Shuup NEXT Software License Agreement

Last updated on: December 31, 2021

This Software License Agreement (this “Agreement”), dated as of the effective date in Section 13, Signatures in this agreement (the “Effective Date”), is by and between Shuup Commerce Inc, a Delaware Corporation with offices located at 200 CONTINENTAL DR STE 401 NEWARK DE 19713-4337 (“Licensor”) and the undersigned party set forth on Section 13, Signatures in this Agreement (“Licensee”). Licensor and Licensee may be referred to herein collectively as the “Parties” or individually as a “Party.”

WHEREAS, Licensor desires to license the Software described in Exhibit A attached hereto to Licensee; and

WHEREAS, Licensee desires to obtain a license to use the Software for its Internal Business Purpose described in Exhibit A, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions.

(a)  “User” means an employee or contractor of Licensee who Licensee permits to access and use the Software and/or Documentation pursuant to Licensee’s license hereunder.

(b) “Derivative Works” means any software programs, and copies thereof, which are developed by Licensor and which are based on or incorporate any part of the Licensed Software delivered by Licensor hereunder, including without limitation any revision, modification, translation (including compilation or recapitulation by computer), abridgment, condensation, expansion, or any other form in which the Licensed Software may be recast, transformed or adapted, and that, if prepared without Licensor’s authorization, would constitute a patent, copyright or trade secret infringement of the Licensed Software.

(c)  “Documentation” or “Licensed Documentation” means Licensor’s user manuals, handbooks, and installation guides relating to the Software provided by Licensor to Licensee either electronically or in hard copy form/end user documentation relating to the Software.

(d) “Licensee Products” means those Licensee products and services which incorporate the Licensed Software and are used for Licensee’s Internal Business Purpose as referenced in Exhibit A hereto.

(e) “Object Code” means the Licensed Software supplied by Licensor to Licensee hereunder, or Derivative Works developed by Licensee hereunder, in machine-readable, compiled object code form.

(f) “Source Code” means the computer source code for the Licensed Software supplied by Licensor to Licensee hereunder, including any updates, improvements, or modifications hereinafter furnished to Licensee by Licensor in connection with the Source Code, whether requested by Licensee or initiated by Licensor.

(g) “Source Materials” means:

(i)            the computer source code for the Licensed Software supplied by Licensor to Licensee hereunder, including source code modifications containing Licensor’s confidential information in human perceivable form; and

(ii)           all other human perceivable or readily reverse engineered descriptions and implementations of the Software or portion thereof.

(h)  “Software” or “Shuup Software” or “Licensed Software” means the product described in Exhibit A and Exhibit B in Source Code format and includes all related image files, database schemas, underlying ‌ideas, algorithms, file ‌formats or ‌non public APIs.

(i) or incorporated into the Software, including any open source software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.

(j) “Instance” means any single-vendor or multi-vendor marketplace on a given domain or subdomain. An Instance is defined as a single domain including sub-domains that operate as a single entity. What constitutes a single entity shall be at the sole discretion of the Licensor.

(k) “Server” means each physical or virtual server from which the Software may be accessed and used either for Production Purposes or for Non-Production Purposes.

(l) “Non-Production Server Instance” means a Server used for non-production purposes such as development, testing, training and other non-operational business transactions.

(m) “Production Server Instance” means a Server used for production purposes.

2. License.

(a) License Grant. Subject to and conditioned on Licensee’s payment of Fees and compliance with all other terms and conditions of this Agreement, Licensor hereby grants Licensee a non-exclusive, non-sublicensable (except as permitted in (i) below), and non-transferable (except in compliance with Section 12(g)) license during the Term to: (i) use and modify one copy of the Software solely for Licensee’s Internal Business Purpose specified in Section 4 of Exhibit A (LICENSEE’S INTERNAL BUSINESS PURPOSE OF USING THE SOFTWARE) for each instance allowed as specified in Section 1 of Exhibit A (LICENSE TERMS, PAYMENT AND FEES), including the right to distribute or make available the Software in object code only to its customers and suppliers solely in connection with Licensee’s own product or service offering referenced in Section 4 of Exhibit A; and (ii) use and make a reasonable number of copies of the Documentation solely for Licensee’s Internal Business Purpose in connection with Licensee’s use and modification of the Software. Licensee may make one copy of the Software solely for back-up, disaster recovery, and testing purposes and any other copies only to the extent necessary for the purposes of exercising its rights under the license grant in this Section 2(a). Any such copy of the Software: (x) remains Licensor’s exclusive property; (y) is subject to the terms and conditions of this Agreement; and (z) must include all copyright or other proprietary rights notices contained in the original. Additional Software licenses must be purchased in order to install and use the Software on additional instances of use. Licensor reserves the right to determine whether use of the Software is in compliance with this Agreement. The Licensor owns all rights, title and interest to the Software (including all intellectual property rights) and reserves all rights to the Software that are not expressly granted in this Agreement.

