North America Software Subscription Agreement Terms

Last Modified: 1 January 2024

These terms, including any attached exhibits and addendums (these “Terms”), form a binding contract between the customer entity (“Customer”) set forth on the order form referencing these Terms (“Order Form”) and SkuVault, Inc. (dba “SkuVault” or “Linnworks”), a Delaware corporation (“Provider”). These Terms govern Customer’s access to and use of the Software (as set-out in the Order Form), and is subject to the terms and conditions of these Terms, the Order Form, and any other schedules referenced in these Terms (collectively, the “Agreement”).

THIS AGREEMENT TAKES EFFECT (THE “EFFECTIVE DATE”) WHEN AN AUTHORIZED REPRESENTATIVE OF CUSTOMER SIGNS THE ORDER FORM FOR THE SOFTWARE. BY SIGNING THE ORDER FORM, CUSTOMER: (A) ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT; (B) REPRESENTS AND WARRANTS THAT IT HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND THAT THE CUSTOMER REPRESENTATIVE DOING SO HAS THE LEGAL AUTHORITY TO BIND CUSTOMER; AND (C) ACCEPTS THIS AGREEMENT AND AGREES TO BE LEGALLY BOUND BY ITS TERMS.

1. Definitions

1. “Authorized User” means Customer and Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Software under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Software has been purchased hereunder.
2. “Customer Data” means (other than Aggregated Statistics) information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Software.
3. “Documentation” means Provider’s user manuals, handbooks, and guides relating to the use of the Software and that are made available by Provider to Customer either electronically or in hard copy form.
4. “Provider IP” means the Software, the Documentation, and all intellectual property provided to or accessed by Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any general, non-personalized information, data, or other content derived from access to or use of the Software but does not include Customer Data.
5. “Software” means the software provided by Provider under this Agreement as set forth in the Order Form.
6. “Third-Party Products” means any software, products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Software or through which Customer may access and use the Software. By way of example, these include third-party integrations, enabled by the Customer, to the Software.

2. Access and Use

1. Provision of Access. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Software as described in each Order Form during the Subscription Term solely for Customer’s internal business purposes by Authorized Users and in accordance with these Terms.
2. Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants Customer a non-exclusive, non-sublicensable, non-transferable, limited license for Authorized Users to use the Documentation during the Subscription Term solely for Customer’s internal business purposes in connection with use of the Software.
3. Use Restrictions. Customer shall not use the Provider IP for any purposes beyond the scope of the access granted in this Agreement or in excess of the limitations on usage or access set forth in the relevant Order Form or within the Software’s user interface, portal, or dashboard (“Dashboard”). Except as expressly permitted in this Agreement, Customer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Provider IP or any component of the Provider IP, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Provider IP to any third party except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the code or underlying processes of the Provider IP, in whole or in part; (iv) remove any proprietary notices from the Provider IP; (v) use the Provider IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule; (vi) violate any terms of use or other agreements related to Customer’s use of Third-Party Products; (vii) utilize the Software to process or access any information which Customer does not have permission to access and utilize; (viii) utilize the Provider IP for fraudulent, malicious, deceptive, defamatory, or obscene purposes or to impersonate any person or entity; (ix) fail to utilize reasonable and lawfully required measures to prevent granting access to the Software to any persons who are under the age of 18 or use the Software in a way that is harmful to minors; (x) use the Software to transmit or facilitate the sending of any electronic message (including any email) that: (A) is sent as part of a larger collection of messages that have substantively similar content to a person who has not granted verifiable permission for the message to be sent, (B) violates the U.S. Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003, including one-to-one commercial messages, (C) violates the EU General Data Protection Regulation 2016/679 (if applicable), or (D) violates any other applicable privacy laws or communications laws; (xi) use the Provider IP for any purpose in violation of the Agreement, including any restrictions on usage limits in the Order Form; or (xii) process any information defined as sensitive personal information or protected health information, in each case as defined under applicable law, or similar types of information.
4. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Software and collect and compile data and information related to Customer’s use of the Software to be used by Provider in an aggregated, anonymized manner, including to compile statistical and performance information related to the provision and operation of the Software (“Aggregated Statistics”). As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Software. Customer agrees that Provider may use Aggregated Statistics to the extent and in the manner permitted under applicable law for any purposes, including making such information publicly available, provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information. Provider shall not de-anonymize Aggregated Statistics.
5. Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Customer obtains no rights of any kind to utilize the Provider IP following the Subscription Term (defined below). Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the Provider IP.
6. Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Software if: (i) necessary to prevent a reasonably determined threat to, or attack on, any of the Provider IP, Customer Data, or any other data processed or contained in the Software or the integrity of the Software; (ii) Customer or any Authorized User violates any restrictions of Section ‎2(c); (iii) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (iv) Provider’s provision of the Software to Customer or any other Authorized User is prohibited by applicable law; (v) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Software through no fault of Provider; or (vi) in accordance with ‎5 (any such suspension described in this Section ‎2(f), a “Service Suspension”). Provider shall provide reasonable notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Software following any Service Suspension as soon as reasonably practical. Provider shall resume providing access to the Software as soon as reasonably practical after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer or any other Authorized User may incur in relation to a Service Suspension.

