BY EXECUTING AN ORDER FORM WITH CHORD (AS DEFINED BELOW) (THE“ORDER”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS TERMS OF SERVICE (TOGETHER WITH THE ORDER AND OUR DATA PROCESSING ADDENDUM,THIS “AGREEMENT”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OFA COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TOBIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER”WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USETHE SERVICES SET FORTH IN THE ORDER (THE “SERVICES”).
This Agreement, by and between the customer set forth in theOrder (“Customer”) and Chord Commerce, Inc. (“Chord”), is effective as of the Order Effective Date (as defined in the Order) and governsCustomer’s use of the Services.
Section 1: Services
1.1. Chord Plan
The Services provided to Customer may include the features for the Stores as identified in the Order. Chord will have the right from time to time to make updates to the Services, including by modifying or removing one or more of the features listed. Any such updates will be of general applicability to Chord’s customers. If Chord removes or makes a material change to the features listed above, Chord will notify Customer. Such notice may be provided via email or by posting notice in the administrative console for the Services.
1.2. Additional Professional Services Provided by Chord
(a) From time to time, Chord and Customer may enter into statements of work pursuant to which Customer will engage Chord to perform professional services, each of which will be executed by an authorized representative of each party and will reference and be governed by this Agreement (each, a “SOW”). Each SOW will set forth the professional services to be performed by Chord, including, without limitation, professional services related to product implementation (the “Professional Services”),and the fees payable by Customer to Chord in connection therewith. Each SOW will also include the period of time that such SOW will remain in effect (subject to earlier termination as set forth therein), and the applicable payment terms.
(b) Customer understands that Chord's performance of the Professional Services is dependent in part on Customer’s actions. Accordingly, Customer will provide Chord with the necessary items and assistance specified in the applicable SOW in a timely manner. Any dates or time periods relevant to performance by Chord hereunder shall be appropriately and equitably extended to account for any delays or change in assumptions due toCustomer. If a Customer delay or change would materially change the economics of Chord's performance or materially extends the time for performance, Chord may terminate the applicable SOW upon thirty (30) days’ written notice, unless within the notice period the parties agree on mutually acceptable changes to this Agreement or the applicable SOW.
(c) Upon the receipt of a proposal fromCustomer to change the terms of an SOW (a “Change Proposal”), Chord will promptly provide (i) an impact analysis of such Change Proposal and (ii) its financial impact (if any) and, upon mutual agreement, it shall be signed by the parties in the form of a mutually agreed written amendment to an SOW. The parties agree that material changes to anSOW shall require a new SOW.
Customer is solely responsible for hosting and setting up the storefront of Customer’s website(s) located at the URL(s)identified on the Order (as such list may be amended from time to time by the parties, the “Stores”). Chord is not responsible or liable for the Stores, or any services or technology related thereto, except for the Services specifically identified in the Order.
Section 2: Customer Obligations
2.1. Use of the Service
(a) The Customer will access and use the Services solely in accordance with this Agreement and in connection with theStores. Customer will be solely responsible for all content, such as photos, images, videos, graphics, written content, audio files and code, and any trademarks and logos featured thereon, that Customer makes available to Chord or otherwise displays or distributes on or in connection with the Stores (the “Customer Materials”).
(b) The Customer shall have access to their ownCustomer Data and shall be responsible for all changes to and/or deletions ofCustomer Data and the security of all passwords and other account information required in order to access and use the Services. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data and the means by which Customer acquiredCustomer Data, and for the adequate security and protection of Customer's Data.
(b) Customer is solely responsible for all of the terms and conditions of the transactions conducted on or through theStores, including, without limitation, returns, warranties, shipping, handling, transportation, storage, insurance, fees, applicable taxes, title and licenses, all of which must be in accordance with applicable law.
It is Customer’s responsibility to: (i) determine what, if any, taxes apply to transactions occurring via the Stores; and (ii) collect, report and remit the correct tax to the appropriate tax authorities. Chord is not responsible for determining whether taxes apply to a transaction, or for collecting, reporting, or remitting any taxes arising from any transaction.Chord may from time to time make available to Customer certain tax calculation services offered by third party providers.