(b) Use Restrictions. Licensee shall not use the Software or Documentation for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement (including for the purpose of the license grant in (Section 2(a)), Licensee shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Software or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or the Documentation to a third party not in connection with the Licensee’s own products or services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part, or underlying ideas, algorithms, file formats or non-public APIs to the Software, in whole or in part; (iv) remove any proprietary notices from the Software or the Documentation; (v) combine or incorporate the Software or Documentation in any other program or system without our prior written consent of Licensor; (vi) use the Software or Documentation for any purpose other than for the Licensee’s Internal Business Purpose; (vii) use the Software for more than the authorized number of instances allowed as specified in Section 1 of Exhibit A (LICENSE TERMS, PAYMENT AND FEES); (viii) use the Software for the benefit of any third party; (ix) interfere with any license key mechanism in the Software or otherwise circumvent mechanisms in the Software intended to limit Licensee’s use of the Software; (x) interfere with any tracking mechanism in the Software used for checking Licensee’s use of the Software, such as the number of instances of use by Licensee, or otherwise circumvent mechanisms in the Software intended to check Licensee’s use of the Software; or (xi) use the Software 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.

(c) Reservation of Rights. Licensor reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Software.

(d) Delivery. Licensor shall deliver the Software electronically, on tangible media, or by other means, in Licensor’s sole discretion, to Licensee within five (5) business days following the Effective Date. Risk of loss of any tangible media on which the Software is delivered will pass to Licensee on delivery to carrier.

(e) Trademark Use and Protection.  Subject to the terms of this Agreement, Licensor may supply to Licensee software, manuals, and related promotional materials bearing Licensor’s logos, designs and other trademarks which Licensor may adopt from time to time for use in connection with the Licensee Products (the “Marks”).  Licensor hereby grants Licensee a non-exclusive, non-transferable license to use the Marks in connection with the Licensee Products to the extent reasonably necessary to allow Licensee to distribute and sell Licensee Products under this Agreement. Licensee acknowledges Licensor’s exclusive ownership of the Marks and agrees not to claim any right, title or interest in or to the Marks, or to apply for registration or register any of the Marks in any jurisdiction. Licensee acknowledges that all goodwill created or otherwise associated with the promotion, marketing, distribution and support of the Licensed Software and Marks shall accrue directly to the benefit of Licensor and shall be the sole and exclusive property of Licensor. Notwithstanding the preceding, Licensor acknowledges that Licensee will also benefit from acting as a Licensee of the Licensed Software.  Licensee agrees not to use the Marks without Licensor’s prior written consent as to the specific manner of use.  Licensee shall provide Licensor not less than thirty (30) days’ prior written notice of each proposed use of the Marks, including sufficient detail to permit an informed decision by Licensor.

(f) Rights in Licensee Products and Derivative Products.  The Derivative Works, the Licensee Products and any enhancements or improvements created by Licensee by embedding Licensor’s Software and intellectual property rights in such Products shall constitute the sole and exclusive property of Licensee.

(g) Documentation.  Licensee may provide end-user documentation for Licensee Products that incorporates the Licensed Software and/or Derivative Works.  For such purpose, Licensor hereby grants to Licensee a non-exclusive, non-transferable license to modify and create derivative works of those portions of the Licensor Documentation that are not labeled “Licensor Confidential,” proprietary or by a similar term and are designated by Licensor as usable for such purpose.  Appropriate credits shall be given to Licensor in such documentation.

(h) Ownership; Derivative Works.  Licensor shall retain all right, title and interest, including all intellectual property rights, in and to the Licensed Software, Licensor Documentation and the Marks.

(i) Upgrades, Support and Enhancements to Source Code. Licensor may charge a fee for any upgrades, modifications, revisions, or enhancements to the Source Code (the “Upgrade Services”).  As a condition to making Upgrade Services available, Licensee first shall pay Licensor any such upgrade fees as are specified by Licensor.

(j) Competitive Products.  During the term of this Agreement, Licensee agrees not to create, market, or distribute Licensee Products incorporating Licensed Software into a product intended to compete with Licensed Software.

(k) Restrictions on Export. Licensee acknowledges and agrees that it shall not import, export, or re-export the Software, Documentation, or Licensee Products to any country in violation of the laws and regulations of any applicable jurisdiction. Licensee further agrees to defend, indemnify, and hold Licensor harmless for any losses, costs, claims, or other liabilities arising out of Licensee’s breach of this section.

