Software as a Service Agreement

Last Updated 22 April 2020.

These terms, including any attached exhibits (collectively, “Terms”) are entered into as of the effective date listed on the Order Form (“Effective Date”) between Linnworks Software, Inc., a Delaware corporation, having its principal place of business at 600 Congress Ave, 14th Fl., Austin, TX 78701 (“Linnworks” or “Supplier”) and the customer identified on the Order Form (“Customer”), collectively the “Parties.”

1. Definitions and Interpretation

"Agreement"
means this software as a service agreement (including the Terms, Order Forms, and Schedules) and any amendments or modifications to it from time to time made in accordance with this Agreement;

"Authorised Users"
means those employees, officers, agents and independent sub-contractors of the Customer who are authorised by the Customer to use the Services, the Software and the Documentation for the benefit of the Customer;

"Business Day(s)"
means any day, other than a Saturday, Sunday or a bank or public holiday in the United States;

"Channel(s)"
means any sales channels used by Customer and authorized to be used with the Software pursuant to this Agreement, the Order Form or any other related documents;

"Charges"
means the amounts payable by the Customer to the Supplier under or in relation to this Agreement (as set out in the Order Form subject to any changes in accordance with paragraphs 2 and/or 6);

"Confidential Information"
means all information (in any medium or format, including written, oral, visual or electronic) which is marked or described as “confidential” and which relates to a party (the “Disclosing Party”) or to its employees, officers, customers or suppliers and which is directly or indirectly disclosed by the Disclosing Party to the other (the “Recipient Party”) in the course of their dealings relating to this Agreement, whether disclosed before or after the Commencement Date other than:

(a) information which is in the public domain other than as a result of breach of this Agreement;

(b) information which the Recipient Party received, free of any obligation of confidence, from a third party which itself was not under any obligation of confidence in relation to that information; and

(c) Information which was developed or created independently by or on behalf of the Recipient Party.

"Customer Data" or "Customer Content"
all data, works and materials uploaded or inputted by or on behalf of the Customer or by any person or application or automated system using the Customer's account for the purposes of using the Services or Software or facilitating the Customer's use of the Services or Software;

"Customizations"
has the meaning set out in Paragraph 3 ("Customizations");

"Data Protection Legislation"
means all applicable federal and Delaware laws and regulations that relate to the protection and processing of personal data and privacy;

"Documentation"
means the documentation produced by the Supplier and made available to the Customer specifying how the Services and the Software should be used;

"Force Majeure Event"
means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

"Intellectual Property Rights"
means all intellectual property rights which subsist now or in the future, in any part of the world, whether registered or unregistered, including any application or right of application for such rights, any renewals or extension, and any rights to claim priority from (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights, rights in designs and all similar or equivalent rights and forms of protection);

"Malware"
means any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;

"Onboarding Services"
means any implementation or integration services, to the extent set out in the Order Form;

"Order Form"
means the order form in respect of the Services which is either:

(a) signed on behalf of the Customer and Supplier; or

(b) completed online on behalf of the Customer.

"Service(s)"
means all the services provided or to be provided by the Supplier to the Customer under this Agreement as specified in Order Form, comprising:

(a) access to and use of Software;

(b) the Support Services; and

(c) Onboarding Services, if so listed in the Order Form;

"Service Start Date"
means the earlier of:

(a) the 'Service Start Date' confirmed in the Order Form; and

(b) the date on which the Customer's subscription with the Supplier first became active;

"Software" or "Platform"
means the Supplier's online order and inventory management system;

"Subscription Term"
means the term of the subscription as set out in the Order Form as measured from the Service Start Date;

"Support Services"
means the following support services to be provided by the Supplier by telephone, chat and email, within normal Business Hours (with Supplier using reasonable endeavours to ensure that a member of its support staff will monitor the support ticketing system and emergency email outside of normal Business Hours in the case of an emergency):

(a) assisting the Customer with the proper use of the Services and Software by use of pre-booked online training sessions; and

(b) determining the causes of faults and fixing faults that are not caused by the Customer or a cause outside the Supplier's control; and

"Term"
means the term of this Agreement.

