Software as a Service Agreement
Date Updated: [November 13, 2020]
This Software as a Service Agreement (“SaaS Agreement”) constitutes a legally binding agreement between the customer agreeing to this Agreement and using the Shuup Services (“Customer”) and Anders Innovations Inc., doing business as “Shuup” (“Shuup”), governing Customer’s use of the Shuup Services. This Agreement is binding and effective as of the date Customer signs this Agreement by signing Exhibit A: Signature Page and Software as a Service Fees with Shuup (“Effective Date”), regardless of whether Customer uses the Shuup Services.
Shuup is a B2B ecommerce Software as a Service (“SaaS”) solution. Shuup licenses its proprietary Shuup Multivendor Ecommerce Marketplace Software (“Multivendor Software”) to domestic and international enterprise clients. Shuup’s Multivendor Software is built for any business looking to allow multiple vendors to sell services or products from a single online marketplace. Shuup brings new marketplace innovations to life and takes existing ecommerce operations to the next level in this fast-growing online economy.
IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT AND ABIDE BY ITS TERMS, CUSTOMER MAY NOT USE OR ACCESS THE SHUUP SERVICES.
PLEASE NOTE: SECTION 15.13, WHICH CONTAINS JURISDICTION-SPECIFIC PROVISIONS, SPECIFIES HOW CUSTOMER AND SHUUP RESOLVE DISPUTES. FOR U.S. USERS, SECTION 15.13 CONTAINS AN ARBITRATION AGREEMENT. THIS ARBITRATION AGREEMENT, WITH LIMITED EXCEPTION, REQUIRES CUSTOMER TO SUBMIT DISPUTES AND CLAIMS CUSTOMER HAS AGAINST SHUUP TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS. PLEASE READ IT CAREFULLY AS IT AFFECTS CUSTOMER’S LEGAL RIGHTS, INCLUDING, IF APPLICABLE, CUSTOMER’S RIGHT TO OPT OUT OF ARBITRATION.
BY ACKNOWLEDGING THE TERMS OF THIS AGREEMENT AND/OR USING THE SHUUP SERVICES, CUSTOMER EXPRESSLY ACKNOWLEDGES THAT CUSTOMER HAS READ, UNDERSTANDS AND AGREES, WITHOUT LIMITATION OR QUALIFICATION, TO BE BOUND BY THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION AGREEMENT) AND CUSTOMER ACCEPTS ALL OF ITS TERMS.
A few highlights of this Agreement include:
- Customer and/or all Authorized Users must be at least the legally required age in the jurisdiction in which Customer reside (18 years old for U.S. based users), and otherwise capable of entering into binding contracts, in order to use or access the Shuup Services (Section 11.3).
- Customer’s agreement that the technology for the Shuup Services is provided “as is” and without warranty (Section 11.4).
- Customer’s agreement that Shuup provides no warranty and has no liability regarding Customer or End User action on the Shuup Services (Section 13.1).
- Customer’s acknowledgment and agreement that Shuup is not a party to any contracts, agreements, or communications with any of Customer’s End Users (Section 11.3(g)).
- Customer’s acknowledgement and agreement that Customer is solely responsible for the operation of its business and proper use of the Services (Sections 11.3(h) and 13.1).
- Customer’s agreement to hold harmless and indemnify Shuup from claims due to Customer’s use or inability to use the Shuup Services or content submitted from Customer to the Shuup Services (Sections 12 and 13).
- For U.S. Users, Customer’s agreement to arbitrate disputes with Shuup on an individual basis to the fullest extent permitted by applicable law (Section 15.13).
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Additional Terms” means the terms contained in any Exhibit referenced herein, provided by Shuup to Customer, and agreed upon by Shuup and Customer. All Additional Terms agreed upon by Shuup and Customer are incorporated herein entirely.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
“Agreement” has the meaning set forth in the preamble.
“Authorized Users” means Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.
“Availability Requirement” has the meaning set forth in Section 5.1.
“Available” has the meaning set forth in Section 5.1.
“Backup Policy” has the meaning set forth in Section 6.
“Confidential Information” has the meaning set forth in Section 9.1.
“Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data, or content by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
“Customer Failure” has the meaning set forth in Section 4.2.
“Customer Indemnitee” has the meaning set forth in Section 12.1.
“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
“Disclosing Party” has the meaning set forth in Section 9.1.
“Documentation” means any manuals, instructions, or other documents or materials that Shuup provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Shuup Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“Effective Date” has the meaning set forth in the preamble.