(l) Licensor reserves the right to modify or terminate this Agreement or the Software for any reason, without notice at any time. Not all Software and features are available in every jurisdiction, and we are under no obligation to make any Software or features available in any jurisdiction.

(m) Licensor reserves the right to refuse service to anyone for any reason at any time.

(n) Licensor may, but have no obligation to, remove Materials and suspend or terminate this Agreement if Licensor determines in Licensor’s sole discretion that the goods or services offered via the Software by the Licensee, or the Materials uploaded or posted to the Software used by the Licensor, violate the Licensor’s Acceptable Use Policy (“AUP”) or this Agreement.

(o) Verbal or written abuse of any kind (including threats of abuse or retribution) of any Licensor customer, employee, member, or officer will result in immediate termination of this Agreement.

(p) Licensor does not pre-screen Materials and it is in Licensor’s sole discretion to refuse or remove any Materials from the Software including the Software Licensee uses.

(q) Licensor reserves the right to provide the Software to Licensee’s competitors and makes no promise of exclusivity in any particular market segment. Licensee further acknowledges and agrees that Licensor employees and contractors may also be Licensor customers/merchants and that they may compete with Licensee, although they may not use Licensee’s Confidential Information (as defined in Section 6) in doing so.

(r) Licensor reserves the right to request documentation to determine or confirm Licensee identity. Documentation may include, but is not limited to, a scanned copy of Licensee business license, government issued photo ID, the last four digits of the credit card on file, Licensee’s status as an employee of an entity, etc.

3. Licensee Responsibilities.

(a)  General. Licensee is responsible and liable for all uses of the Software and Documentation resulting from access provided by Licensee, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Licensee is responsible for all acts and omissions of Licensee’s Users who use the Software, and any act or omission by a User that would constitute a breach of this Agreement if taken by Licensee will be deemed a breach of this Agreement by Licensee. Licensee shall take reasonable efforts to make all Users aware of this Agreement’s provisions as applicable to such User’s use of the Software, and shall cause Users to comply with such provisions.

(b)  Third-Party Products. Licensor may from time to time recommend, provide Licensee with access to, or enable third party software, applications (“Apps”), products, services, or website links (collectively, “Third Party Services”) for Licensee’s consideration or use. Such Third Party Services are made available only as a convenience, and Licensee’s purchase, access or use of any such Third Party Services is solely between Licensee and the applicable third party services provider (“Third Party Provider”). In addition to this Agreement, Licensee also agrees to be bound by the additional service-specific terms applicable to services Licensee purchases from, or that are provided by, Third Party Providers.

(i) Licensor may suggest independent third party developers (“Development Partners”) that can help Licensee build and operate the Software.

(i) Licensee can engage and work with Development Partners directly.

(i) Any use by Licensee of Third Party Services offered through the Services, Development Partners, or Licensor’s website is entirely at LIcensees own risk and discretion, and it is Licensee’s responsibility to read the terms and conditions and/or privacy policies applicable to such Third Party Services before using them. In some instances, Licensor may receive a revenue share from Third Party Providers that Licensor recommends to Licensee or that Licensee otherwise engages through Licensee’s use of the Softwaare, Development Partners, or Licensor’s website.

(i) Licensor does not provide any warranties or make representations to Licensee with respect to Third Party Services. LIcensee acknowledges that Licensor has no control over Third Party Services and shall not be responsible or liable to Licensee or anyone else for such Third Party Services. The availability of Third Party Services on Licensor’s websites, or the integration or enabling of such Third Party Services with the Software does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Licensor. Licensor does not guarantee the availability of Third Party Services and Licensee acknowledges that Licensor may disable access to any Third Party Services at any time in its sole discretion and without notice to Licensee. Licensor is not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Service. Licensor strongly recommends that Licensee seeks specialist advice before using or relying on Third Party Services, to ensure they will meet Licensee’s needs. In particular, tax calculators should be used for reference only and not as a substitute for independent tax advice, when assessing the correct tax rates Licensee should charge to Licensee’s customers.

(i) If Licensee installs or enables a Third Party Service for use with the Software, Licensee grants Licensor permission to allow the applicable Third Party Provider to access Licensee data and other Materials and to take any other actions as required for the interoperation of the Third Party Service with the Services, and any exchange of data or other Materials or other interaction between Licensee and the Third Party Provider is solely between Licensee and such Third Party Provider. Licensor is not responsible for any disclosure, modification, or deletion of Licensee data or other Materials, or for any corresponding losses or damages LIcensee may suffer, as a result of access by a Third Party Service or a Third Party Provider to Licensee’s data or other Materials. Google Maps is a Third Party Service that is used within the Services. Licensee’s use of the Services is subject to Licensee’s acceptance of the Google Maps and Earth Enterprise Universal Acceptable Use Policy, Google Maps and Google Earth Additional Terms of Service and Google Privacy Policy as it may be amended by Google from time to time.