2.4. Backup and Storage
(a) General. Customer is responsible for storing and maintaining backups of the Customer Data, including but not limited to customer management, inventory, product listings, sales, order and payment tracking data, financial data, reports and numeric results.
(b) Customer DataPlatform. If Customer subscribes for the Customer Data Platform under the Order, Customer will be required to create a free account with Chord’s third party service provider, Segment.io, Inc. (“Segment”),at https://app.segment.com/signup and agree to Segment’s terms of service (the “SegmentTerms of Service”). Customer’s access and use of the Customer Data Platform will be solely governed by the Segment Terms of Service, and Chord will have no liability with respect thereto. Notwithstanding the selection of a “free account” under the SegmentTerms of Service, Customer will pay to Chord the amounts set forth in the Order with respect to its use of the Customer Data Platform.
(a) General. In exchange for the Services and the rights granted pursuant to this Agreement,Customer will pay to Chord the fees as set forth in the Order and herein (the “ServiceFees”), in accordance with the terms and conditions set forth in the Order and herein. In exchange for the Professional Services to be performed under anySOW, if applicable, Customer will pay to Chord the fees set forth in such SOWin accordance with the terms and conditions set forth in such SOW and herein(the “Professional Services Fees”). In addition, Customer will reimburse Chord for its travel and accommodation expenses incurred in connection with the performance of theProfessional Services, unless otherwise set forth in the applicable SOW.
(b) Service Fees. Unless otherwise set forth in theOrder, the Services Fees will include (i) a fixed fee (the “Fixed Fee”)and (ii) a fee equal to the GMV (as defined below) multiplied by the percentage set forth in the Order (the “Variable Fee”). The Variable Fee will only be charged to Customer once a Store is launched on either the Chord Performance or Chord Autonomy platform, as identified in the Order. For the avoidance of doubt, launch will be deemed to have occurred upon the first instance that production data is processed via the Services, whether technically in the “FreeService Term” or “Paid Service Term”, as may be identified in the Order. The Fixed Fee will be limited to a certain number of unique Users visiting the Stores each month, as set forth in theOrder (the “Monthly User Limit”). The Service Fees may also include other fees depending on the Services ordered. In addition, the Payment Processor (as defined below) may directly charge a transaction-based fee.
(b) GMV.“GMV” is reportable in the Applicable Currency (as defined below) and shall mean the total monetary value in the Applicable Currency of all transactions for goods and services in a calendar month generated through theStores, after application of all applicable shopping cart discounts and promotions identified by the Customer as part of the transaction within the Stores. GMV includes all transactions regardless of order and shipping status.Shipping and handling charges and taxes, when identified by the Customer aspart of the transaction within the Stores, are excluded from GMV.
(c) Service Fee Increases. Chord may in its sole discretion introduce new fees applicable to the Services, or increase any of the existing Service Fees for any Renewal Term (as defined below), provided that Chord gives Customer written notice of any such additional fees or Service Fee increases at least 90 days’ prior to the end of the then-current term. If Chord does not provide notice toCustomer pursuant to this Section, then the Service Fees applicable to the immediately prior term will continue to apply to the subsequent RenewalTerm. In addition to the increases described herein, the Order may specify certain revenue thresholds that, if crossed, will result in increased Fixed Fees.
(d) Billing Dates. Unless otherwise set forth in the Order, the Fixed Fee will be due and payable by Customer within seven (7) days of the receipt of an invoice issued after the end of the calendar month during the Paid Service Term. Unless otherwise set forth in theOrder, the Variable Fee and any overage fees will be due and payable byCustomer within seven (7) days of an invoice issued after the end of the applicable calendar month, commencing after a Store is launched on either theChord Performance or Chord Autonomy platform, as identified in the Order. Unless otherwise set forth in an SOW, the Professional Services Fees will be due and payable by Customer within seven (7) days of the receipt of the applicable invoice therefor. Customer will not be in breach of this Agreement for any delay in the payment of any amounts disputed by Customer in accordance withSection 2.5(j).