3. Customer Responsibilities

1. Acceptable Use Policy. The Software may not be used for unlawful, fraudulent, offensive, or obscene activity, as may be further described and set forth in any acceptable use policy (“AUP”) provided within the Software, as may be amended from time to time, which is incorporated herein by reference. Customer will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted on the Dashboard or otherwise in the Software from time to time, including the AUP.
2. Account Use. Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Software and shall cause Authorized Users to comply with such provisions.
3. Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Software to Customer, subject to Provider’s obligations under this Agreement with respect to such Customer Data. Customer shall ensure, and hereby represents and warrants, that the Customer Data and any Authorized User’s and Provider’s use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law.
4. Passwords and Access Credentials. Customer is responsible for keeping its passwords and access credentials associated with the Software confidential. Customer shall not sell or transfer them to any other person or entity. Customer shall promptly notify Provider of any unauthorized access to Customer-associated passwords or access credentials.
5. Third-Party Products. The Software may permit access to Third-Party Products and may be otherwise utilized in connection with Third-Party Products that Customer authorizes or elects. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to Customer for acceptance within the Software by website link or otherwise or which Customer may have otherwise entered into with such third parties. If Customer does not agree to the applicable terms for any such Third-Party Products, then Customer must not install, access, or use such Third-Party Products. Customer, and not Provider, shall be liable for any breach of such terms of Third-Party Products. If any Third-Party Products do not operate with the Software, then the Software may not operate as intended. Provider cannot control the Third-Party Products and Customer’s use of such products is at its own risk. Customer must evaluate its use of all Third-Party Products.

4. Support and Professional Services

1. Support. Support contact information is provided via the support center within the Software.
2. Onboarding Services. Onboarding services may be purchased from the Provider. These additional services will be set-out in the Order Form and are subject to the additional terms set-out in Schedule 1 (incorporated herein only if Customer purchases such Onboarding Services).
3. Customization Services. Customization Services refers to services provided by Provider to a Customer in order to custom develop additional features to fit the Customer’s requirements. This type of work is outside the scope of work which is “off the shelf” and routinely provided by Provider to Customers. The procurement of Customization Services will be dealt with under separate terms if Customization Services are requested by Customer.

5. Fees and Payment

Customer shall pay Provider the fees on the dates and pursuant to the timing as described in the Order Form for the relevant Software and Onboarding Services (if applicable) (“Fees”) without offset, setoff, or deduction, unless otherwise set forth in the Order Form. Fees are due upon receipt of the relevant invoice. Customer shall make all payments hereunder in the currency set forth on the Order Form on or before the due date. Fees will increase by 5% following each Subscription Term, unless otherwise specified in the Order Form. Provider will provide Customer notice of such increases 30 days prior to the end of the then current Subscription Term. If Customer fails to make any payment when due, unless such failure is resulting from Provider’s breach of these Terms, without limiting Provider’s other rights and remedies: (a) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (b) Customer shall reimburse Provider for all reasonable out of pocket and direct costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for ten (10) days or more, Provider may suspend Customer’s and all other Authorized Users’ access to any portion or all of the Software until such amounts are paid in full or Provider may terminate this Agreement, effective upon notice to Customer, which termination will not relieve Customer of its existing or ongoing payment obligations through the then-current Subscription Term. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments, including all sales, use, value-add, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, all of which shall be invoiced and payable in addition to the Fees, other than any taxes imposed on Provider’s income, real property, or employees. Provider may, where permissible under applicable law, charge credit card processing fees to Customer in addition to the Fees if Customer pays with a credit card. All paid amounts are non-refundable and non-cancellable. 