(i) Licensee acknowledges and agrees that: (i) by submitting a request for assistance or other information to Development Partners, Licensee consents to being contacted by one or more Development Partners at the primary email address (or such other email address provided by Licensee) as well as the applicable user email address; and (ii) Licensor may receive all email communications exchanged between Licensee and Development Partners. Licensee further agrees that Licensor may share Licensee’s contact details and the background information that Licensee submits with Development Partners. Development Partners may require access to certain admin pages in the Software used by Licensee. Licensee chooses the pages that the Development Partners can access.

(i) The relationship between Licensee and any Third Party Provider is strictly between Licensee and such Third Party Provider, and Licensor is not obligated to intervene in any dispute arising between Licensee and a Third Party Provider.

(i) Under no circumstances shall Licensor be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or Licensee’s contractual relationship with any Third Party Provider, including any Development Partners. These limitations shall apply even if Licensor has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.

(i) Licensee agrees to indemnify and hold Licensor and (as applicable) its parent, subsidiaries, affiliates, partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, arising out of Licensee’s use of a Third Party Service or Licensee’s relationship with a Third Party Provider.

(c)  Audits. At Licensor’s request, Licensee agrees to provide a signed certification that Licensee is using all Software pursuant to and in compliance with the terms of this Agreement. Licensee agrees to allow Licensor, or Licensor’s authorized agent, to audit Licensee’s use of the Software, including that of Licensee’s authorized users, and any repositories Licensee may be using with the Software. Licensor will provide Licensee with at least one (1) day advance notice prior to the audit, and the audit will be conducted during normal business hours. Licensor will bear all out-of-pocket costs that Licendor incurs for the audit, unless the audit reveals that Licensee has exceeded the legitimate use of the software or license rights granted to Licensee. Licensee will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at Licensee’s own cost. If Licensee exceeds the legitimate use of the Software or license rights granted to Licensee hereunder, Licensor may invoice Licensee for any past or ongoing unauthorized use. Additionally, Licensor will be entitled to invoice Licensee with triple the amount Licensee was charged for any past or ongoing use as liquidated damages. Licensee will pay any invoice received pursuant to this Section 3(b) promptly after receipt thereof. This remedy is without prejudice to any other remedies available to Licensor at law or equity or under this Agreement. Additionally, Licensor will further be entitled to the actual damages incurred by Licensor because of Licensee’s violation of this Section 3, any additional profits of the Licensee obtained from using the Software in violation of this Agreement, and any other damages incurred from the burden of seeking compensation for damages from the Licensee.

(d) Licensee must be the older of: (i) 18 years, or (ii) at least the age of majority in the jurisdiction where License resides and from which Licensee uses the Software.

(e) Licensee confirms that Licensee is receiving any Software provided by Licensor for the purposes of carrying on a business activity and not for any personal, household, or family purpose.

(f) Licensee acknowledges that Licensor will use the email address Licensee provides to Licensor as the primary method for communication with Licensee. Licensee must monitor the email address Licensee provides to Licensor and Licensee email address must be capable of both sending and receiving messages. Licensee email communications with Licensor can only be authenticated if they come from Licensee email address.

(g) Licensee is responsible for keeping Licensee’s password secure. Licensor cannot and will not be liable for any loss or damage from Licensee’s failure to maintain the security of Licensee’s password.

(h) Licensee acknowledges that Licensee is responsible for the operation of the Software.

(i) Licensee acknowledges and agrees to provide public-facing contact information, a refund policy, and order fulfillment timelines to their customers.

(j) Licensor is not a marketplace. Any contract of sale through Licensee’s use of the Software is directly between Licensee and the buyer.

(k) Licensee is responsible for all activity and content such as photos, images, videos, graphics, written content, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted, or exhibited on or in connection with Licensee’s use of the Software

(l) Licensee must read, agree with and accept all of the terms and conditions contained or expressly referenced in this Agreement, including Licensor’s Acceptable Use Policy (“AUP”) and Privacy Policy, and, if applicable, the Supplementary Terms of Service for E.U. Merchants (“EU Terms”), the Licensor’s API License and Terms of Use (“API Terms”) and the Licensor Data Processing Addendum (“DPA”) before Licensee may use any Shuup Software. Additionally, if Licensee offers goods or services in relation to COVID-19, Licensee must read, acknowledge, and agree to the Rules of Engagement for Sale of COVID-19 Related Products.

(m) A breach or violation of any term in the Agreement, including the AUP, as determined in the sole discretion of Licensor may result in an immediate termination of this Agreement.

