sub-license its right to access and use the Hosted Services;
(b) the Client Member must not permit any unauthorised person to access or use the Hosted Services;
(c) the Client Member must not use the Hosted Services to provide services to third parties;
(d) the Client Member must not republish or redistribute any content or material from the Hosted Services except to Client Member Members without prior written consent of Company;
(e) the Client Member must not make any alteration to the Platform, except as permitted by data entry and modifications.
4.5 The Client Member shall use reasonable endeavours, including reasonable security measures relating to Association Accounts access details, to ensure that no unauthorised person may gain access to the Hosted Services using an Association Account.
4.6 The Company shall use reasonable endeavours to maintain the availability of the Hosted Services to the Client Member , but does not guarantee 100% availability.
4.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Client Member’s computer systems or networks;
(d) any breach by the Client Member of this Agreement; or
(e) scheduled maintenance carried out in accordance with this Agreement.
4.7 For the avoidance of doubt, the Client Member has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
5. Maintenance Services
5.1 The Company shall provide the Maintenance Services to the Client Member during the Term.
5.2 The Company shall where practicable give to the Client Member at least 5 Business Days prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to the Company’s other notice obligations under this main body of this Agreement.
6. Support Services
6.1 The Company shall provide the Support Services to the Client Member during the Term.
6.2 The Company shall respond promptly to all requests for Support Services made by the Client Member through the Support Services.
7. Client Member Data
7.1 The Client Member hereby grants to the Company a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client Member Data to the extent reasonably required for the performance of the Company’s obligations and the exercise of the Company’s rights under this Agreement subject to Non-Disclosure restrictions in this Agreement. The Client Member also grants to the Company the right to sub-license these rights to its hosting, connectivity and telecommunications service Companys, subject to any express restrictions elsewhere in this Agreement.
7.2 The Company shall create a back-up copy of [the Client Member Data, shall ensure that each such copy is sufficient to enable the Company to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 30 days.
8.1 The Company shall issue invoices for the Charges to the Client Member according to the Billing & Procedure above.
8.2 If the Client Member does not pay any amount properly due to the Company under this Agreement, the Company may:
(a) charge the Client Member interest on the overdue amount at the rate of 8% per annum \which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month;
9.Company’s confidentiality obligations
9.1 The Company must:
(a) keep the Client Member Confidential Information strictly confidential;
(b) not disclose the Client Member Confidential Information to any person without the Client Member’s prior written consent, and then only under conditions of confidentiality approved in writing by the Client Member.
(c) use the same degree of care to protect the confidentiality of the Client Member Confidential Information as the Company uses to protect the Company’s own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Client Member Confidential Information; and.
9.2 Notwithstanding Clause 12.1, the Company may disclose the Client Member Confidential Information to the Company’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Client Member Confidential Information for the performance of their work with respect to this Agreement and who are bound by a written agreement to protect the confidentiality of the Client Member Confidential Information.
9.3 This Clause 12 imposes no obligations upon the Company with respect to Client Member Confidential Information that:
(a) is known to the Company before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Company; or
(c) is obtained by the Company from a third party in circumstances where the Company has no reason to believe that there has been a breach of an obligation of confidentiality.
9.4 The restrictions in this Clause 12 do not apply to the extent that any Client Member Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Company on any recognised stock exchange.
9.5 The provisions of this Clause 12 shall continue in force indefinitely following the termination of this Agreement.
10. Data protection
10.1 The Company shall comply with the Data Protection Laws with respect to the processing of the Client Member Confidential Data, Client Member Data, and Client Member Personal Data.
10.2 The Client Member shall only supply to the Company, and the Company shall only process, in each case under or in relation to this Agreement, the Personal Data of data subjects falling within the categories specified in Part 1 of Schedule 3 (Data processing information) and of the types specified in Part 2 of Schedule 3 (Data processing information); and the Company shall only process the Client Member Personal Data for the purposes specified in Part 3 of Schedule 3 (Data processing information).
10.3 The Company shall only process the Client Member Confidential Data, Client Member Data, and Client Member Personal Data on the documented instructions of the Client Member and the Platform.