6. Confidential Information

From time to time during the Subscription Term, Provider and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as “confidential” or “proprietary” at the time of disclosure, that in all cases a reasonable person would have believed to be confidential given the nature of the information or the circumstances of disclosure (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party through a source other than the disclosing party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, agents, advisors, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order provides reasonable notice to the other party, if permissible under applicable law, and makes a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will continue, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), until such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law or, with respect to any disclosing party Confidential Information still in the receiving party’s possession or control, until such time as the information is deleted or otherwise no longer in receiving party’s possession or control without a breach of such obligations.

7. Privacy Policy; Data Protection

Provider complies with its privacy policy, referenced on Provider’s website, the Order Form, or the Software, as applicable (“Privacy Policy”). The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Software, Customer acknowledges that it has reviewed and accepted the Privacy Policy as may be modified from time to time and in effect at the time of such access, use, or provision of information: for clarity and where relevant, the Provider acts as the data processor and the Customer is the data controller, as such terms are defined in the relevant laws.

8. Intellectual Property Ownership; Feedback

As between the parties, (a) Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and (b) Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer Data. If Customer or any of Customer’s employees, contractors, or agents sends or transmits any communications or materials to Provider suggesting or recommending changes related to the Software, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback without restriction irrespective of any other obligation or limitation between the parties governing such Feedback. Feedback will not be considered Customer’s Confidential Information.

9. Warranty Disclaimer

THE SOFTWARE IS PROVIDED “AS IS” AND PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF CUSTOMER’S OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

10. Indemnification

1. Provider Indemnification.
   1.  Provider shall indemnify, defend, and hold Customer harmless from and against any and all actual losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (“Losses”), incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Software, or Customer’s use of the Software in accordance with this Agreement, infringes or misappropriates such third party’s patents, copyrights, or trade secrets, provided that Customer promptly notifies Provider in writing of the Third-Party Claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Third-Party Claim.
   2. If such a Third-Party Claim is made or Provider reasonably anticipates such a Third-Party Claim will be made, Customer agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Software, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer, and refund Customer for any pre-paid and unused fees pro-rated to the post-termination period. This Section ‎10(a) sets forth Customer’s sole remedies and Provider’s sole liability and obligation for any liabilities subject to indemnification under this Section ‎10.
   3. This Section 10(a) will not apply to the extent that any such Third-Party Claim arises from: (A) Customer Data or Third-Party Products; (B) use in violation of this Agreement; (C) access to or use of the Software in combination with any hardware, system, software, network, or other materials or service not provided by Provider or specified for use with the Software in the Documentation; (D) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Provider; or (E) use of the Software in combination with software or hardware not provided by Provider, if a Third-Party Claim would not have otherwise been made.
2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim (i) arising out of any use of the Customer Data in accordance with this Agreement or that the Customer Data infringes or misappropriates such third party’s intellectual property or privacy rights; or (ii) based on Customer’s or any Authorized User’s use of the Software in violation of this Agreement; provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

11. Limitations of Liability

EXCEPT FOR WILLFUL MISCONDUCT, GROSS NEGLIGENCE, OR LIABILITIES THAT CANNOT BE LIMITED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER THE OTHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT FOR WILLFUL MISCONDUCT, GROSS NEGLIGENCE, OR LIABILITIES THAT CANNOT BE LIMITED BY LAW, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED EITHER (i) THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR (ii) $5,000.00, WHICHEVER IS GREATER. EACH PARTY AGREES THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION FORM THE BASIS OF THE BARGAIN AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT IF IT WERE NOT FOR SUCH RESTRICTIONS.