(e) PaymentMethod. In order to access and use the Services, Customer must keep a valid payment method on file and must provide information regarding Customer’s credit card or other payment instrument to Chord (the “Payment Method”).Customer represents and warrants to Chord that the information regarding thePayment Method is true and accurate, and that Customer is authorized to use thePayment Method selected. Customer will promptly update the Payment Method with any changes that may occur to the Payment Method (for example, a change inCustomer’s billing address or credit card expiration date). Unless otherwise set forth in the Order or in an SOW, Customer agrees that Chord will charge thePayment Method for any one-time, non-recurring charges applicable to theServices as specified in the applicable Order, and Chord will charge applicableService Fees to the Payment Method in accordance with this Section 2.
(f) PaymentAuthorization. Unless otherwise set forth in the Order or SOW, Customer authorizes Chord to electronically debit the Payment Method for the ServiceFees or Professional Services Fees, and if necessary, to electronically credit the Payment Method, in each case, in accordance with the terms and conditions of this Agreement. Customer understands that this authorization will remain in full force and effect until this Agreement is terminated pursuant to Section 3of this Agreement. Customer acknowledges that all payments Customer authorizes must comply with applicable laws, rules and regulations. Once Customer authorizes payment, no changes or corrections to the payment may be made unless Customer disputes the applicable charges pursuant to Section 2.5(j). Customer understands that Customer should retain a hard or electronic copy of Customer’s authorization for Customer’s records.
(h) Applicable Currency. Unless the parties agree otherwise, all Service Fees,Professional Services Fees and other charges will be calculated in U.S.dollars, and all payments will be in U.S. dollars (the “Applicable Currency”).If any Store processes transactions in a currency other than the ApplicableCurrency, then for the purposes of calculating the Service Fees andProfessional Services Fees and any other applicable fees, the monetary value in the Applicable Currency of each transaction will be determined using the currency conversion rate in effect at the time that such transaction is processed by such Store, as published in the Wall Street Journal.
(i) Taxes. Customer will, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state, provincial or otherwise, however designated, which are leviedor imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on Chord’s net income. To the extent that Chord is required to charge Customer any sales, VAT or similar taxes based on the provision of the Services, Customer is only obligated to pay such taxes if they are included on the applicable invoice. Customer agrees to indemnify, defend, and hold Chord, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Customer’s failureto report or pay any such taxes, duties or assessments.
(j) DisputedCharges. It is Customer’s responsibility to review all invoices and charges for accuracy. Failure by Customer to dispute any charge within 30 days of the invoice date (or, if no invoice, within 30 days of the applicable charge), will constitute Customer’s agreement that the invoiced Service Fees, ProfessionalServices Fees and other applicable charges are valid and a waiver of any claimsCustomer may have had regarding such Service Fees, Professional Services Fees or charges.
(k) Unpaid Fees. If Chord is not able to process payment of ServiceFees or Professional Services Fees (that are not being disputed in accordance with Section 2.5(j)) using the Authorized Card, Chord will notify Customer. If after such notice to Customer, Chord is still not able to process payment of the Service Fees or Professional Services Fees using the Authorized Card, thenChord may suspend the Services and Professional Services (if applicable) and revoke Customer ’s access to the administrative console for the Services.Customer’s access will be reactivated upon payment of any outstanding and undisputed Service Fees and Professional Services Fees. During any period of suspension, Customer and Users will not be able to access the Services. If the outstanding and undisputed Service Fees or Professional Services Fees remain unpaid for 30 days following the date of suspension, Chord reserves the right to terminate this Agreement. Any unpaid Service Fees and Professional ServicesFees (excluding amounts disputed by Customer in reasonable and good faith) will bear interest at the rate of 1.5% per month, or the highest rate permitted by applicable law if lower. Customer will pay all reasonable expenses (including attorney’s fees and court costs) incurred by Chord in collecting unpaid ServiceFees and Professional Services Fees, excluding amounts disputed by Customer in reasonable and good faith.
2.6. Customer Communications, Promotions,Marketing
(a) Customer shall comply with (i) any applicable laws, rules or regulations that govern online promotions, offers, gift cards, coupons, and/or gift certificates, data privacy and protection, intellectual property, the sending of electronic marketing messages and the sending of SMS and/or MMS text messages and (ii) laws, rules and regulations that apply to commerce, in each jurisdiction in which Customer will be sending marketing communications to a resident of the jurisdiction.