2. Term

This Agreement will come into force on the Effective Date or Service Start Date, whichever is earlier, and will continue in force for the Subscription Term and thereafter shall be automatically renewed for successive Subscription Terms as measured from the date of expiry of the current Subscription Term, unless:

• either party notifies the other party of termination, in writing, at least 30 days before the end of the Subscription Term or any Renewal Term, in which case this Agreement shall terminate upon the expiry of the applicable Subscription Term or Renewal Term; or

• this Agreement is otherwise terminated earlier in accordance with the terms of this Agreement

The Supplier shall not less than 30 days before the expiry of the current Subscription Term notify the Customer of any changes to the Charges which the Supplier has calculated will be due for the next Subscription Term. Unless this Agreement is terminated by the Customer in accordance with the terms of this Agreement, the Customer shall be deemed to accept any such notified changes to the Charges and the Supplier shall continue to provide the Services for the next Subscription Term on the revised terms.

3. The Services

Subscription Rights and Access

Subject to Customer’s payment of the fees confirmed in the Order Form (as amended in accordance with paragraph 2) and compliance with the terms of this Agreement, Supplier grants Customer the nonexclusive limited-time subscription and right to use the Services in accordance with this Agreement. Further, Supplier agrees that Customer may access and use, and permit each Authorized User to access and use, the Services for its intended purpose, in accordance with the specifications confirmed in any Documentation and subject to the terms of this Agreement and the limits on User Count, Order Volume, SKU Count, Feature Set, Channels, and/or other use restrictions specified on each Order Form. Subject to Customer’s payment of the fees confirmed in the Order Form and compliance with the terms of this Agreement, Supplier shall provide to Customer the necessary passwords, security protocols and policies, and network links or connections to allow Customer and its Authorised Users to access the Services. Supplier shall provide the Customer and Authorized Users with (a) support for the Services and (b) access to enhancements and maintenance modifications as they become available. Customer and its Authorized Users are solely responsible for ensuring that they have sufficient and compatible hardware, software, telecommunications equipment, and Internet service necessary for the use of the Services. All other rights not expressly granted in this Agreement are reserved by the Supplier.

For the avoidance of doubt, the Customer has no right to access the object code or source code of the Software at any time.

Customizations

From time to time the Supplier and the Customer may agree that the Supplier will customize the Services in accordance with a specification agreed in writing between the parties ("Customization"). From the date when a Customization is first made available to the Customer, the Customization shall form part of the Services under this Agreement. The Customer acknowledges that the Supplier may make any Customization available to its other customers at any time after making available that Customization to the Customer. All Intellectual Property Rights in the Customizations shall, as between the parties, be the exclusive property of the Supplier. The Customer will be responsible for procuring any third-party cooperation reasonably required by the Supplier to enable the Supplier to fulfil its obligations in providing Customizations.

Beta Services

From time to time, Supplier may invite Customer to try certain beta services, including pilot, limited release, developer preview, non-production, or evaluation services (“Beta Services”) at no charge. Customer may accept or decline any such trial. Beta Services will be clearly designated as such by Supplier. Beta Services are provided "as is" without a warranty or guarantee and are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. Supplier may discontinue Beta Services at any time and may never make them generally available. Supplier will have no liability for, and Customer hereby releases Supplier from, any liability or damage arising out of or in connection with any Beta Services.

Software Updates

Supplier may change, modify, upgrade, or discontinue any aspect or feature of Software in whole or in part. Such changes, upgrades, modifications, additions, or deletions will be effective immediately upon notice thereof, which may be made by posting such changes to the Supplier’s website or directly via email to Customer. In the event Supplier modifies or discontinues any content or feature of Software which results in reduction of functionality or degradation of the Services, Supplier shall provide comparable functionality. Supplier shall, from time to time, develop new features, which may be offered to Customers for additional fees.

Limitations

Customer shall not, and shall not authorize or permit any Authorized User to (a) rent, loan, or re-license rights to access and/or use the Services (except as specifically provided herein); (b) copy, modify, disassemble, decompile, or reverse engineer software included as part of the Services and/or the Documentation; (c) share identification or password codes with persons other than Authorized Users, or permit Customer’s account to be accessed by individuals who are not Authorized Users; (d) access, use, or permit a third party to access or use the Services for purposes of competitive analysis, including the development, provision, or use of a competing software or service or for any other purpose that may be to Supplier’s detriment or commercial disadvantage; (e) intentionally or unintentionally install malware, spyware, or similar application intended to monitor, damage, or do harm to Supplier’s Platform;  (f) exceed the number of monthly or other periodic order numbers pursuant to the Order Form or use any Features Sets not included in the Order Form without additional fees or Service tier; or (g) use the Services in any way not expressly provided for in this Agreement. Customer shall be responsible under this Agreement for all activities that occur under Customer’s account and for all actions of Customer or its Authorized Users and both Customer and Authorized Users shall use the Services in accordance with the terms of this Agreement and any Terms of Service on the Supplier’s website. In the event of any dispute between the terms of this Agreement and any Terms of Service on Supplier’s website, this Agreement shall control. Customer shall immediately notify Supplier of any unauthorized use of Customer’s passwords or account, or any other breach of security that is known or suspected by Customer.