12. Term and Termination

1. Subscription Term. The subscription for the Software shall be effective beginning on the Effective Date of the Order Form and shall continue, unless terminated early pursuant to this Agreement, during the “Subscription Term” set forth on such Order Form. Upon the expiration of the initial Subscription Term, the subscription for the Software shall automatically renew for additional successive terms of equal duration as the initial Subscription Term, unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Subscription Term of the Order Form (such renewals are included in the term “Subscription Term”).
2. Termination. In addition to any other express termination right set forth in this Agreement:
   1. SkuVault Core Only: A SkuVault Core Customer may elect to terminate the subscription for the Software by providing notice of such termination during the onboarding period, to take effect at the end of the relevant onboarding period.
   2. Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.
   3. Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
3. Effect of Termination. Upon termination of each Order Form, Customer shall immediately discontinue use of the Provider IP licensed pursuant to such Order Form and the Agreement. Upon termination of this Agreement in whole, all licenses and subscriptions to the Software shall terminate. No expiration or termination of this Agreement (or any Order Form) will affect Customer’s obligation to pay all Fees that may have become due or liabilities which arose before such expiration or termination, or entitle Customer to any refund, unless otherwise set forth for the specific right of termination or in the specific Order Form.
4. Survival. This Section 12(d), Sections ‎5, ‎6, ‎10, ‎11, ‎13, ‎14, and ‎15, and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.

13. Export Regulation

The Software utilizes software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Software or the software or technology included in the Software, or make the Software or the software or technology included in the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or the software or technology included in the Software available outside the US.

14. Governing Law and Jurisdiction

This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement or the rights granted hereunder must be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware in each case located in the city of Wilmington, Delaware, and each party irrevocably submits to the exclusive jurisdiction and venue of such courts in any such suit, action, or proceeding.

15. Miscellaneous

This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to Provider must be sent to Provider’s corporate headquarters address set forth on the Order Form and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by Provider. Notwithstanding the foregoing, Customer hereby consents to receiving electronic communications from Provider. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Software. Customer agrees that any notices, agreements, disclosures, or other communications that Provider sends to Customer electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by Provider with respect to a breach of this Agreement by Customer or others does not constitute a waiver and will not limit Provider’s rights with respect to such breach or any subsequent breaches. This Agreement is personal to Customer and may not be assigned or transferred for any reason whatsoever without Provider’s prior written consent and any action or conduct in violation of the foregoing will be void and without effect, except that either party may assign this Agreement in whole to (a) a successor entity in connection with an acquisition, merger, consolidation, reorganization, or sale of substantially all the assets of such assigning party, or (b) a parent that wholly-owns the assigning party or a wholly-owned subsidiary of such party. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control or ability to prevent, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (i) acts of God; (ii) flood, fire, earthquake, pandemic, natural disasters, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions (not including a violation of law by a party); (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; and (vii) other similar events beyond the reasonable control of the Impacted Party. Provider may modify these Terms from time to time in its sole discretion. All such modifications will be effective when posted on Provider’s website, and Customer’s continued use of the Software (or benefit thereof) constitutes Customer’s acceptance of such modified terms. Customer is solely responsible for reviewing the Terms posted on Provider’s website to determine if it should continue use of (or receive continued benefit of) the Software following any modifications. The parties are independent contractors and, notwithstanding any terms or references to the contrary, are not partners, joint-venturers, or co-creators in any way.

[End of general terms]

Schedule 1 – purchased Onboarding Services only

General:

Provider may use subcontractors to carry out some or all of the Onboarding Services on its behalf.
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Onboarding Services can be provided as an add-on service by Provider to train Customer on how to optimize use of the Provider platform. Provider will seek to agree objectives with the Customer regarding what the Customer wishes to achieve on the platform. These objectives will be used to prepare an onboarding plan of action (“Project Plan”) to document focus areas for the training with the aim of achieving the Customer’s overall objectives. The Project Plan may only address limited objectives at a time, depending on Customer budget, resources and time constraints.

The Provider onboarding team (“Onboarding Team”) provides training and advice on the best use of Provider functionality. The setup and follow-up tasks are to be completed by the Customer unless agreed otherwise.

The Onboarding Team will provide advice and assistance regarding the Data/CSV file requirements that will be imported into Provider’s platform.

It is the Customer’s responsibility to: 

• compose and provide files in accordance with Provider Import Tool requirements;
• ensure imported data integrity and completeness; and
• collect credentials required for channel/courier/3PL integrations during the onboarding process. Integrations that cannot be created due to lack of data required for their creation are considered outside the scope of Onboarding Services and are to be completed by the Customer independently once they become available.

Onboarding duration:

The Customer must allocate sufficient time and resources required to complete onboarding within the agreed upon timeline, including, but not limited to, attendance of the training sessions, completion of the follow-up tasks (often to be carried out offline, outside of the onboarding training sessions), preparation of the necessary and requested files.

Onboarding project duration is dependent on the scope of work and requirements as agreed to by Onboarding Team and the Customer. Timelines will specifically be detailed in the Onboarding Project Plan. Any deviation to agreed-upon scope will require a Change Order Form (or similar document), which may include additional fees and extended timelines.

In the event of a change in priority or direction of the Customer’s business, the Customer may pause their Project Plan. However, all payments must be honored and remain up to date and the Customer accepts that resuming the Project Plan will occur within availability of the Onboarding Team, without exception.

The Onboarding project would be considered ongoing unless the Customer explicitly requests it to be paused. If the Customer ceases to communicate with the Onboarding Team for longer than 3 weeks, then the Onboarding Services will be paused automatically. Should any other reasons impact continuation of Onboarding Services, the Onboarding Team will directly communicate and discuss these with the Customer.

Onboarding would be considered complete once the Customer actively starts processing orders or consolidating inventory through the platform, unless the Project Plan states differently and is agreed and confirmed with the Onboarding Team at the start of the project.

Remaining sessions to be delivered by the Onboarding Team after onboarding completion must be utilized during the post-Go Live onboarding support period. Please refer to the onboarding package purchased for more details on post-Go Live support. Requested outstanding sessions after the post-Go Live support period would be charged as per the agreed rate card.

Additional sessions to cover extra modules not included within the Project Plan and/or agreed with the Onboarding Team during the definition of the Project Plan discussion will be charged as per the agreed rate card at an hourly rate and will require a Change Order Form or similar document.

All reasonable efforts will be made to deliver the Project Plan within the agreed cost and timings. Should these be exceeded due to a change in scope, additional onboarding charges may be applied for the agreed additional Onboarding Services or time dedicated by the Onboarding Team to support the Customer. The Onboarding Team will notify the Customer in advance of exceeding the planned scope and the Customer will be billed based on the agreed rate card for either additional sessions or additional support for enablement services.

Provider and the Onboarding Team are not responsible for missing onboarding deadlines if the Customer has been unavailable/missing sessions or a delay by any third party on the Customer’s side: if this is the case it will render any clause relating to deadlines redundant.

Provider functionality:

Onboarding Training Packages include Provider core product functionality which does not include any Customer customization, such as but not limited to: SQL, Macros, API Integrations, and any other requests outside of the core product functionality, unless specifically stated within the order form. 

3rd Party Integration:

3rd party integration may be subject to additional costs. 3rd party integration pricing is to be discussed with the developer of the application. The 3rd party developer is to facilitate any support related to the application developed.
3rd party integration (such as, but not limited to app store, channel, or courier integration) is the explicit responsibility of the Customer. Provider Onboarding Team may assist with documentation if it has been made available for Provider by a 3rd party but cannot provide advice on the integration itself.

3rd party integration (such as, but not limited to app store, channel, or courier integration) is the explicit responsibility of the Customer. Provider Onboarding Team may assist with documentation if it has been made available for Provider by a 3rd party but cannot provide advice on the integration itself.

User acceptance testing (“UAT”):

The Onboarding Team will collaborate fully with the Customer to ensure that the platform has been both correctly and fully configured prior to “Going live” with Provider, but a final sign off on the outcome of UAT will be required from the Customer.

Partner

The Onboarding Services terms above apply to any Customer that is partaking in onboarding through one of our certified partners.

Any further services the Customer wishes to pursue with Provider’s onboarding partners will be acceptable if Provider has been notified in advance by the relevant partner.

Provider must be notified immediately if the Customer is unsatisfied with the onboarding partner so that any adjustments can be made to meet agreed deadlines. Any delay in notifying Provider of those concerns are the Customer’s responsibility and any impact on deadlines for deliverables would have to be reviewed and adjusted accordingly.

[End of Schedule 1]