(n) Licensee acknowledges and agrees that Licensor may amend this Agreement at any time by posting the relevant amended and restated Agreement on Licensor’s website, available at https://shuup.com/legal/shuup-next-license/ and such amendments to the Agreement are effective as of the date of posting, or by emailing Licensee the relevant amended and restated Agreement. Licensee’s continued use of the Software after the amended Agreement is posted to Licensor’s website or emailed to Licensee constitutes Licensee’s agreement to, and acceptance of, the amended Agreement. If Licensee does not agree to any changes to the Agreement, do not continue to use the Software.

(o) Licensee may not use the Software for any illegal or unauthorized purpose nor may Licensee, in the use of the Software, violate any laws in Licensee’s jurisdiction (including but not limited to copyright laws), the laws applicable to Licensee in Licensee’s customer’s jurisdiction, or the laws of The United States and the State of Delaware. Licensee will comply with all applicable laws, rules, and regulations in Licensee’s use of the Service and Licensee’s performance of obligations under the Agreement.

(p) The Shuup API License and Terms of Use at https://shuup.com/legal/api-license-and-terms-of-use/ govern Licensee’s access to and use of the Shuup API (as defined therein). Licensee is solely responsible for the activity that occurs using Licensee’s API Credentials (as defined in the API Terms) and for keeping Licensee API Credentials secure.

(q) Licensee agrees not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Software, use of the Software, or access to the Software without the express written permission by Licensor.

(r) Licensee agrees not to input, upload, transmit, or otherwise provide to or through the Software or Shuup Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code.

(s) Licensee agrees not to damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Software, Shuup Systems, or Licensor’s provision of services to any third party, in whole or in part.

(t) Licensee agrees not to remove, delete, alter, or obscure any trademarks, Specifications, Documentation, EULA, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Software or Shuup Materials, including any copy thereof.

(u) Licensee agrees not to access or use the Software or Shuup Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Licensor customer), or that violates any applicable Law.

(v) Licensee agrees not to access or use the Software or Shuup Materials for purposes of competitive analysis of the Software or Shuup Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Licensor’s detriment or commercial disadvantage.

(w) Licensee agrees not to access or use the Software or Shuup Materials in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage.

(x) Licensee agrees not to infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.

(y) Licensee acknowledges and agrees that Licensee has any and all insurance required to operate Licensee’s business and provide Licensee’s services.

(z) Licensee acknowledges and agrees that Licensor is not a party to any contracts, agreements, or communications with any of Licensee’s End Users.

(aa) Licensee acknowledges and agrees that Licensee is solely responsible for the operation of Licensee’s business and proper use of the Software.

(bb) Licensee shall not purchase search engine or other pay per click keywords (such as Google Ads), or domain names that use Licensor or Shuup trademarks and/or variations and misspellings thereof.

(cc) Questions about the Agreement should be sent to legal@shuup.com.

(dd) Licensee understands that Licensee’s Materials (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.

(ee) The Software may allow Licensee to send certain communications to Licensee’s customers by short message service (SMS) messaging (for example, sending order confirmation notifications via SMS) (the “SMS Services”). Licensee will only use the SMS Services in compliance with this Agreement, the policies of the 3rd party SMS integration, and the laws of the jurisdiction from which Licensee sends messages, and in which Licensee’s messages are received.

(ff) Licensee acknowledges and agrees that Licensee’s use of the Software, including information transmitted to or stored by Licensor, is governed by its privacy policy at https://shuup.com/legal/privacy-policy/

(gg) The Agreement may be available in languages other than English. To the extent of any inconsistencies or conflicts between this English Agreement and Licensor’s Agreement available in another language, the most current English version of the Agreement available at https://shuup.com/legal/shuup-next-license/ or the latest version emailed to the Licensee will prevail. Any disputes arising out of this Agreement will be resolved in English unless otherwise determined by Licensor (acting in its sole discretion) or as required by applicable law.

(hh) All the terms and provisions of the Agreement shall be binding upon and inure to the benefit of the parties to the Agreement and to their respective heirs, successors, permitted assigns and legal representatives. Licensor shall be permitted to assign this Agreement without notice to Licensee or consent from Licensee. Licensee shall have no right to assign or otherwise transfer the Agreement, or any of Licensee’s rights or obligations hereunder, to any third party without Licensor’s prior written consent, to be given or withheld in Licensor’s sole discretion.

(ii) If any provision, or portion of the provision, in this Agreement is, for any reason, held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability will not affect any other provision (or the unaffected portion of the provision) of the Agreement, and the Agreement will be construed as if such invalid, illegal or unenforceable provision, or portion of the provision, had never been contained within the Agreement.