Non-Linnworks Applications

The Customer acknowledges that Supplier may enable or assist it to access and/or purchase content or technical applications offered by third parties (“Non-Linnworks Application,”) either directly from the Linnworks app store or via third party websites. Any use by Customer and any exchange of data between Customer and the provider of Non-Linnworks Applications is solely between Customer and the applicable provider. Supplier does not warrant or support Non-Linnworks Applications or other non-Supplier products or services. The Supplier makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the access, content or use of, or correspondence with, any such third party, or any transactions completed, and any contract entered into by the Customer, with any such third party.

If Customer installs or enables a Non-Linnworks Application for use with the Services, Customer hereby grants Supplier permission to allow the provider of that Non-Linnworks Application to access Customer’s data and content as required for the interoperation of that Non-Linnworks Application with the Services. Supplier is not responsible for any disclosure, modification, or deletion of any of Customer’s data or content resulting from access by a Non-Linnworks Application. The Services may contain features designed to interoperate with Non- Linnworks Applications. To use such features, Customer may be required to obtain access to Non-Linnworks Applications from their providers, and may be required to grant Supplier access to Customer’s account(s) on  the Non-Linnworks Applications. If the provider of a Non-Linnworks Application ceases to make the Non-Linnworks Application available for interoperation with the corresponding Service features, Supplier may cease providing those Service features without entitling

4. Customer Data and Materials

Supplier will process, store and use Customer Content as generally necessary in order to perform the Services, to create new Supplier products/services, or to share, in aggregate, with Supplier’s partners, affiliates or customers. Customer represents and warrants that it has all necessary rights in the Customer Content to grant Supplier the right to use, and Customer hereby grants Supplier a non-exclusive, worldwide, royalty-free and fully paid license to use the Customer Content.

a. Customer Content warranty

Customer represents and warrants that it has all necessary permissions, consents and authority to provide the Customer Content and that any Customer Content hosted, processed, stored or used by Supplier as part of the Services will not (a) infringe or violate the Intellectual Property Rights or other legal rights of any third party; (b) be deceptive, defamatory, obscene, or unlawful; or (c) contain any viruses, worms, Malware, spyware, or other malicious computer programming codes intended to damage Platform or data.

Customer acknowledges that any use of the Services by Customer or Authorized Users contrary to or in violation of the representations and warranties of Customer in this paragraph constitutes unauthorised and improper use of the Services. Any such authorized or improper use shall entitle the Supplier discontinue the Customer's access to the Services, without prejudice to its other rights or remedies. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. The Parties acknowledge that Supplier does not and cannot review all Customer Content and will not be responsible for such content, but that Supplier shall have the right to delete, move, or edit any Customer Content that Supplier determines violates or might violate this Agreement, or any applicable law or regulation, or is otherwise unacceptable.

b. Anonymous data

The Supplier shall be entitled to use aggregated Personal Data created from data produced under this Agreement for the purposes of reporting on the performance, developing and providing new and different products/services to Supplier’s customers, levels of usage and revenue of the Services (provided that such use does not identify the Customer or any living person identified in the Personal Data). This paragraph shall survive the expiry or termination of the Agreement.

Customer Data

The Customer grants to the Supplier a non-exclusive license to store, copy and otherwise use the “Customer Data” and Materials for the purposes of providing the Services, fulfilling its other obligations under this Agreement, and exercising its rights under this Agreement. Customer represents and warrants that Customer shall only provide to Supplier the minimum amount of personally identifiable information for each Authorized User to enable the Authorized User to enjoy the benefit of this Agreement. Customer represents and warrants that Customer is legally entitled to transfer relevant Customer Data to Supplier so that Supplier may lawfully use, process, and transfer the Customer Data in accordance with this Agreement on Customer’s behalf or for other purposes for Supplier or Customer benefit as contemplated in this Agreement. Customer shall ensure that any third parties or owners of relevant Customer Data, including data subjects, have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable “Data Protection Legislation.” Customer acknowledges that Supplier is reliant on Customer for direction as to the extent to which Supplier is entitled to use and process the Customer Data. Supplier will not be liable for any claim arising from any action or omission by Supplier, to the extent that such action or omission resulted from Customer's instructions. This paragraph shall survive the expiry or termination of the Agreement.

