“Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Merchant Materials; or (ii) Merchant’s and/or its Authorized Users’ Use of the Subscription Services.
“Company IP” means the Subscription Services, the underlying software, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Subscription Services or any Professional Services, Documentation, and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all intellectual property rights in and to any of the foregoing.
“Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Company to Merchant (including any revised versions thereof) relating to the Subscription Services, which may be updated from time to time upon notice to Merchant.
“End Users” means end users of the Sites, including Merchant’s customers and potential customers.
“Licensed Volume” means the limits, volume or other measurement or conditions of permitted Use for the applicable Subscription Service as set forth in the applicable Order Form, including any limits on the number of Authorized Users permitted to Use the Subscription Services or the number of web pages, Sites, or returns/exchanges based on Merchant’s subscription tier.
“Merchant Materials” means all information, data, content and other materials, in any form or medium, that is transmitted or otherwise provided by or on behalf of Merchant or any End Users through the Subscription Services or to Company in connection with Merchant’s Use of the Subscription Services, but excluding, for clarity, Aggregate Data and any other Company IP.
“Order Form” means a (i) mutually executed order form or other mutually agreed upon ordering document; (ii) purchase order issued by Merchant and accepted by Company in writing; or (iii) quote issued by Company and accepted by Merchant, in each case which references this Agreement and sets forth the applicable Subscription Services and/or Professional Services to be provided by Company.
“Professional Services” means the customization, integration, implementation and/or other professional services, if any, described in the applicable Order Form.
“Subscription Services” means the proprietary technology platform provided by Company, as more particularly described or identified in the applicable Order Form.
“Use” means to use and access the Subscription Services in accordance with this Agreement and the Documentation, including by making the Subscription Services available to End Users via the Sites.
2. Subscription Services
(a) Services. Company will provide the Subscription Services (and if applicable, the Professional Services) to Merchant in accordance with the terms and conditions set forth in the applicable Order Form and this Agreement and any limitations, including without limitation, in connection with the Licensed Volume.
(b) Right to Use the Subscription Services. As between Merchant and Company, Company owns and retains all right, title and interest in and to the Subscription Services, Documentation and the Professional Services, including all intellectual property rights therein and Merchant further assigns to Company any feedback provided by or on behalf of Merchant. Subject to Merchant’s compliance with the terms and conditions of this Agreement, Company hereby grants to Merchant a limited, non-exclusive, non- transferable (except pursuant to Section 12(a)) right to Use the Subscription Services in accordance with, and subject to, the Licensed Volume during the applicable Term. Subject to the limited rights expressly granted hereunder, Company reserves and, as between the Parties will solely own, the Company IP and all rights, title and interest in and to the Company IP. All intellectual property rights created in any Company IP will vest solely in Company upon creation, and to the extent that sole ownership does not originally vest in Company, such intellectual property rights are hereby automatically and irrevocably assigned by Merchant to Company. Merchant will take all actions and execute all documents reasonably requested by Company to give effect to the preceding sentence. No rights are granted to Merchant hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
(c) Use Restrictions. Merchant will not and will not permit any person or entity (including, without limitation, Authorized Users and End Users) to, directly or indirectly: (i) copy, modify or create any derivative work of any portion of the Subscription Services or the Documentation; (ii) reverse engineer, decompile, decode, or disassemble or otherwise attempt to derive or gain improper access to any software component of the Subscription Services, in whole or in part; (iii) frame, mirror, sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan any portion of the Subscription Services to any other person or entity, or otherwise allow any person or entity to Use the Subscription Services for any purpose other than for the benefit of Merchant in accordance with this Agreement; (iv) Use the Subscription Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of any person or entity, or that violates any applicable law; (v) access or search the Subscription Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Subscription Services features provided by Company for use expressly for such purposes; or (vi) Use the Subscription Services, Documentation or any other Company Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Subscription Services.
(d) Authorized Users. Merchant will not allow any person or entity other than its employees or contractors that it authorizes to Use the Subscription Services on its behalf (“Authorized Users”), excluding, for the avoidance of doubt, making the Subscription Services available to End Users via the Sites. Merchant may permit Authorized Users to Use the Subscription Services, provided that (i) the Use, including the number of Authorized Users, does not exceed the Licensed Volume; and (ii) Merchant ensures that all Authorized Users comply with the terms and conditions of this Agreement, including, without limitation, with Merchant’s obligations and the restrictions set forth in Section 2(c). Company may suspend or terminate any Authorized User’s access to the Subscription Services upon notice to Merchant in the event that Company reasonably determines that such Authorized User violated this Agreement. Merchant is responsible for all acts or omissions by its Authorized Users in connection with their Use of the Subscription Services and for any use of the Subscription Services by End Users via the Sites.
In consideration for Company providing the Subscription Services and, if applicable, the Professional Services, Merchant will pay Company the non-refundable fees set forth in the applicable Order Form (“Fees”) in accordance with the payment terms set forth therein and without offset or deduction. If Merchant has agreed to automatic billing, Company will charge Merchant’s selected payment method (such as a credit card, debit card, or other method available in Merchant’s home country) for any Fees on the applicable payment date, including any applicable taxes. If Company cannot charge Merchant’s selected payment method for any reason (such as expiration or insufficient funds), Merchant remains responsible for any uncollected amounts, and Company will attempt to charge the payment method again as Merchant may update its payment method information. In accordance with local law, Company may update information regarding Merchant’s selected payment method if provided such information by Merchant’s financial institution.
In the event Merchant’s return volume exceeds the monthly return limits based on the applicable tier set forth in the Order Form, within ninety (90) days of notice from Company, Merchant and Company will discuss in good faith to execute an updated Order Form that reflects the applicable tier based on Merchant’s actual return volume.
4. Merchant Materials and Data
(a) Company acknowledges that, as between Merchant and Company and except as set forth in Section 5(b), Merchant owns and retains all right, title and interest in and to all Merchant Materials. Company may use, display and modify the Merchant Materials, including Merchant’s names, logos, designs, and other trademarks solely to provide and improve the Subscription Services and Professional Services during the Term (as defined below).
(b) The Parties agree that the terms of the Data Processing Addendum attached hereto as Exhibit A (the “DPA”) shall govern Company’s processing of Personal Data (as defined in the DPA).
5. Representations and Warranties
(a) Each Party represents and warrants to the other Party that: (a) it has full power and authority to enter into this Agreement; and (b) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary actions and do not violate its organizational documents.
(b) Merchant represents and warrants that Company’s use of the Merchant Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Merchant and any third-party.
The initial term of this Agreement begins on the Effective Date and remains in effect for one (1) year (the “Initial Term”). Except as otherwise set forth in the Order Form, following the Initial Term, this Agreement will automatically renew for additional periods of one (1) year (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party provides the other with at least sixty (60) days’ written notice of its intent not to renew this Agreement prior to the end of the then-current Term.
This Agreement shall terminate at any time upon mutual agreement in writing by Company and Merchant. Company may further terminate this Agreement immediately upon written notice to Merchant in the event that Merchant breaches Sections 2(b), 2(c), or 2(d), or infringers or otherwise violates Company’s intellectual property rights in and to the Subscription Services.
8. Effect of Termination
(a) Upon expiration or termination of an Order Form (other than termination pursuant to Section 7), each other Order Form that is then-in effect, if applicable, will remain in effect for the duration of the then-current Term of such Order Form.
(b) Upon expiration or termination of each Order Form: (i) each Party will make no further use of any Confidential Information belonging to the other Party, and will promptly return to the other Party (or destroy) all Confidential Information of the other Party in its possession or control, except for any archived electronic communications which may be stored confidentially, (ii) Merchant’s and its Authorized Users’ right to Use the Subscription Services pursuant to such Order Form will immediately terminate and Merchant shall immediately remove the Subscription Services from the Sites, including any access by End Users; and (iii) all Fees owed by Merchant to Company pursuant to such Order Form will be immediately due; provided that if Merchant terminates the Order Form for cause in accordance with Section 7, Company will refund to Merchant a pro rata amount of any Fees paid up-front based on the remainder of the applicable Term.
(c) The rights and obligations of Company and Merchant contained in Sections 3, 0, 8, 9, 10, 11 and 12 will survive any expiration or termination of this Agreement and Order Forms.
(a) Confidentiality. As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Subscription Services and the Documentation will be deemed Confidential Information of Company. The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Company may use and modify Confidential Information of Merchant in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party may disclose Confidential Information of the Disclosing Party only: (i) to those of its employees, contractors, agents and advisors who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure. The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes. Confidential Information shall not include personal data, which is governed by the DPA.
(b) Exclusions. The obligations in Section 9(a) will not apply to the extent any information: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (ii) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without access to or use of any Confidential Information of the Disclosing Party that can be evidenced in writing; or (iv) is rightfully obtained by the Receiving Party from a third-party without restriction on use or disclosure.
10. Disclaimer; Limitation of Liability
(a) Disclaimer. THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES, AND OTHER COMPANY IP ARE PROVIDED ON AN “AS IS” BASIS, AND COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS TO MERCHANT, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE COMPANY IP, THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED W ARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, COMPANY HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SUBSCRIPTION SERVICES OR PROFESSIONAL SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
FOR THE AVOIDANCE OF DOUBT, THE SUBSCRIPTION SERVICES ARE INTENDED ONLY TO FACILITATE THE RETURN AND EXCHANGE BY END USERS OF PRODUCTS AND SERVICES SOLD BY MERCHANT THROUGH THE SITES, AND THE PROCESSING, FULFILLMENT, AND REFUND OF ANY RETURNS OR EXCHANGES ARE MERCHANT’S SOLE RESPONSIBILITY. IN ADDITION, MERCHANT IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, RULES, REGULATIONS, AND STANDARDS WITH RESPECT TO THE PRODUCTS AND SERVICES OFFERED BY MERCHANT.
(b) Exclusion of Damages. EXCEPT FOR (I) BREACH OF CONFIDENTIALITY, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, (III) BREACH OF MERCHANT’S PAYMENT OBLIGATIONS AND (IV) INFRINGEMENT OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE COMPANY IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES AND PROFESSIONAL SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
(c) Total Liability. EXCEPT FOR (I) COMPANY’S FRAUD OR WILLFUL MISCONDUCT AND (II) LIABILITY WITH RESPECT TO PERSONAL DATA, IN NO EVENT WILL COMPANY’S TOTAL LIABILITY TO MERCHANT OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE COMPANY IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES OR PROFESSIONAL SERVICES EXCEED THE FEES ACTUALLY PAID BY MERCHANT TO COMPANY IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. NOTWITHSTANDING THE FOREGOING, SOLELY FOR LIABILITY WITH RESPECT TO PERSONAL DATA, IN NO EVENT WILL COMPANY’S TOTAL LIABILITY TO MERCHANT OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE COMPANY IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES OR PROFESSIONAL SERVICES EXCEED TWO TIMES (2X) THE FEES ACTUALLY PAID BY MERCHANT TO COMPANY IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE
(d) Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND MERCHANT, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
(a) Indemnification by Company. Subject to Section 11(b), Company will defend Merchant against any claim, suit or proceeding brought by a third-party (“Claims”) alleging that Merchant’s Use of the Subscription Services infringes or misappropriates such third-party’s intellectual property rights, and will indemnify and hold harmless Merchant against any damages and costs awarded against Merchant or agreed in settlement by Company (including reasonable attorneys’ fees) resulting from such Claim.
(b) Exclusions. Company’s obligations under Section 11(a) will not apply if the underlying Claim arises from or as a result of: (i) Merchant’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Merchant Materials or the Sites; (iii) Merchant’s failure to use any enhancements, modifications, or updates to the Subscription Services that have been provided by Company, including use of a prior version of the Subscription Services that has been superseded by a non-infringing version provided by Company; (iv) modifications to the Subscription Services by anyone other than Company; or (v) combinations of the Subscription Services with software, data or materials not provided by Company.
(c) Indemnification by Merchant. Merchant will defend (or settle), indemnify and hold harmless Company from and against any damages and liabilities (including court costs and reasonable attorneys’ fees) awarded in a final judgment against Company, and amounts agreed to in settlement with respect to each of the foregoing, to the extent arising from a Claim against Company that: (i) the Merchant Materials or its use by Company in accordance with this Agreement infringes, misappropriates or violates a third-party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law, rule, or regulation; (ii) is based on Merchant’s or an Authorized User’s Use of the Subscription Services or Documentation to the extent such Use was not in accordance with this Agreement; (iii) is based on the manufacture, sale, return, exchange, distribution or marketing of any Merchant’s products or services or any violation of applicable law, rule, regulation, or standard with respect to Merchant’s products or services; (iv) is based on a breach of Section 2(c) by Merchant; or (v) is based on negligence, willful misconduct, or fraud by Merchant. Merchant’s obligations under this Section 11(c) are contingent upon: (1) Company providing Merchant with prompt written notice of such Claim (but in any event notice in sufficient time for Merchant to respond without prejudice); (2) Merchant having the exclusive right to defend or settle such Claim; and (3) Company providing all reasonably necessary cooperation to Merchant, at Merchant’s expense, in the defense and settlement of such Claim. Company may participate in the defense of any Claim at its own expense.
(a) Publicity. Subject to the provisions of Section 9, each Party shall have the right to publicly announce the existence of the business relationship between the Parties. In addition, during the Term, Company may use Merchant’s name, trademarks, and logos (collectively, “Merchant’s Marks”) on Company’s website and in its marketing materials to identify Merchant as Company’s customer, provided that Company shall use commercially reasonable efforts to adhere to the usage guidelines furnished by Merchant with respect to Merchant’s Marks.
(b) Non-Solicit. Merchant agrees that during the Term and for one (1) year thereafter, it shall not, directly or indirectly, knowingly recruit or solicit any of Company’s employees or contractors; provided that this Section shall not prohibit Merchant from soliciting or hiring any person who responds to a general advertisement or solicitation not specifically directed at employees of Company.
(c) Assignment. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent, except to an acquirer or successor in interest in connection with a merger or acquisition involving such Party or sale of all or substantially all or such Party’s assets. Any attempt to assign or transfer this Agreement without such consent will be void. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties’ and their respective successors and permitted assigns.
(d) Entire Agreement. This Agreement, including its exhibits and any Order Forms, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both oral and written, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.
(e) Export Regulation. Merchant will fully comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Subscription Services or software, or any Merchant Materials, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval.
(f) Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
(g) Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the state of New York without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New York, NY and the Parties irrevocably consent to the personal jurisdiction and venue therein.
(h) Notices. All notices required or permitted under this Agreement will be in writing (email being sufficient), will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii)one (1)business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; (iii) when sent by email, on the date the email was sent with without a bounce back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party; or (iv) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid. All notices (a) to Company will be sent to Swap Address: 86-90 Paul Street, London, EC2A 4NE Attn: Support, e-mail: email@example.com with a copy
(i) Relationship Between the Parties. The relationship between the Parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
(j) No Third-party Beneficiaries. Unless otherwise expressly provided, no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person or entity other than the Parties and their respective successors and assigns.
(k) Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
(l) Non-Exclusive Remedies. Except as set forth in this Agreement, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
(m) Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
(n) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy (including via electronic signature) of this Agreement or any Order Form transmitted by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Agreement or such Order Form for all purposes.