4. Support. This Agreement does not entitle Licensee to any support for the Software.

5. Fees and Payment.

(a) Licensee will pay the Fees applicable to Licensee’s use of the Software and any other applicable fees, including but not limited to applicable fees relating to the value of sales when using all payment providers other than Shuup Payments (“Transaction Fees”), and any fees relating to Licensee’s purchase or use of any products or services such as Third Party Services (“Additional Fees”). Together, the Fees applicable to Licensee’s use of the Software, Transaction Fees and the Additional Fees are referred to as the “Fees”.

(b) Licensee shall pay Licensor the fees (“Fees”) without offset or deduction. Licensee shall make all payments hereunder in US dollars on or before the due date. If Licensee fails to make any payment when due, in addition to all other remedies that may be available: (i) Licensor 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; and (ii) Licensee shall reimburse Licensor for all costs incurred by Licensor in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days following written notice thereof, Licensor may prohibit access to the Software and terminate the license granted hereunder until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Licensee or any other person by reason of such prohibition of access to the Software.

(c) Licensee must keep a valid payment method on file with Licensor to pay for all incurred and recurring Fees. Licensor will charge applicable Fees to any valid payment method that Licensee authorizes (“Authorized Payment Method”), and Licensor will continue to charge the Authorized Payment Method for applicable Fees until the Agreement is terminated, and any and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees and other charges are in U.S. dollars, and all payments shall be in U.S. currency.

(d) Fees are paid in advance and will be billed in twelve (12) month intervals (each such date, a “Billing Date”). Transaction Fees and Additional Fees will be charged from time to time at Licensor’s discretion. Licensee will be charged on each Billing Date for all outstanding Fees that have not previously been charged. Licensees have approximately two weeks to bring up and settle any issues with the billing of Subscription Fees.

(e) If Licensor is not able to process payment of Fees using an Authorized Payment Method, Licensor will make a second attempt to process payment using any Authorized Payment Method 3 days later. If the second attempt is not successful, Licensor will make a final attempt 3 days following the second attempt. If Licensor’s final attempt is not successful, Licensor may suspend and revoke access to the Software. This Agreement may be reactivated upon Licensee’s payment of any outstanding Fees, plus the Fees applicable to Licensee’s next billing cycle. If the outstanding Fees remain unpaid for 60 days following the date of suspension, Licensor reserves the right to terminate this Agreement.

(f) All Fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods, and services, harmonized or other taxes, fees or charges now in force or enacted in the future (“Taxes”).

(g) Licensee is responsible for all applicable Taxes that arise from or as a result of Licensee’s subscription to or purchase of Licensor’s products and services. To the extent that Licensor charges these Taxes, they are calculated using the tax rates that apply based on the billing address Licensee provides to Licensor. Such amounts are in addition to the Fees for such products and services and will be billed to Licensee’s Authorized Payment Method. If Licensee is exempt from payment of such Taxes, Licensee must provide Licensor with evidence of Licensee’s exemption, which in some jurisdictions includes an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date Licensor receives evidence satisfactory to Licensor of Licensee’s exemption. If Licensee is not charged Taxes by Licensor, Licensee is responsible for determining if Taxes are payable, and if so, self-remitting Taxes to the appropriate tax authorities in Licensee’s jurisdiction.

(h) For the avoidance of doubt, all sums payable by Licensee to Licensor under this Agreement shall be paid free and clear of any deductions or withholdings whatsoever. Other than Taxes charged by Licensor to Licensee and remitted to the appropriate tax authorities on Licensee’s behalf, any deductions or withholdings that are required by law shall be borne by Licensee and paid separately to the relevant taxation authority. Licensor shall be entitled to charge the full amount of Fees stipulated under this Agreement to Licensee’s Authorized Payment Method ignoring any such deduction or withholding that may be required.

(i) Licensee is responsible for all applicable Taxes that arise from or as a result of any sale using the Software.

(j) All Fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Licensee is responsible for all sales, use, 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 Licensee hereunder, other than any taxes imposed on Licensor’s income.

(k) Licensee must maintain an accurate location in the administration menu of the Software. If Licensee changes jurisdictions, Licensee must promptly update Licensee’s location in the administration menu.

6. Confidential Information. From time to time during the Term, either Party 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/in written or electronic form or media, and whether or not marked, designated or otherwise identified as “confidential” (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 at the time of disclosure; (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 who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order 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 shall first have given written notice to the other Party and made 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. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), 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.

7. Intellectual Property Ownership; Feedback.

(a)  Licensee acknowledges that, as between Licensee and Licensor, Licensor owns all right, title, and interest, including all intellectual property rights, in and to the Software and Documentation and, with respect to Third-Party Products, the applicable third-party licensors own all right, title and interest, including all intellectual property rights, in and to the Third-Party Products.