Data Protection

Each party shall ensure that it complies with the requirements of all applicable legislation and regulatory requirements in force from time to time relating to the use of Personal Data, including the Data Protection Legislation.

Data Corruption/Loss

The Supplier shall be entitled to use aggregated Personal Data created from data produced under this Agreement for the purposes of reporting on the performance, developing and providing new and different products/services to Supplier’s customers, levels of usage and revenue of the Services (provided that such use does not identify the Customer or any living person identified in the Personal Data). This paragraph shall survive the expiry or termination of the Agreement.

5. Customer Obligations & Acknowledgement

The Customer shall:

• provide the Supplier with all reasonably necessary co-operation in relation to this Agreement;

• ensure that its Authorized Users use the Services, Software and Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorized User's breach of this Agreement.

• ensure that it and any Authorized Users abide by all applicable local, state, national, and foreign laws and regulations in connection with their use of the Services.

• ensure that it and any Authorized Users abide, do not abuse, attempt to circumvent, or violate any rules, regulations, or terms of service of the Channels, Marketplaces, Storefronts, Couriers, Non-Linnworks Applications, and any other systems or software connected to the Platform

• agrees to enter into agreements with its Authorized Users that contain terms that impose no less restrictions in all material respects than those imposed on Customer herein, including, but not limited to, the provisions regarding the use of the Services and protection of Supplier’s Intellectual Property Rights, and that include additional terms as reasonably requested by Supplier.

On or before the earlier of the Effective Date or the Service Start Date, Customer acknowledges and agrees that an authorized representative of Customer has evaluated the features and functionality of the Services in a means satisfactory to Customer and accepts that the Services have been demonstrably shown to have all of the features and functionality that have been represented to Customer. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features, nor dependent on any oral or written public comments made by Supplier regarding future functionality or features.

6. Payment

Payment Terms

Customer shall pay Supplier all Charges confirmed in the Order Form (or as otherwise amended in accordance with these Terms) upon receipt of invoice (unless otherwise stated on the Order Form). The Supplier and the Customer may agree more favorable payment terms, but the Customer acknowledges and agrees that the Supplier shall be entitled to charge the Customer a premium in such circumstances.

Except for as otherwise set out in this Agreement, all payments to Supplier are non-refundable and non-cancellable. Specifically, Customer’s loss of business, loss of Services due to nonpayment, or Customer’s failure to use the Services will not be cause for any refund to Customer from Supplier. Customer shall reimburse Supplier for Supplier’s collection costs incurred in attempting to collect any overdue payments, including reasonable legal fees.

Federal, State & Local Tax

The Subscription Fees stated on the Order Form are exclusive of any federal, state, or other governmental taxes, duties, fees, excises, or tariffs (“Taxes”) now or hereafter imposed on the Services. Customer shall be responsible for, and if necessary shall reimburse, Supplier for all such taxes on any amounts payable by Customer hereunder, except for taxes imposed on Supplier’s net income. If Supplier has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Supplier will add such Taxes to the amount invoiced to Customer.

Compliance and Auditing

Pricing is determined by a number of factors, including Order Volume, SKU Count, Customizations, Support Service and other similar factors. Supplier may, from time to time, audit Customer’s account (as specified on the Order Form) without any notice to Customer to ensure compliance with agreed-upon terms and pricing. Supplier will give Customer at least ten (10) days advance notice of any such audit that Supplier expects to interfere with Customer’s normal operations. Such audit will be at Supplier’s expense; however, if any such audit should disclose any underpayment by Customer, Customer shall immediately pay Supplier such underpaid amount, together with interest thereon at the rate for the usage discovered by Supplier, and Customer shall also pay Supplier for Supplier’s expenses associated with such audit.