“Fees” has the meaning set forth in Section 8.1.
“Force Majeure Event” has the meaning set forth in Section 15.9.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or Shuup Systems as intended by this Agreement. Harmful Code does not include any Shuup Disabling Device.
“Indemnitee” has the meaning set forth in Section 12.3.
“Indemnitor” has the meaning set forth in Section 12.3.
“Initial Term” has the meaning set forth in Section 14.1.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance Shuups.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Personal Information” means information that Customer provides or for which Customer provides access to Shuup, or information which Shuup creates or obtains on behalf of Customer, in accordance with this Agreement that: (i) directly or indirectly identifies an individual (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health, or health insurance data, answers to security questions, and other personal identifiers), in case of both subclauses (i) and (ii), including Sensitive Personal Information as defined herein). Customer’s business contact information is not by itself Personal Information.
“Process” means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
“Shuup” means Anders Inc, a Delaware Corporation.
“Shuup Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Shuup or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Shuup or its designee.
“Shuup Indemnitee” has the meaning set forth in Section 12.2.
“Shuup Materials” means the Services, Specifications, Documentation, and Shuup Systems and any and all other information, data, source code and modifications thereto including source code provided by Shuup’s organization in Github (https://github.com/shuup/), documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Shuup or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Shuup Systems. For the avoidance of doubt, Shuup Materials include Resultant Data and any information, data, or other content derived from Shuup’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
“Shuup Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of Shuup or any Subcontractor.
“Shuup Systems” means the information technology infrastructure used by or on behalf of Shuup in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Shuup or through the use of third-party services.
“Receiving Party” has the meaning set forth in Section 9.1.
“Renewal Term” has the meaning set forth in Section 14.2.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
“Resultant Data” means data and information related to Customer’s use of the Services that is used by Shuup in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Scheduled Downtime” has the meaning set forth in the Shuup Support Policy.
“Sensitive Personal Information” means an individual’s (i) government-issued identification number, including Social Security number, driver’s license number, or state-issued identification number; (ii) financial account number, credit report information, or credit, debit, or other payment cardholder information, with or without any required security or access code, personal identification number, or password that permits access to the individual’s financial account; or (iii) biometric, genetic, health, or health insurance data.
“Service Level Failure” has the meaning set forth in the Shuup Support Policy.
“Service Period” has the meaning set forth in the Shuup Support Policy.
“Service” or “Services” means the SaaS offering provided by Shuup.
“Specifications” means the specifications for the Services set forth in a Specifications Schedule mutually agreed upon by Customer and Shuup. Any Specifications Schedule shall be retained in Customer’s account.
“Subcontractor” has the meaning set forth in Section 2.7.
“Support Services” has the meaning set forth in the Shuup Support Policy.
“Term” has the meaning set forth in Section 14.2.
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Shuup.
2.1 Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Shuup hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 15.8) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. Shuup shall provide to Customer the Access Credentials within a reasonable time following the Effective Date.
2.2 Documentation License. Shuup hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 15.8) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
2.3 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
(a) Shuup has and will retain sole control over the operation, provision, maintenance, and management of the Shuup Materials; and
(b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Shuup Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or Shuup; (ii) results obtained from any use of the Services or Shuup Materials; and (iii) conclusions, decisions, or actions based on such use.
Notwithstanding anything to the contrary in this Agreement, all Services, including all Processing of Customer Data by or on behalf of Shuup shall be provided solely from within, and on computers, systems, networks, and other infrastructure located in, the United States.
2.4 Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Shuup Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Shuup Materials, and the Third-Party Materials are and will remain with Shuup and the respective rights holders in the Third-Party Materials.
2.5 Service Management. Customer shall, throughout the Term, maintain within its organization a service manager (“Service Manager”) to serve as Customer’s primary point of contact for day-to-day communications, consultation, and decision-making regarding this Agreement. Customer’s Service Manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Customer shall ensure its Service Manager has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. Customer shall use commercially reasonable efforts to maintain the same Service Manager in place throughout the Term. If Customer’s Service Manager ceases to be employed by Customer or Customer otherwise wishes to replace its Service Manager, Customer shall promptly name a new service manager by written notice to the Shuup.
2.6 Changes. Shuup reserves the right, in its sole discretion, to make any changes to the Services and Shuup Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Shuup’s services to its customers; (ii) the competitive strength of or market for Shuup’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services. Change requests for the Services must be sent from Customer to the Service Manager responsible for the Customer’s account. The Service Manager will then specify the change protocols and the parties shall evaluate and, if agreed, implement all such requested changes in accordance with the change procedure set forth by Shuup. No requested changes will be effective unless and until memorialized in a written change order signed by both parties.