(b)  Feedback. If Licensee or any of its employees or contractors sends or transmits any communications or materials to Licensor by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Licensor is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Licensee hereby assigns to Licensor on Licensee’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Licensor is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Licensor is not required to use any Feedback.

8. Warranties

(a) Licensee’s use of the Software is at Licensee’s sole risk. The Software is provided on an “as is” and “as available” basis without any warranty or condition, express, implied, or statutory.

(b) Licensor does not warrant that the Software will be uninterrupted, timely, secure, or error-free.

(c) Licensor does not warrant that the results that may be obtained from the use of the Software will be accurate or reliable.

(d) Licensor is not responsible for any of Licensee’s tax obligations or liabilities related to the use of Licensor’s Software.

(e) Licensor does not warrant that the quality of any products, services, information, or other materials purchased or obtained by Licensee through the Software will meet Licensee’s expectations, or that any errors in the Software will be corrected.

9. Indemnification.

(a) Licensee agrees to indemnify and hold Licensor and (as applicable) Licensor’s parent, subsidiaries, affiliates, partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Licensee’s breach of this Agreement or the documents it incorporates by reference (including the AUP), or Licensee’s violation of any law or the rights of a third party.

10. Limitations of Liability.

(a) Licensee expressly understands and agrees that, to the extent permitted by applicable laws, Licensor shall not be liable for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data, or other intangible losses resulting from the use of or inability to use the Software, Licensor’s Services, or this Agreement (however arising including negligence).

11. Term and Termination.

(a)  Term. The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect indefinitely (the “Term”). Upon the expiration of the original Term or any renewal term of this Agreement, this Agreement shall be automatically renewed for a one (1) year period unless, at least sixty (60) days prior to the renewal date, either Party gives the other Party written notice of its intent not to continue the Agreement. During any renewal term of this Agreement, the terms, conditions, and provisions set forth in this Agreement shall remain in effect unless modified in accordance with Section 12(k).

(b)  Termination.

(i)  Licensor reserves the right to modify or terminate this Agreement or the Software for any reason, without notice at any time (unless otherwise required by applicable law). Termination of this Agreement shall be without prejudice to any rights or obligations which arose prior to the date of termination.

(ii)  Fraud: Without limiting any other remedies, Licensor may suspend or terminate this Agreement if Licensor suspects that Licensee (by conviction, settlement, insurance, or escrow investigation, or otherwise) has engaged in fraudulent activity in connection with the use of the Software.

(c)  Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, the license granted hereunder will also terminate, and, without limiting Licensee’s obligations under Section 6, Licensee shall cease using and delete, destroy, or return all copies of the Software and Documentation and certify in writing to the Licensor that the Software and Documentation has been deleted or destroyed. No expiration or termination will affect Licensee’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Licensee to any refund.

• If at the date of termination of the Service, there are any outstanding Fees owing by Licensee, Licensee will receive one final invoice via email. Once that invoice has been paid in full, Licensee will not be charged again.

(d)  Survival. This Section 11(d) and Sections 1, 2, 5, 6, 7, 8, 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

(e) No Refunds. In the event of the termination of this Agreement, no portion of any payments of any kind whatsoever previously provided to Licensor hereunder shall be owed or be repayable to Licensee.

12. Miscellaneous.

(a)  Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference. The failure of Licensor to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement, including all terms and conditions and other documents it incorporates by reference, is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provision of the Agreement shall remain in full force and effect. The Agreement, including the documents it incorporates by reference, constitute the entire agreement between Licensee and Licensor and govern Licensee’s use of the Software, superseding any prior agreements between Licensee and Licensor (including, but not limited to, any prior versions of the Agreement).

(b)  Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.

(c)  Force Majeure. In no event shall Licensor be liable to Licensee, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond Licensor’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

(d)   Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(e)  Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law.

(f)  Governing Law; Submission to 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 licenses granted hereunder will be instituted exclusively in the courts of the State of Delaware in each case located in the city of Newark, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

(g)  Assignment. Licensee may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Licensor. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.

(h)  Export Regulation. The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee 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 available outside the US.

(i)  Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by Licensee of any of its obligations under Sections 1, 2, and 6, would cause the Licensor irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the Licensor will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

(j)  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.

(k) Modification. Except as otherwise provided, the terms and conditions of this Agreement supersede all other communications, negotiations, and/or prior oral or written statements regarding the subject matter of this Agreement.

(i)  Prices for using the Software are subject to change upon 30 days’ notice from Licensor. Such notice may be provided at any time by posting the changes to the Licensor Site (shuup.com) or to the administration menu of the Software via an announcement, or by sending an email to the Licensee email address.

(ii)  Licensor reserves the right at any time, and from time to time, to modify or discontinue, the Software or this Agreement (or any part thereof) with or without notice (unless otherwise required by applicable law).