Pricing

Charges under this Agreement are based on information shared by Customer to Supplier. The Supplier may be required to adjust the Charges as necessary in the event of any change in product, project scope, increase in User Count, Order Volume, SKU Count, or misrepresentation of facts by Customer. At its discretion, the Supplier reserves the right to adjust the basis and the rate of Charges, including by removing any discounts provided.

In the event of a change to the Charges based on misrepresentation of facts by Customer, Supplier reserves the right to suspend Customer access to the Services until a remedy can be found between parties. The Supplier and Customer shall each have the right to terminate this Agreement, unless otherwise agreed, within ten (10) Business Days after notification to Customer of a change to the Charges. In the event the termination of this Agreement as a result of a change in Charges, Supplier may be required to bill for or retain reasonable and proportional compensation for any work performed or expenses incurred prior to the termination of this Agreement. The Customer shall be entitled to a refund of any Charges already paid by the Customer for the Subscription Term remaining after the date of termination.

Late Payment

The Supplier may suspend or terminate access to the Software and the provision of the Services if any amounts due to be paid by the Customer to the Supplier under this Agreement are overdue.

Overdue payments will be subject to a late fee, for each month or fraction thereof, of up to five percent (5%),  or the highest interest rate permitted by applicable law, whichever is lower, in addition to other remedies available to the Supplier. Customer shall reimburse Supplier for Supplier’s collection costs incurred in attempting to collect any late payments, including reasonable attorneys’ fees.

Future Functionality

The Customer acknowledges that the continued payment for Services and Software does not mean that the Supplier undertakes or promises to provide any future functionality or new features.

7. Indemnities

During the Term, Supplier shall indemnify and hold harmless Customer against a final award of damages resulting from a claim that the Services infringe any Intellectual Property Rights. In addition, if the use of the Services infringes or is enjoined, or Supplier believes it is likely to infringe or be enjoined, Supplier may, at its sole option: (a) procure for Customer the right to continue use of the Services as furnished; (b) modify the Services to make them non-infringing, provided that they still substantially conform to the applicable Documentation; or (c) if Supplier, after using all commercially reasonable efforts, is unable to accomplish the foregoing remedies, terminate this Agreement and refund to Customer any prepaid but unused Charges calculated on a straight-line prorated basis for the remainder of the then-current Term. The intellectual property indemnity provided herein does not apply to the extent the alleged infringement arises from any use of the Services not in accordance with this Agreement or as specified in the Documentation or any unauthorized modification of the Services. This paragraph states Supplier’s sole and exclusive liability and Customer’s sole remedies for any threatened or actual infringement of proprietary rights.

During the Term, Customer shall defend, indemnify, and hold harmless Supplier and its officers, directors, employees, agents, successors, and assigns from and against any claims, damages, liabilities, judgments, settlements, losses, costs, or expenses of any kind, including reasonable legal fees, costs and expert witness fees, suffered or incurred by the Supplier and arising out of or in connection with: any breach by the Customer of Paragraph 4a; (b) Customer’s misuse of the Intellectual Property Rights of any third party; and (c) any Customer Content which violates the terms of this Agreement.

In relation to the indemnities given within this Agreement, the applicable indemnified party shall:
• provide notice of any relevant claim to the indemnifying party in a timely manner;

• provide reasonable co-operation to the indemnifying party in the defense and settlement of such claim at the indemnifying party's expense;

• give the indemnifying party sole authority to defend or settle the claim; and use all reasonable endeavours to mitigate its losses.

8. Warranties and Liability

DISCLAIMER

THE SERVICES ARE PROVIDED TO THE CUSTOMER ON AN “AS IS” BASIS. SUPPLIER DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

EXCEPT AS EXPRESSLY AND SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM THE USE OF THE SERVICES, THE SOFTWARE AND THE DOCUMENTATION BY THE CUSTOMER, AND FOR CONCLUSIONS DRAWN FROM SUCH USE. THE SUPPLIER SHALL HAVE NO LIABILITY FOR ANY DAMAGE CAUSED BY ERRORS OR OMISSIONS IN ANY INFORMATION, INSTRUCTIONS OR SCRIPTS PROVIDED TO THE SUPPLIER BY THE CUSTOMER IN CONNECTION WITH THE SERVICES OR THE SOFTWARE, OR ANY ACTIONS TAKEN BY THE SUPPLIER AT THE CUSTOMER'S DIRECTION;

EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, SUPPLIER DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED. SUPPLIER EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

Limited Warranty

Each Party warrants that it has all necessary authority to enter into and perform its obligations under this Agreement. Supplier represents and warrants that (a) the Services will perform in accordance with this Agreement under normal circumstances, and (b) the Services provided hereunder will be performed in a professional manner in accordance with prevailing industry standards. The Services may contain links to sites on the Internet that are owned and operated by third parties. Customer acknowledges and agrees that Supplier is not responsible for the availability of, or the content located on or through, any such external site.

LIABILITY

SUPPLIER WILL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF BUSINESS OR PROFITS, BUSINESS INTERRUPTIONS, LOSS OF ANTICIPATE SAVINGS, LOSS OF CONTRACT, SHIPPING COSTS ASSOCIATED WITH INVENTORY, DELAYS IN IMPLEMENTATION OR ACCESS TO THE SERVICES, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION) EVEN IF EITHER PARTY WAS AWARE OF THE POSSIBILITY THAT SUCH LOSS OR DAMAGE MIGHT BE INCURRED BY THE OTHER. IN ANY EVENT, SUPPLIER’S TOTAL MAXIMUM LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID TO SUPPLIER BY CUSTOMER DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIM (EXLUDING ONE-OFF, ONBOARDING / IMPLEMENTATION, OR UP-FRONT FEES). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY. IN THESE JURISDICTIONS, SUPPLIER’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. THE LIMITATIONS SET FORTH IN THIS SECTION (9) WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES, THAT THE SAME REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES, AND THAT ABSENT THESE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

9. Intellectual Property Rights

All Intellectual Property Rights in the Services (including Linnworks), the Software and the Documentation shall, as between the parties, be the exclusive property of the Supplier. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any Intellectual Property Rights, or any other rights or licences in respect of the Services, Software or the Documentation. All proprietary rights in the Services, including the Software as well as any aggregate usage statistics, traffic patterns, and other non-personally identifiable data collected by Supplier in connection with use of the Services, will be the sole and exclusive property of Supplier. Supplier retains the royalty-free right to use any suggestions, ideas, feedback, or other recommendations provided by Customer or Authorized Users relating to the Services. Supplier may use Customer’s name and/or its logo on Supplier’s website and in its marketing materials to indicate that Customer is a client of Supplier. Customer hereby grants Supplier the right to contact Customer and Authorized Users in connection with their use of the Services unless otherwise stated on the Order Form.

10. Confidentiality and Publicity

Each Party shall, during and after the existence of this Agreement, hold in strictest confidence and will not use for any purpose unrelated to its performance of this Agreement or disclose to any third party, any Confidential Information of the other Party. Each Party shall not disclose Confidential Information without the prior written consent of the other Party, except (i) as may be required by law or (ii) to its employees, contractors, or agents who have a specific need to know such information and are under a written obligation of confidentiality at least as restrictive as that contained in this section. Information will not be deemed confidential if it (a) was known to the receiving Party and was acquired through proper methods, prior to its receipt from the disclosing Party, as evidenced by written records of the receiving Party; (b) is now or later becomes (through no act or failure on the part of the receiving Party) generally known through no breach of this Agreement by the receiving Party; (c) is supplied to the receiving Party by a third party that is free to make that disclosure without restriction; or (d) is independently developed by the receiving Party without use of or reference to any Confidential Information provided by the disclosing Party. The restrictions on disclosure imposed by this section do not apply to information that is required by law or order of a court, administrative agency, or other governmental body to be disclosed by the receiving Party, provided that in each such case the receiving Party provides the disclosing Party with prompt written notice of such order or requirement and reasonably assists the disclosing Party, at the disclosing Party’s expense, in seeking a protective order or other appropriate relief. Upon termination of this Agreement, each Party shall promptly cease all further use of Confidential Information, return to the other Party all physical materials containing Confidential Information, whether the materials were originally provided by the disclosing Party or copied or otherwise prepared by the receiving Party, and erase or otherwise destroy any Confidential Information kept by either Party in electronic or other non-physical form. The Parties acknowledge that the receiving Party will not be required to return to the disclosing Party or destroy those copies of Confidential Information residing on the receiving Party’s backup or disaster-recovery systems, or which must be maintained for regulatory or policy purposes. Such termination by either Party will not affect each Party’s continuing obligations under this section.

11. Termination

Either Party may terminate this Agreement upon: (1) any material breach of this Agreement by the other Party that is not cured within thirty (30) days (or within ten (10) days in case of failure to pay) following written notice thereof; (2) the other Party becoming insolvent or bankrupt, liquidating or being dissolved, or ceasing substantially all of its business; (3) a breach of clause “Compliance with Laws.”  Upon expiration or termination of this Agreement or Services authorized in an Order Form, Customer shall immediately discontinue all access and use of the Services. In the event Customer terminates this Agreement for a material and uncured breach by Supplier, Supplier shall, as Customer’s sole and exclusive remedy, refund to Customer any prepaid but unused Charges calculated on a straight-line prorated basis for the remainder of the then-current Term. In addition to any other remedies available to Supplier, Supplier may suspend Customer’s or any Authorized Users’ access to the Services, at Supplier’s sole option, in the event of any violation of this Agreement.

Upon termination or expiry of this Agreement the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and any applicable interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately upon receipt. All parties shall return or adequately destroy any and all Confidential Information belonging to either party. A party may retain any document (including any electronic document) containing the Confidential Information of the other party after the termination or expiry of this Agreement if that party is obliged to retain such document by any law or regulation or other rule enforceable against that party or if such information is explicitly noted to survive the termination of this Agreement.

12. General

a. Force Majeure

Neither party shall be liable to the other as a result of any delay or failure to perform their respective obligations under this Agreement as a result of a Force Majeure Event. If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 90 days, the Customer shall, without limiting its other rights or remedies, have the right to terminate this Agreement immediately by giving written notice to the Supplier.

b. Relationship of the Parties

It is the express intention of the parties that Supplier is an independent contractor and not an employee, agent, joint venturer or partner of Customer. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Customer and Supplier or any employee or agent of Supplier. Both parties acknowledge that Supplier is not an employee for state or federal tax purposes. Supplier shall retain the right to perform services for others during the term of this Agreement. As Supplier is not Customer’s employee, Supplier is responsible for paying all required state and federal taxes, including but not limited to FICA, FUTA, SUI, DUI, worker’s compensation, and other employee benefits to Supplier’s employees. Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

c. Inadequacy of Damages

Without prejudice to any other rights or remedies that a party may have, the Parties acknowledge and agree that damages alone may not be an adequate remedy for any breach of the terms of this Agreement by a party. Accordingly, the parties shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Agreement.

d. Relationship of the Parties

It is the express intention of the parties that Supplier is an independent contractor and not an employee, agent, joint venturer or partner of Customer. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Customer and Supplier or any employee or agent of Supplier. Supplier shall retain the right to perform services for others during the term of this Agreement.  

Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

e. Subcontracting

Either party may subcontract its obligations under this Agreement.

f. Non-Solicitation

Customer shall not, without Supplier’s prior written consent, either during the Term or within 12 months after the date of effective termination of this Agreement, engage, employ or otherwise solicit for employment any employee, agent or contractor of Supplier who has been involved in the performance of this Agreement. If Customer violates this clause, Supplier is entitled to seek injunctive relief and damages.

g. Modification and Amendments

Other than as set out in this Paragraph, no variation of this Agreement shall be effective unless made in writing and signed by or on behalf of each of the parties or by their duly authorized representatives.

Supplier, it its sole discretion, may modify this Agreement to, for example, reflect changes to the law, Platform, or Services provided to Customer by Supplier or related third-party. Customer should look at this Agreement regularly. Supplier will post notice of modifications of this Agreement, to this website, and/or in a similar form of electronic communication at its option unless the modifications entail a Material Change to the terms of the Agreement. If Customer does not agree to the modified Agreement, Customer shall contact Supplier within 30 days of the change. Continued use of the Platform constitutes Customer’s acceptance of the modified Agreement. No Material Change of this Agreement shall be effective unless made in writing and signed by or on behalf of each of the parties or by their duly authorized.