2.7 Subcontractors. Shuup may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”).
2.8 Suspension or Termination of Services. Shuup may, directly or indirectly, and by use of a Shuup Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Shuup Materials, without incurring any resulting obligation or liability, if: (a) Shuup receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Shuup to do so; or (b) Shuup believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section 2.8 does not limit any of Shuup’s other rights or remedies, whether at law, in equity, or under this Agreement.
2.9 Authorized Users. Only Customer’s owners, managers, officers, employees, agents, and independent contractors are authorized to use the Services on behalf of Customer. Authorized Users may only use the Services in the ordinary course of Customer’s business. It shall be a material breach in the event that Customer allows a non-Authorized User to access and/or use the Services, and Customer shall be responsible for any data breaches or security incidents that arise from any non-authorized user’s use of the Services or access to Customer’s account. Customer shall indemnify and hold harmless Shuup for any and all claims, damages, costs, or liability (collectively, “Claims”), including attorneys’ fees, arising out of or related to any non-authorized user’s use of the Service or Customer’s account, including any Claims arising out of a security incident or data breach.
2.10 Vendor Accounts. Customer may allow third party vendors or sellers (“End Users” or “Vendors”) to use the Service to create marketplaces or online stores for the purpose of offering and selling products and services. Customer shall ensure each End User reviews, understands, and agrees to SaaS Agreement.
3. Use Restrictions; Service Usage and Data Storage.
3.1 Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Shuup Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
(a) copy, modify, or create derivative works or improvements of the Services or Shuup Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Shuup Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Shuup Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or Shuup Materials or access or use the Services or Shuup Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit, or otherwise provide to or through the Services or Shuup Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Shuup Systems, or Shuup’s provision of services to any third party, in whole or in part;
(g) 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 Services or Shuup Materials, including any copy thereof;
(h) access or use the Services 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 Shuup customer), or that violates any applicable Law;
(i) access or use the Services or Shuup Materials for purposes of competitive analysis of the Services or Shuup Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Shuup’s detriment or commercial disadvantage; or
(j) access or use the Services 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 Services could lead to personal injury or severe physical or property damage; or
(k) otherwise access or use the Services or Shuup Materials beyond the scope of the authorization granted under this Section 3.1.
4. Customer Obligations.
4.1 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Shuup Personnel with such access to Customer’s premises and Customer Systems as is necessary for Shuup to perform the Services in accordance with the Availability Requirement and Specifications; and (c) provide all cooperation and assistance as Shuup may reasonably request to enable Shuup to exercise its rights and perform its obligations under and in connection with this Agreement.
4.2 Effect of Customer Failure or Delay. Shuup is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).
4.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.1, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Shuup Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Shuup of any such actual or threatened activity.
4.4 Non-Solicitation. During the Term and for one year after, Customer 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 Shuup or any Subcontractor and involved in any respect with the Services or the performance of this Agreement. In the event of a violation of this Section 4.4, Shuup will be entitled to liquidated damages equal to the compensation paid by Shuup to the applicable employee or contractor during the prior 12 months.
5. Shuup Support Services.
The Services include Shuup’s standard customer support services (“Support Services”) pursuant to the Shuup Support Policy in effect from time to time and which is located at https://www.shuup.com/legal/support-policy (the “Support Policy”). Shuup may amend the Support Policy from time to time in its sole discretion. Customer may purchase enhanced support services separately at Shuup’s then current rates, as set in Shuup’s sole discretion.
6. Data Backup.
The Shuup Systems are programmed to perform routine data backups as set out in Shuup’s Backup Policy And Protocols in effect from time to time, a current version of which is located at https://www.shuup.com/legal/backup-policy (the “Backup Policy”). Shuup will deliver to Customer its then most current back-ups of Customer Data as and when set forth in the Backup Policy. In the event of any loss, destruction, damage, or corruption of Customer Data caused by the Shuup Systems or Services, Shuup will, as its sole obligation and liability and as Customer’s sole remedy, use commercially reasonable efforts to restore the Customer Data from Shuup’s then most current backup of such Customer Data in accordance with the then current Backup Policy.
7.1 Information Security. Shuup will employ security measures in accordance with Shuup’s Data Security Protocols and Policy as amended from time to time, located at https://www.shuup.com/legal/data-security-protocols-and-policy.
7.2 Data Breach Procedures. Shuup maintains a data breach plan in accordance with the criteria set forth in the Data Security Protocols and Policy, located at https://www.shuup.com/legal/data-security-protocols-and-policy and shall implement the procedures required under such data breach plan on the occurrence of a data breach (as defined in such plan).
7.3 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Shuup Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
7.4 Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.
8. Fees and Payment.
8.1 Fees. Customer shall pay Shuup the fees set forth in Shuup’s Fees and Payments Policy (“Fees”), located at https://www.shuup.com/legal/shuup-fees-and-payments-policy as amended from time to time.
8.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer 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 Customer hereunder, other than any taxes imposed on Shuup’s income.
8.3 Payment. Customer shall pay all Fees pursuant to the Shuup Fees and Payments Policy located at https://www.shuup.com/legal/shuup-fees-and-payments-policy.
9.1 Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 9.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, code, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations. Without limiting the foregoing: all Shuup Materials are the Confidential Information of Shuup and the financial terms and existence of this Agreement are the Confidential Information of each of the parties.
9.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
9.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for three (3) years from the termination of this Agreement:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to its compliance with Section 9.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 9.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9;
(c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; and
(d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and
(e) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 9.
(f) Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 9 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
9.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 9.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s outside legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
10. Intellectual Property Rights.
10.1 Shuup Materials. All right, title, and interest in and to the Shuup Materials,, and including all Intellectual Property Rights therein, are and will remain with Shuup. Customer has no right, license, or authorization with respect to any of the Shuup Materials except as expressly set forth in Section 2.1, in each case subject to Section 3.1. All other rights in and to the Shuup Materials are expressly reserved by Shuup. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Shuup an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
10.2 Customer Data. As between Customer and Shuup, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 10.3.
10.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Shuup, its Subcontractors, and the Shuup Personnel to enforce this Agreement and exercise Shuup’s, its Subcontractors’, and the Shuup Personnel’s rights and perform Shuup’s, its Subcontractors’, and the Shuup Personnel’s obligations hereunder.
10.4 Further Assurances. In addition to its other obligations in this Section 10, Customer shall at all times do, execute, acknowledge and deliver or cause to be done, executed, acknowledged or delivered all such further acts, deeds, transfers, assignments, licenses, agreements and assurances as Shuup may reasonably require in order to give effect to the provisions of this Agreement and for the granting, transferring, assigning, setting over, assuring and confirming the transfer of the Derivative Work to Shuup.
11. Representations and Warranties.
11.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
11.2 Additional Shuup Representations, Warranties, and Covenants. Shuup represents, warrants, and covenants to Customer that Shuup will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
11.3 Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Shuup:
(a) That Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Shuup and Processed in accordance with this Agreement,
(b) Customer has not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
(c) When using the Shuup Services, Customer (or Customer’s Authorized Users on behalf of Customer) is operating as a sole proprietor, partnership, limited liability company, limited liability partnership, corporation or other business entity;
(d) Customer has any and all insurance required to operate Customer’s business and provide Customer’s services;
(e) Customer will honor Customer commitments to End Users on of the Shuup Services, including by responding to inquiries promptly and providing timely, high-quality services to Customer’s End Users;
(f) If Customer is an individual, Customer is at least of the legally required age in the jurisdiction in which Customer resides (18 years of age or older for U.S. based users), and are otherwise capable of entering into binding contracts;
(g) Customer understands and agrees that Shuup is not a party to any contracts, agreements, or communications with any of Customer’s End Users; and
(h) Customer is solely responsible for the operation of its business and proper use of the Services.
11.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1 AND SECTION 11.2, ALL SERVICES AND SHUUP MATERIALS ARE PROVIDED “AS IS.” SHUUP SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, SHUUP MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR SHUUP MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
11.5 Third Party Sites. The Services may contain links to third party sites. When Customer accesses third party sites, Customer does so at its own risk. Shuup does not control and is not liable for those sites and what those third parties do.
12.1 Shuup Indemnification. Shuup shall indemnify, defend, and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by Customer Indemnitee resulting from any Action by a third party (other than an Affiliate of a Customer Indemnitee) that Customer’s or an Authorized User’s use of the Services (excluding Customer Data and Third-Party Materials) in accordance with this Agreement (including the Specifications) infringes or misappropriates such third party’s US Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
(a) Third-Party Materials or Customer Data;
(b) access to or use of the Shuup Materials in combination with any hardware, system, software, network, or other materials or service not provided by Shuup or specified for Customer’s use in the Documentation, unless otherwise expressly permitted by Shuup in writing;
(c) modification of the Shuup Materials other than: (i) by or on behalf of Shuup; or (ii) with Shuup’s written approval in accordance with Shuup’s written specification;
(d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Shuup; or
(e) act, omission, or other matter described in Section 12.2(a), Section 12.2(b), Section 12.2(c), or Section 12.2(d), whether or not the same results in any Action against or Losses by any Shuup Indemnitee.
12.2 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Shuup and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Shuup Indemnitee”) from and against any and all Losses incurred by such Shuup Indemnitee resulting from any Action by a third party (other than an Affiliate of a Shuup Indemnitee) to the extent that such Losses arise out of or result from, or are alleged to arise out of or result from:
(a) Customer Data, including any Processing of Customer Data by or on behalf of Shuup in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Shuup’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Shuup;
(c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
(d) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
12.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.1 or Section 12.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section 12, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
12.4 Mitigation. If any of the Services or Shuup Materials are, or in Shuup’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Shuup Materials is enjoined or threatened to be enjoined, Shuup may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services and Shuup Materials materially as contemplated by this Agreement;
(b) modify or replace the Services and Shuup Materials, in whole or in part, to seek to make the Services and Shuup Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Shuup Materials, as applicable, under this Agreement; or
(c) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and Shuup Materials, and require Customer to immediately cease any use of the Services and Shuup Materials or any specified part or feature thereof.
12.5 Sole Remedy. THIS SECTION 12 SETS FORTH CUSTOMER’S SOLE REMEDIES AND SHUUP’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND SHUUP MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
- Limitations of Liability.
13.1 No Liability. Customer acknowledges and agrees that Shuup is not, in any way, responsible for any obligations owed to End Users or customers of Customer. Customer further acknowledges and agrees that Shuup is only willing to provide the Shuup Services if Customer agrees to certain limitations of Shuup’s liability to Customer and third parties, including End Users. Therefore, Customer agrees not to hold Shuup or its affiliates, or their corporate partners, liable for any claims, demands, damages, expenses, losses, governmental obligations, suits, and/or controversies of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, direct, indirect, incidental, actual, consequential, economic, special, or exemplary, including attorneys fees and costs (collectively, “Liabilities”) that have arisen or may arise, relating to Customer’s or any other party’s,, including End Users, use of or inability to use the Shuup Services, including without limitation any Liabilities arising in connection with the conduct, act or omission of any End User, including product liability or warranty claims, any dispute with any End User, any instruction, advice, act, or service provided by Shuup and its affiliates, and any destruction of Customer Data.
13.2 EXCLUSION OF DAMAGES. IN NO EVENT WILL SHUUP OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO SUPPORT POLICY; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13.3 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF SHUUP AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED ONE TIMES THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO SHUUP UNDER THIS AGREEMENT IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14. Term and Termination.
14.1 Initial Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreement’s express provisions, will continue in effect until one (1) year from such date (the “Initial Term”).
14.2 Renewal Term. This Agreement will automatically renew for up to five (5) additional successive one (1) year terms unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”).
14.3 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Shuup may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Shuup’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.1, Section 7.3, Section 9, or Section 10;
(b) either party may terminate this Agreement upon ninety (90) days’ written notice to the other party; and
(c) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
14.4 Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Shuup shall immediately cease all use of any Customer Data or Customer’s Confidential Information and (i) promptly return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer’s Confidential Information; and (ii) permanently erase all Customer Data and Customer’s Confidential Information from all systems Shuup directly or indirectly controls, provided that, for clarity, Shuup’s obligations under this Section 14.4(b) do not apply to any Resultant Data;
(c) Customer shall immediately cease all use of any Services or Shuup Materials and (i) promptly return to Shuup, or at Shuup’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Shuup Materials or Shuup’s Confidential Information; and (ii) permanently erase all Shuup Materials and Shuup’s Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to Shuup in a signed written instrument that it has complied with the requirements of this Section 14.4(c);
(d) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information; and (ii) Shuup may retain Customer Data; and in the case of each of subclause (i), and (ii) in its then current state and solely to the extent and for so long as required by applicable Law; (iv) Shuup may also retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in this Section 14.4(d) will remain subject to all confidentiality, security, and other applicable requirements of this Agreement;
(e) Shuup may disable all Customer and Authorized User access to the Shuup Materials;
(f) if Customer terminates this Agreement pursuant to Section 14.3(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Shuup will: (i) refund to Customer Fees paid in advance for Services that Shuup has not performed as of the effective date of termination; and (ii) pay to Customer any unpaid Service Credits to which Customer is entitled;
(g) if Shuup terminates this Agreement pursuant to Section 14.3(a) or Section 14.3(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of Shuup’s invoice therefor; and
(h) if Customer requests in writing at least seven (7) days prior to the effective date of expiration or termination, subject to Section 14.4(d), Shuup shall, within thirty (30) days following such expiration or termination, deliver to Customer the then most recent version of Customer Data maintained by Shuup, provided that Customer has at that time paid all Fees then outstanding and any amounts payable after or as a result of such expiration or termination, including any expenses and fees, on a time and materials basis, for Shuup’s services in transferring such Customer Data.
14.5 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.1, Section 9, Section 10, Section 11.4, Section 12, Section 13, Section 14.4, this Section 14.5, and Section 15.
15.1 Further Assurances. On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
15.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
15.3 Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Shuup may, without Customer’s consent, include Customer’s name and other indicia in its lists of Shuup’s current or former customers of Shuup in promotional and marketing materials.
15.4 Notices. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party at the address specified in an executed signature page to this Agreement or at such other address or such other person that such party may designate from time to time in accordance with this Section 15.4.
Notices sent in accordance with this Section 15.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
15.5 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
15.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
15.7 Entire Agreement. This Agreement, together with the Exhibits provided to Customer, which shall be incorporated herein in their entirety when executed by the parties, and any other documents incorporated herein by reference, 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, 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, schedules, attachments, and appendices (other than an exception expressly set forth as such therein) and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its exhibits, schedules, attachments, and appendices; (b) second, the exhibits, schedules, attachments, and appendices to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
15.8 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Shuup’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Shuup’s prior written consent is required. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 15.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
15.9 Force Majeure.
(a) No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of 30 days or more.
(b) Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Shuup shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
15.10 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
15.11 Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, 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; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
15.12 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall 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, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15.13 Dispute Resolution.
(a) Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of California 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 California.
(b) Arbitration. THE PARTIES TO THIS AGREEMENT WILL SUBMIT ALL DISPUTES ARISING UNDER THIS AGREEMENT TO ARBITRATION IN LOS ANGELES, CALIFORNIA BEFORE A SINGLE ARBITRATOR OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). THE ARBITRATOR SHALL BE SELECTED BY APPLICATION OF THE RULES OF THE AAA, OR BY MUTUAL AGREEMENT OF THE PARTIES, EXCEPT THAT SUCH ARBITRATOR SHALL BE AN ATTORNEY ADMITTED TO PRACTICE LAW IN CALIFORNIA. NO PARTY TO THIS AGREEMENT WILL CHALLENGE THE JURISDICTION OR VENUE PROVISIONS AS PROVIDED IN THIS SECTION. NO PARTY TO THIS AGREEMENT WILL CHALLENGE THE JURISDICTION OR VENUE PROVISIONS AS PROVIDED IN THIS SECTION.
(c) Equitable Remedies. CUSTOMER FURTHER AGREES THAT IT WOULD BE IMPOSSIBLE OR INADEQUATE TO MEASURE AND CALCULATE SHUUP’S DAMAGES FROM ANY BREACH OF THE COVENANTS SET FORTH IN SECTIONS 3, 4.4, 9 AND 10 HEREIN. ACCORDINGLY, CUSTOMER AGREES THAT IF CUSTOMER BREACHES ANY OF SUCH SECTIONS, SHUUP WILL HAVE AVAILABLE, IN ADDITION TO ANY OTHER RIGHT OR REMEDY AVAILABLE, THE RIGHT TO OBTAIN AN INJUNCTION FROM A COURT OF COMPETENT JURISDICTION RESTRAINING SUCH BREACH OR THREATENED BREACH AND TO SPECIFIC PERFORMANCE OF ANY SUCH PROVISION OF THIS AGREEMENT. CUSTOMER FURTHER AGREES THAT NO BOND OR OTHER SECURITY SHALL BE REQUIRED IN OBTAINING SUCH EQUITABLE RELIEF AND CUSTOMER HEREBY CONSENTS TO THE ISSUANCE OF SUCH INJUNCTION AND TO THE ORDERING OF SPECIFIC PERFORMANCE.
15.14 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
15.15 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
15.16 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.