10.4 Notwithstanding any other provision of this Agreement, the Company may process the Client Member Confidential Data, Client Member Data, and Client Member Personal Data if and to the extent that the Company is required to do so by applicable law. In such a case, the Company shall inform the Client Member of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
10.5 The Company shall ensure that persons authorised to process the Client Member Confidential Data, Client Member Data, and Client Member Personal Data are bound by a written agreement to protect the confidentiality of the Client Member Confidential Information.
10.6 The Company and the Client Member shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the who are bound by a written agreement to protect the confidentiality of the Client Member Confidential Information, including those measures specified in Part 4 of Schedule 3 (Data processing information)].
10.7 As at the Effective Date, the Company is hereby authorised by the Client Member to engage, as sub-processors with respect to who are bound by a written agreement to protect the confidentiality of the Client Member Confidential Information.
10.8 The Company shall assist the Client Member in ensuring compliance with [the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing. The Company shall report any Personal Data breach relating to the who are bound by a written agreement to protect the confidentiality of the Client Member Confidential Information to the Client Member within 48 hours following the Company becoming aware of the breach. The Company may charge the Client Member at its standard time-based charging rates for any work performed by the Company at the request of the Client Member pursuant to this Clause 13.13.
10.9 The Company shall make available to the Client Member all information necessary to demonstrate the compliance of the Company with its obligations under this Clause 13.
10.10 The Company shall, at the choice of the Client Member, delete or return all of the Client Member Personal Data to the Client Member after the provision of services relating to the processing, and shall delete existing copies save to the extent that requires storage of the relevant Personal Data.
11.1 The Company warrants to the Client Member that:
(a) the Company has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
(b) the Company will comply with all applicable legal and regulatory requirements applying to the exercise of the Company’s rights and the fulfilment of the Company’s obligations under this Agreement; and
(c) the Company has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.
11.2 The Company warrants to the Client Member that:
(a) the Platform and Hosted Services will conform in all material respects with the Hosted Services Specification;
(d) the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
(e) the Platform will incorporate security features reflecting the requirements of industry best practices.
11.3 The Company warrants to the Client Member that the Hosted Services[, when used by the Client Member in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under California State Law.
11.4 The Company warrants to the Client Member that the Hosted Services, when used by the Client Member in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person.
11.5 If the Company reasonably determines, or any third party alleges, that the use of the Hosted Services by the Client Member in accordance with this Agreement infringes any person’s Intellectual Property Rights, the Company may at its own cost and expense:
(a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the Client Member the right to use the Hosted Services in accordance with this Agreement.
11.6 The Client Member warrants to the Company that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
11.7 All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
12. Acknowledgements and warranty limitations
12.1 The Client Member acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Company gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
12.2 The Client Member acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Company gives no warranty or representation that the Hosted Services will be 100% entirely secure.
12.3 The Client Member acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and the Company does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
12.4 The Client Member acknowledges that the Company will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Company does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Client Member will not give rise to any legal liability on the part of the Client Member or any other person.
13. Limitations and exclusions of liability
13.1 Company’s liability to Client Member with regard to any of the Services or other Company service is limited to the amount paid to and received by Company for the total amount paid and payable by the Client Member to the Company under this Agreement in the 12 month period preceding the commencement of the event or event or other Company service (see Termination provision).
13.2 In no event shall Company be liable to any end user or any other entity for any special, consequential, or other damages. Client Member and Company shall take all necessary measures to preclude either party from being made a party to any lawsuit or claim regarding any Company Services provided to Client Member.
14. Force Majeure Event
14.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement[ (other than any obligation to make a payment)], that obligation will be suspended for the duration of the Force Majeure Event.
14.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
14.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
- The Company may suspend the provision of the Hosted Services, Maintenance Services, and Support Services if any amount due to be paid by the Client Member to the Company under this Agreement is overdue, and the Company has given to the Client Member at least 15 days written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
15.1 Either party may terminate this Agreement by giving to the other party at least 30 days’ written notice of termination.
15.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.
16. Effects of termination
16.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely).
16.2 Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.