If Customer does not agree to the modified Agreement, Customer shall contact Supplier within 30 days of the change. Continued use of the Platform constitutes Customer’s acceptance of the modified Agreement.

h. Litigation Support

Except where permitted by this Agreement, Supplier shall not disclose Confidential Information, Customer Content, or Customer Data to third parties, but the restrictions on disclosure imposed by this section shall not apply to information that is required by law, subpoena, or order of a court, administrative agency, or other governmental body to be disclosed by the receiving Party, provided that in each such case the receiving Party provides the disclosing Party with prompt written notice of such order or requirement and reasonably assists the disclosing Party, at the disclosing Party’s expense, in seeking a protective order or other appropriate relief. In the event of any litigation or preparation for litigation related to Customer’s use of the Services or related projects, if Customer or any of Customer’s agents or representatives requires Supplier to provide expert testimony on behalf of Customer, or to gather data, research information, attend meetings, or perform other related services of any kind in support of Customer, Supplier shall provide such services and Customer shall compensate Supplier at a reasonable rate to be determined per hour per individual providing such services, plus all reasonable out-of-pocket expenses, including, but not limited to, travel, lodging, and meals where necessary.

i. Waiver

The failure to exercise, or delay in exercising, a right, power or remedy provided by this Agreement or by law shall not constitute a waiver of that right, power or remedy.  If a party waives a breach of any provision of this Agreement, this shall not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.

j. Compliance with Laws

Both Parties shall comply with all applicable local, state, national, and foreign laws, rules, and regulations including all applicable export and import laws and regulations in connection with their performance, access, and/or use of the Services under this Agreement. Customer shall comply with all legal duties applicable to Customer including obligations as data controller by virtue of Customer’s role in determining Authorized Users. Specifically, Customer shall provide relevant persons and/or participants with all information Customer is required by law to provide, and, if necessary, shall obtain the consent of these persons. The Services and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Authorized Users to access or use the Services in a U.S.- embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria, or Crimea) or in violation of any U.S. export law or regulation.

l. Assignment

Neither Party may assign, delegate, or otherwise transfer this Agreement, in whole or in part, voluntarily, involuntarily, by operation of law, or otherwise without the other Party’s prior written consent; except that: (a) Supplier may assign, delegate, or otherwise transfer this Agreement without such consent in connection with any merger, consolidation, reorganization, or any sale of all or substantially all of such Party’s assets or any other transaction in which more than fifty percent (50%) of its voting securities are transferred (“Change in Control”) and Supplier’s prior written consent and subject to all of the terms of this Agreement. Any attempt to assign, delegate, or otherwise transfer this Agreement other than in accordance with this provision will be null and void.

l. Severability

If any provision, or part of a provision, of this Agreement is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision shall be deemed not to form part of this Agreement, and the legality, validity or enforceability of the remainder of the provisions of this Agreement shall not be affected, unless otherwise required by operation of applicable law.

m. Notice

Any notice required to be given to a party under or in connection with this Agreement shall be in English and in writing (which includes email) and shall be delivered to the other party by hand or sent by recorded delivery to the address set out in the Order Form, for the attention of the person who signed such Order Form. Any notice shall be deemed to have been duly received if delivered by hand, when left at the address referred to above or, if sent by recorded delivery, on the second Business Day after posting or if this time falls outside business hours in the place of receipt, when business hours resume. In this paragraph, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

n. Governing Law, Jurisdiction & Binding Arbitration

Contractual disputes or claims), shall be governed by laws of Delaware. In the event of any dispute, the parties agree to submit the dispute to binding and confidential arbitration in Travis County, Texas. The prevailing party shall be entitled to attorney’s fees and costs (including expert witness fees) incurred as a result of the dispute.

o. Entire Agreement / Survival

This Agreement, together with the content of any web pages (as identified by any URLs contained herein), any exhibits, any future non-material modifications, and the Order Form(s) constitutes the entire agreement between the Parties with respect to the subject matter hereof and replaces any prior understandings, written or oral. Further, under no circumstances will the provisions of any document issued by Customer (including, but not limited to, any request for quotes or proposals, Customer purchase orders, non-disclosure agreements, or Customer exhibits to this Agreement and/or vendor forms or registrations with terms that conflict with this Agreement) be deemed to modify, alter, or expand the rights, duties, or obligations of the Parties under this Agreement, regardless of any failure of Supplier to object to such terms, provisions, or conditions. If there is any conflict between the terms of this Agreement and the Order Form, the Order Form will prevail. In addition to any rights that accrued prior to termination, the provisions of paragraphs: Paragraph 8 ("Warranties and Liabilities"), Paragraph 9 ("Intellectual Property Rights"), Paragraph 10 ("Confidentiality and Publicity"), Paragraph 12d ("Relationship of the Parties"), and Paragraph 12n ("Governing Law & Jurisdiction") and this Paragraph 12o ("Entire Agreement/Survival") shall survive any termination of this Agreement.

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