(iii)  Licensor shall not be liable to Licensee or to any third party for any modification, price change, suspension, or discontinuance of the Software or this Agreement.

13. Non-Solicitation.

• During a term of five (5) years after this agreement goes into effect, Licensee shall not, and shall not assist any other Person to, directly or indirectly, recruit or solicit (other than by general advertisement not directed specifically to any Person or Persons) for employment or engagement as an independent contractor any Person then or within the prior 12 months employed or engaged by Licensor or any Subcontractor and involved in any respect with the Software or the performance of this Agreement. In the event of a violation of this Section 13, this Agreement will immediately be terminated, and Licensor will be entitled to liquidated damages equal to the compensation paid by Licensor to the applicable employee or contractor during the prior 12 months.

EXHIBIT A

Version 1.04

 

Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Agreement.

1 LICENSE TERMS, PAYMENT AND FEES:

Total fees are US$11,988.00 per year. Licensor may terminate this Agreement (to be effective immediately) if any Fees fail to be paid on time in accordance with this Agreement by wire transfer to the bank account as described in Exhibit C.

Requirement		Description
Designated Server IP-address	–	IP-addresses of the Designated Servers.
Permitted number of Designated Servers	1	Number of Designated Servers
Permitted number of production instances	1	Number of permitted production instance installations.
Permitted number of test instances	1	Number of permitted test instance installations.
Permitted number of marketplaces instances (single-vendor or multi-vendor instances) per paid Monthly License Fee	1	For each additional marketplace (single-vendor or multi-vendor instance), an additional Monthly License Fee must be paid.
Number of Github accounts. (+$100 per month for each new Github Account (paid annually)).	1	Number of developers who will be granted access to the Shuup Self Hosted Source Code and addons Github repositories.
Term and Renewal	Agreed that recurring payment will be for 12 months at a time.	It is agreed upon that this Agreement renews on the same day after 12 months of the signing, and every forthcoming 12-month period until terminated in the manner provided in the Agreement.
Monthly License Fee: (12 months paid in same invoice in advance). Monthly License Fee pays for 1 permitted marketplace (multivendor instance).­­­­	$999,00 * 12 months = $11,988.00.	USD
Terms of payment.	On Receipt.

2 DESCRIPTION OF LICENSOR’S BUSINESS

Licensor licenses Shuup Single-vendor and Multi-vendor Ecommerce Marketplace Software to domestic and international clients as a Software as a Service license, Self Hosted license, and Perpetual license. Shuup software is built for marketplace owners looking to allow a single vendor or multiple vendors to sell services, digital goods, or physical products from a single online Marketplace, much like Amazon, Yelp, or Postmates. Shuup brings new marketplace ideas to life and takes existing ecommerce operations to the next level by offering in-house design and customization services for Shuup License customers.

3 DESCRIPTION OF SOFTWARE:

Shuup is a standalone eCommerce multi-vendor and single-vendor Software as a Service and Self Hosted marketplace platform, that allows marketplace owners to create a marketplace where independent vendors can sell their products or services through a single-storefront or multiple storefronts using built-in front-end and back-end CMS for marketplaces. Shuup software contains the same standard eCommerce features as other single-vendor eCommerce platforms, along with the ability for independent vendors to sell using those features and for the Marketplace Owner to manage the marketplace and the vendors. Multi-vendor features include but are not limited to commissions from vendor sales, subscriptions for vendors to sell, individual vendor dashboards where they can manage their products and orders, a marketplace owner dashboard to manage the marketplace and vendors, vendor approval, product approval, payment splitting between vendors and marketplace owner, vendor payouts, vendor shipping capabilities or tools, vendor storefront pages, vendor / customer / marketplace owner messaging and chat, vendor registration and manual adding of vendors, individual vendor analytics, analytics about vendors for marketplace owners, marketplace governance including vendor governance. Not all features are required to use Shuup. Vendors can sell products and services according to the Internal Business Purpose of the marketplace owner including but not limited to physical products, digital goods and downloads, rentals, bookings of products and services, services, and appointments. Vendors can be businesses or consumers themselves.

4 LICENSEE’S INTERNAL BUSINESS PURPOSE OF USING THE SOFTWARE:

This needs to be filled.

5 CURRENT SOFTWARE VERSIONS:

 

Will be provided after the agreement has been signed by all parties and the initial payment from the Licensee has been received by the Licensor.

 

 

EXHIBIT B

3^RD PARTY LIBRARIES USED IN A TYPICAL SHUUP SOFTWARE INSTALLATION

Will be provided after the agreement has been signed by all parties and the initial payment from the Licensee has been received by the Licensor.

 

 

 

 

EXHIBIT C

WIRE TRANSFER PAYMENT INSTRUCTIONS: