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CHANNELAPE, INC.

TERMS OF SERVICE

These Terms of Service (the “Terms”) are effective upon execution of an Order Form attached to or referencing these Terms (each, a “Order Form” and together with these Terms, the “Agreement”), by and between ChannelApe, Inc. (“ChannelApe”) and the party named as Customer in the Order Form. The Agreement governs the provision by ChannelApe to the Customer of access to the Service described on the Order Form, as it may be updated from time to time in ChannelApe’s sole discretion (the “Service”). The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior communications and agreements, and supersedes any web terms posted on the Service.

  1. ChannelApe Service.
    1. Order Forms. ChannelApe and Customer may enter into one or more Order Forms, pursuant to which Customer may purchase a subscription for the term set forth therein (each, a “Subscription Term”) to access and use the Service described therein. Each Order Form is subject to the terms of, and incorporated into this Agreement, upon mutual execution by Customer and ChannelApe.
    2. Access to the Service. During each Subscription Term, and subject to Customer’s compliance with the terms of this Agreement, ChannelApe shall provide Customer with non-exclusive access to the Service and outputs therefrom and grants Customer the right to access and use the Service solely for its own business purposes, during such Subscription Term. Access to the Service is subject to the limitations described in the Order Form with respect to maximum number of analytics Users, maximum number of SKU’s and maximum number of orders per month, which may be placed on or conducted on the Service.
    3. Users. Customer will (i) ensure that each user that Customer invites to access its account on the service (a “User”) maintain the confidentiality of their log-in credentials and (ii) be responsible for Users’ compliance with this Agreement.
    4. Professional Services. ChannelApe and Customer may additionally agree upon the provision by ChannelApe of professional services relating to the implementation or other support of Customer’s use of the Service, as set forth in an Order Form or Statement of Work referencing this Agreement (“Professional Services”).
  2. Billing and Payments.
    1. Pricing Structure. The pricing model for the Service has the following components: (i) a per user monthly subscription fee (the “Subscription Fee”); and (ii) fees for Professional Services (“Professional Service Fees” and together with License Fees, “Fees”). Fees charged are as-described on the applicable Order Form and are not refundable.
    2. Modifying Your Subscription. If you choose to upgrade your plan, any incremental cost will be prorated over the remainder of the then-current Subscription Term, payable upon the date of such change. There are no refunds or credits for plan downgrades.
    3. Late Charges. Late payments are subject to interest charges of 1% per month, or if lower, the maximum amount allowed by law.
    4. Taxes. Customer is solely responsible for payment of any taxes resulting from the use of the Service. If any such taxes are required to be withheld, Customer shall pay an amount to ChannelApe such that the net amount payable to ChannelApe after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement.
    5. Billing Disputes. Customer agrees that it shall notify ChannelApe within 60 days of receipt of an invoice from ChannelApe if it intends to dispute the amounts owed under such invoice, and that after 60 days all undisputed invoices will be deemed to have been accepted.
  3. ChannelApe Intellectual Property Rights & Restrictions. ChannelApe shall retain all intellectual property rights in the Service and outputs therefrom, including any and all derivatives, changes and improvements thereto. Customer agrees that it obtains no intellectual property rights or licenses by this Agreement except those expressly granted herein. Customer hereby grants ChannelApe a non exclusive, perpetual, irrevocable, royalty-free license to any ideas, suggestions, feedback, or service improvements given by Customer pertaining to the Service. Customer shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Service; (ii) not represent that it possesses any proprietary interest in the Service; (iii) not directly or indirectly, take any action to contest ChannelApe's intellectual property rights or infringe them in any way; and (iv) except as specifically permitted hereunder, not use the name, trademarks, trade-names, and logos of ChannelApe.
  4. Customer Content.
    1. Ownership. All data, information, files or other materials and content that Customer makes available to ChannelApe for the purpose of utilizing the Service (“Customer Content”) shall remain the sole property of Customer.
    2. License to ChannelApe. Customer hereby grants ChannelApe a worldwide, non-exclusive, royalty-free, license to use, copy, reproduce, distribute, prepare derivative works of, display and perform any and all Customer Content, to the extent required to perform the Service.
    3. Aggregate Anonymized Data. Customer hereby grants to ChannelApe a worldwide, non-exclusive, royalty-free, license to use, copy, reproduce, distribute, prepare derivative works of, display and perform any and all Customer Data in an anonymized and aggregated form (“Aggregate Anonymized Data”) for any purpose, including incorporation of insights derived therefrom into its products and services, provided that no such use of the insights and analytics from the Aggregate Anonymized Data identifies the Customer or any of its Users in any manner.
    4. EU Privacy Laws. Customer agrees that it will not transfer to ChannelApe any Customer Data that contains personal data of a person subject to the European Union General Data Protection Regulation without first entering into a mutually agreeable data processing agreement with ChannelApe.
  5. Confidentiality.
    1. Nondisclosure. Each party (each a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes and shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a need to know and who are bound by obligations of confidentiality and non­use at least as protective of such information as this Agreement and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure. “Confidential Information” means all information of a party disclosed to the other party, regardless of the form of disclosure, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation and without the need to designate as confidential, the terms and conditions of this Agreement.
    2. Exceptions. Notwithstanding anything to the contrary herein, neither party shall be liable for using or disclosing information that such party can prove: (i) was publicly known at the time it was disclosed or has become publicly known through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement.
  6. Representations and Warranties.
    1. Warranties. Each party represents and warrants that (a) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with the terms of this Agreement, and (b) its execution and delivery of this Agreement and its performance hereunder will not violate any applicable law, rule or regulation. Customer additionally represents and warrants that the Customer Content does not infringe upon any third party's proprietary rights, including intellectual property rights.
    2. Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, CHANNELAPE PROVIDES THE USE OF THE SERVICE TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NONINFRINGEMENT WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CHANNELAPE DOES NOT WARRANT THAT (I) THE SERVICE OR ANY SERVICES RELATED THERETO WILL BE DELIVERED OR PERFORMED WITHOUT MISTAKE OR INTERRUPTION OR (II) THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR BUSINESS RESULTS BY USE OF THE SERVICE.
  7. Indemnification.
    1. Customer's Indemnities. Customer shall defend, indemnify and hold harmless ChannelApe and its officers, directors, consultants, employees, successors and permitted assigns, from and against any third party claim, suit or proceeding and all resulting damages, costs, losses, awards and reasonable attorneys’ fees (collectively, a “Claim”), arising out of or relating to (a) the use or display of any Customer Content; (b) Customer's breach of its warranties under Section 6.1 of this Agreement; or (c) Customer’s use of the Service in any manner that violates this Agreement or applicable laws, rules or regulations.
    2. ChannelApe's Indemnities. ChannelApe shall defend, indemnify and hold harmless Customer and its officers, directors, consultants, employees, successors and permitted assigns, from and against any Claim arising out of or relating to an allegation that the Service infringes any intellectual property right of a third party.
    3. Indemnification Procedure. The indemnified party shall provide the indemnifying party with: (a) prompt written notice of such Claim; (b) sole control over the defense and settlement of such Claim; and (c) information as may be reasonably requested by the indemnifying party. The indemnified party will have the right to approve the counsel selected by the indemnifying party for defense of any such claim, which approval will not be unreasonably withheld. The indemnifying party shall not settle any such Claim in a manner that does not unconditionally release the indemnified party without the indemnified party’s written consent.
  8. Limitation of Liability.
    1. EXCLUSION OF DAMAGES. IN NO EVENT WILL CHANNELAPE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT CHANNELAPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. MAXIMUM AGGREGATE LIABILITY. CHANNELAPE’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO CHANNELAPE DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE LIABILITY FIRST ARISES.
    3. ACKNOWLEDGEMENT. THE LIABILITIES LIMITED BY SECTIONS 8.1 AND 8.2 APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF CHANNELAPE IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 8, ChannelApe’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE BY SUCH LAW.
  9. Term; Termination.
    1. Term. This Agreement shall commence on the Effective Date and shall remain in effect for so long as there is a valid Order Form in effect or until terminated as provided herein (the “Term”). Unless otherwise specified in the Order Form, each Order Form will automatically renew for successive 12 month terms unless notice of non-renewal is given by either party at least 30 days prior to the end of the then-current Subscription Term.
    2. Termination for Cause. Either party may terminate this Agreement (i) for the other party’s material breach, if the breaching party does not cure such breach within 30 days after receipt of written notice specifying in detail the nature of the breach, effective upon the expiration of such 30 day period, or (ii) upon notice if the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
    3. Effect of Termination. Upon termination or expiration of this Agreement, Customer will immediately cease use of the Service and this Agreement shall terminate and be of no further force or effect, provided that the following provisions shall survive any expiration or termination of this Agreement: (i) the obligation of Customer to pay fees incurred prior to termination; (ii) Section 3 (ChannelApe Intellectual Property Rights & Restrictions), (iii) Section 5 (Confidentiality); Section 6.2 (Disclaimer of Warranties); Section 7 (Indemnification); Section 8 (Limitation of Liability); and Section 10 (Miscellaneous).
  10. Miscellaneous.
    1. Amendments. These terms may be amended by ChannelApe from time to time in its sole discretion. In the event of such an amendment, ChannelApe will notify Customer of such update via email and provide Customer 30 days to object to such amendment. If Customer does not object within such period, the amended terms will be effective with respect to Customer upon the end thereof. If Customer does object, the terms in effect immediately prior to such amendment will remain in effect until the end of the then-current Subscription Term, and the amended terms will go into effect upon the beginning of the next Subscription Term, if the Agreement is not terminated prior to such renewal.
    2. Governing law. This Agreement is governed by the laws of the State of Delaware, without regard to its conflict of laws principles, and any dispute arising from this Agreement shall be brought exclusively before the state and federal courts in Delaware, and each party irrevocably submits to the jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
    3. Assignment. Neither party may transfer or assign its rights or obligations under this Agreement to any third party without the prior written approval of the other party, except for an assignment to an affiliated company or to a successor in connection with a merger, acquisition, reorganization or sale of substantially all of its assets or voting securities. Any purported assignment contrary to this section shall be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
    4. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when sent by email.
    5. Relationship of Parties. The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
    6. Severability. If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.
    7. Force Majeure. Except for payment obligations under this Agreement, neither party hereto shall be liable for any loss, damage, or penalty resulting from such party's failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, or labor strikes.
    8. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
    9. Publicity. Either party may issue publicity or general marketing communications concerning its involvement with the other party, subject to such other party’s prior written/verbal approval, which shall not be unreasonably withheld or denied; provided, that Customer hereby approves the display by ChannelApe of Customer’s name and logo on its website and in marketing materials, subject to Customer’s right to revoke such approval upon written notice to ChannelApe.

Last Updated: August 9, 2019