(b) Customer acknowledges and agrees that Chord(i) does not control or monitor Customer communications, or guarantee the accuracy, integrity, security or quality of such Customer communications and(ii) is not responsible for obtaining any necessary consents or permissions from recipients of Customer communications.
(c) Customer represents and warrants that: (i)Customer is solely responsible for Customer communications and Customer marketing content; (ii) Customer has the legal right to use and send allCustomer communications including Customer marketing content, and has obtained all necessary permissions, valid consents and releases from recipients ofCustomer communications; (iii) the timing and purpose of all Customer communications, campaigns and programs are in compliance with all applicable laws, rules and regulations; and (iv) Chord’s use of the Customer communications shall not violate the rights of any third party or any laws, rules or regulations. With respect to email communications sent on Customer’s behalf, Chord and/or its respective affiliates or third-party service providers shall be an initiator but not a sender of such Customer communications.Customer shall be deemed the sender of such messages and shall be solely responsible for complying with Customer’s obligations as a sender under applicable law. With respect to text message communications sent on Customer’s behalf, Chord and/or its respective affiliates or third-party service providers shall be a provider but not a maker or initiator of such Customer communications. Customer shall be deemed the maker or initiator of such messages and shall be solely responsible for complying with Customer’s obligations as a maker or initiator under applicable law. Upon request,Customer shall provide reasonable proof of compliance with the provisions set forth in this Section and Chord shall have no obligation to provide Services where Chord reasonably believes that Customer has not so complied.
Section 3: Term and Termination
Unless terminated earlier pursuant to the terms and conditions of this Agreement or otherwise set forth in the Order, this Agreement will commence on the Order Effective Date and will remain in force for an initial term of 12 months (the “Initial Term”). Thereafter, this Agreement will renew for an additional twelve-month term (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either party provides the other with notice of its intention not to renew at least 90 days prior to the expiry of the then-current term. Each SOW will continue until the completion of the Professional Services described therein (or until the expiration of any express SOW term set forth therein), unless earlier terminated in accordance with this Agreement or suchSOW.
Either party may terminate this Agreement upon written notice if the other party: (i) assigns or attempts to assign thisAgreement to a third-party in violation of this Agreement; (ii) fails to correct a material breach of its obligations under this Agreement or any SOW within 30 days after receipt of written notification from the notifying party of such material breach; (iii) ceases to carry on business as a going concern; or (iv) initiates a bankruptcy, reorganization or insolvency proceeding, or has such a proceeding initiated against it, makes an assignment for the benefit of creditors, or consents to the appointment of a trustee. Either party may also terminate an SOW (in lieu of terminating this Agreement as a whole) upon written notice if the other party fails to correct a material breach of its obligations under such SOW within 30 days after receipt of written notification from the notifying party of such material breach.
3.3. Effect of Termination
Upon the expiry or termination of this Agreement by either party for any reason:
(a) Chord will cease providing Customer with the Services, andCustomer will no longer have access to the Services; provided, however, that, upon written request from Customer within thirty (30) days of expiration or termination of this Agreement, Chord will either (i) enable Customer to access and download all Customer Data from the Services or (ii) provide to Customer anexport of all such Customer Data in Chord’s standard format;
(b) unless otherwise provided in the Order,Customer will not be entitled to any refunds of any prepaid Service Fees, prorata or otherwise;
(c) Chord will cease providing Customer with the Professional Services, if applicable, and all SOWs will immediately terminate;
(d) any outstanding balance of any Service Fees,Professional Services Fees or other charges owed by Customer to Chord up to the effective date of termination will immediately become due and payable in full; and
(e) each party will immediately discontinue all use of the other party’s Confidential Information (as defined below).
Section 4: Intellectual Property
4.1. Customer Intellectual Property
Customer, or its third party licensors, retains ownership of all Customer IP. Customer will be solely responsible for the accuracy, adequacy, quality, integrity, legality, reliability, and appropriateness of all Customer IP. Customer hereby grants to Chord a non-exclusive, paid-up, royalty-free, non-sublicensable (except to Chord’s service providers, contractors and consultants) license to copy, display, distribute, modify, create derivative works of and otherwise use theCustomer IP for the purpose of providing the Services and/or the ProfessionalServices under this Agreement. In addition, Customer hereby grants to Chord a non-exclusive, perpetual, royalty-free, fully paid-up, and irrevocable license to anonymize, aggregate and create derivative works of Customer Data, for the purpose of deriving anonymous statistical and usage data, and data related to the functionality ofChord’s products and services, provided such data cannot be used to identifyCustomer or Users (“Anonymous Data”) and combine or incorporate suchAnonymous Data with or into other similar data and information available, derived or obtained from other sources (when so combined or incorporated, referred to as “Aggregate Data”), for improving Chord’s existing products and services, developing new Chord products and services and for marketing purposes (e.g., indicating the number of customers using Chord products and services). For clarity, neither Anonymous Data nor Aggregate Data is Customer Data. Customer represents and warrants that it has all the rights, power and authority necessary to grant the above licenses.
4.2. Chord Intellectual Property
(a) Customer acknowledges and agrees that: (i) the Services, including without limitation any associated software, documentation, applications, websites, tools, products, and software development kit(s) made available by Chord, and any modifications, enhancements and updates thereto, and all intellectual property rights therein (collectively, “Chord IP”)are exclusively owned by Chord and/or Chord’s third party providers; (ii) theChord IP contains valuable copyrighted material and is protected by U.S. and international copyright and other intellectual property laws; (iii) subject to Customer’s compliance with this Agreement, Chord grants Customer a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to access and use theChord IP, solely for the purposes of using the Services in compliance with thisAgreement; and (iv) Customer has no rights in the Chord IP, other than therights and licenses granted herein.
(b) Customer and Users will not use the ChordIP for any purpose other than as expressly set forth and permitted in thisAgreement. Customer will not (and will not allow any third party) to: (i)reverse engineer or otherwise attempt to discover any source code or underlying ideas or algorithms of any part of the Chord IP; (ii) modify, translate, or otherwise create derivative works of the Chord IP; (iii) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Chord IP or any related systems, hardware or networks or any content or technology incorporated in any of the foregoing;(iv) allow the removal, alteration, covering or obscuring or of any notice or mark that appears on the Chord IP, on any copies or media; or (v) use the ChordIP in any manner to create or facilitate the creation of, or otherwise incorporate any portion of the Chord IP in, any product or service that is competitive with the Services. Customer will use its best efforts to immediately notify Chord of any unauthorized use, access to or disclosure of the Chord IP of which Customer becomes aware.
4.3. Names and Trademarks
The trade names, trademarks, service marks, trade dress and logos (collectively “Marks”) of each party, its parent or affiliates are the exclusive property of such party and, except as otherwise provided in this Agreement, the other party will not use such Marks or any abbreviation or adaptation thereof for any purposes without the prior written consent of the party who owns such Marks. Notwithstanding the foregoing orSection 4.1, Customer hereby grants Chord a non-exclusive right and license touse Customer’s Marks to provide and promote the Services, which includes the right to publicly identify the Customer as a Customer of Chord. Each party acknowledges that all use of the other party’s Marks will inure to the benefit of and be on behalf of the party owning such Marks.
Section 5: Representations and Warranties
5.1. CHORD WARRANTIES
CHORD REPRESENTS AND WARRANTS TO CUSTOMER THAT(a) DURING THE TERM IT WILL PROVIDE THE SERVICES AND PROFESSIONAL SERVICES IN A MANNER CONSISTENT WITH THIS AGREEMENT; AND (b) IT HAS THE LEGAL POWER TO ENTER INTO AND PERFORM ITS OBLIGATIONS AND GRANT THE RIGHTS TO CUSTOMER SET OUT INTHIS AGREEMENT. IN ADDITION, CHORD REPRESENTS AND WARRANTS THAT CHORD WILL USE REASONABLE EFFORTS TO PROVIDE THE SERVICES AND PROFESSIONAL SERVICES IN A PROFESSIONAL AND WORKMANLIKE MANNER IN ACCORDANCE WITH THE SERVICE LEVEL AGREEMENT SET FORTH IN EXHIBIT A.
5.2. CUSTOMER WARRANTIES AND COVENANT
CUSTOMER REPRESENTS AND WARRANTS THAT:
(a) CUSTOMER HAS THE LEGAL POWER TO ENTER INTO AND PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE PERSON EXECUTING THE ORDER ON CUSTOMER’S BEHALF HAS BEEN DULY AUTHORIZED TO DO SO.
(b) AS BETWEEN CUSTOMER AND CHORD, CUSTOMER IS BETTER ABLE TO PUT IN PLACE PHYSICAL AND PROCEDURAL IMPEDIMENTS TO THE INAPPROPRIATE USE OF THE SERVICES. CUSTOMER WILL BE RESPONSIBLE FOR THE CUSTOMER IP (INCLUDING THE ACCURACY, ADEQUACY, QUALITY, INTEGRITY, LEGALITY,RELIABILITY, AND APPROPRIATENESS OF SAME) AND THE OPERATION OF, AND TRANSACTIONS PROCESSED THROUGH, THE STORES.
(c) WITH RESPECT TO THE CUSTOMER IP: (i)CUSTOMER OWNS OR HAS VALIDLY LICENSED, OR WILL OWN OR VALIDLY LICENSE, THE RIGHT TO ALL MATERIALS GENERATED, STORED, POSTED, DISPLAYED, EXHIBITED OR DISTRIBUTED BY, OR UPLOADED OR TRANSMITTED TO OR FROM, THE STORES AND RELATED SERVICES; (ii) ANY MATERIALS THAT CUSTOMER GENERATES, UPLOADS, STORES, POSTS,EXHIBITS, DISPLAYS, DISTRIBUTES OR TRANSMITS DO NOT AND WILL NOT INFRINGE OR VIOLATE ANY OF THE COPYRIGHT, PATENT, TRADEMARK, OR ANY OTHER INTELLECTUAL PROPERTY, PERSONAL OR PROPRIETARY RIGHTS OF ANY THIRD PARTY (“THIRD PARTY RIGHTS”); AND (iii) CUSTOMER HAS OR WILL HAVE THE RIGHT AND AUTHORITY TO OFFER, SELL, TRADE, DISTRIBUTE OR EXPORT THE PRODUCTS OR SERVICES INCLUDED INTHE STORES AND SUCH OFFER, SALE, TRADE, DISTRIBUTION, OR EXPORT DOES NOT ORWILL NOT VIOLATE ANY APPLICABLE LAWS OR THIRD PARTY RIGHTS.
(d) ANY SALES TRANSACTIONS OCCURRING ON OR INTHE STORES WILL REPRESENT A BONA FIDE SALE, CUSTOMER WILL FULFILL ALL OF ITS OBLIGATIONS TO EACH PURCHASER WHO ENTERS INTO A TRANSACTION WITH CUSTOMER, AND CUSTOMER WILL RESOLVE ANY DISPUTE OR COMPLAINT DIRECTLY WITH ITS PURCHASERS.
EXCEPT AS SPECIFICALLY SET OUT IN THIS SECTION OR IN THE ORDER, THE SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS”AND “AS AVAILABLE”, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OFANY KIND. CHORD AND ITS THIRD-PARTY LICENSORS MAKE NO OTHER REPRESENTATIONS AND GIVE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE SERVICES, PROFESSIONAL SERVICES OR ANY PRODUCTS PROVIDED UNDER THIS AGREEMENT AND CHORD SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED REPRESENTATIONS,WARRANTIES OR CONDITIONS OF MERCHANTABILITY, DURABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CHORD WILL NOT BE LIABLE TO CUSTOMER, ANY USER OR ANY OTHER THIRD PARTY FOR ANY USE OF OR INACCURACY IN ANY PRODUCTS OR FOR ANY TRANSACTIONS PROCESSED THROUGH THE STORES. CHORD WILL NOT BE LIABLE FOR THE PERFORMANCE OF ANY THIRD-PARTY PRODUCTS OR SERVICES.
Section 6: Indemnities and Limitation ofLiability
(a) Chord will indemnify and hold Customer and(as applicable) its affiliates and their respective officers, directors, agents, and employees, harmless from and against any claims, demands, losses, damages, liabilities and costs (including, without limitation, reasonable attorneys’ fees and court costs) (“Losses”) arising from third party claims (“Claims”) alleging that Customer’s use of the Services in accordance with this Agreement infringes any intellectual property right of a third party.Notwithstanding the foregoing, Chord will have no obligation under this Section or otherwise with respect to any Claim to the extent based upon (i) any use of the Services other than as expressly permitted under this Agreement, (ii) any combination of the Services with other products, equipment, software or data not supplied by Chord, (iii) any modification of the Services by any person other than Chord or its authorized agents or contractors or (iv) any activity after Chord has provided Customer with a work around or modification that would have cured the alleged infringement without materially adversely affecting the functionality or availability of the Services. If Chord reasonably believes that all or any portion of the Services, or the use thereof, is likely to become the subject of any infringement claim, suit or proceeding, Chord will procure, at Chord’s expense, for Customer the right to continue using the Services in accordance with the terms hereof, replace or modify the allegedly infringing Service to make it non-infringing, or, in the event the preceding is infeasible or not commercially practicable, Chord may, in its sole discretion, terminate this Agreement upon written notice toCustomer and refund to Customer any prepaid amounts for unused Services.
(b) Customer will indemnify and hold Chord and(as applicable) its affiliates and their respective officers, directors, agents, and employees, harmless from and against any Losses arising from Claims(i) alleging that Chord’s use of the Customer IP in accordance with thisAgreement infringes any intellectual property right of or otherwise violates the rights of any third party or (ii) arising from (A) transactions made via the Stores or Customer’s relationship with any of its customers, (B) Customer’s use of any third-party services or breach of any third-party terms that are applicable to Customer’s use thereof, including the Segment Terms of Service and Payment Processor Terms, or (C) Customer’s violation of any applicable laws, rules or regulations.
(c) If a party becomes aware of any Claim for which it believes it should be indemnified under Section 6.1(a) or 6.1(b), as applicable, such party seeking indemnification will give the indemnifying party prompt written notice thereof. The indemnifying party will have sole control of the defense and investigation of such Claim, at the indemnifying party’s sole cost and defense. The indemnitee will reasonably cooperate, at the expense of the indemnifying party. The indemnitee’s failure to perform any obligations under this Section will not relieve the indemnifying party of its obligations under this Section, except to the extent that the indemnifying party is materially prejudiced as a result of such failure. The indemnitee will have the right to participate fully, at its own expense, in the defense of the applicable action with counsel of its own choosing. Any compromise or settlement of any suchaction will require the prior written consent of the indemnitee, not to be unreasonably withheld, conditioned or delayed.
6.2. Limitation of Liability
EXCEPT FOR LIABILITY ARISING FROM EITHER PARTY’S (A) INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6.1, OR (B)INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR THE SUBJECT MATTER THEREOF, TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OFTHE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING FROM EITHER PARTY’S (A) INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6.1, OR (B)INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR THE SUBJECT MATTER THEREOF, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE SERVICE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE.
Section 7: Confidentiality and Privacy
7.1. Confidential Information
For the purposes of this Agreement, “Confidential Information”includes any information, technical data, or know-how concerning either party, including, but not limited to, that which relates to research, products, services, customers, markets, business policies or practices, unreleased software, developments, inventions, processes, designs, drawings, engineering, marketing, reports and audits, business plans or finances, and the relationship between the parties as evidenced by this Agreement.
Confidential Information also includes any materials or information provided by either party to the other that are identified by the disclosing party as confidential or proprietary, or that the receiving party should reasonably understand to be confidential and proprietary. Confidential Information does not include information that: (i)was in the public domain at the time the receiving party received it; (ii)comes into the public domain after the receiving party received it through no fault of the receiving party; (iii) the receiving party received from a third party without breach of the receiving party’s or third party’s confidentiality obligations; (iv) is independently developed by the receiving party without use of or reference to the Confidential Information; or (v) the receiving party is required by law to disclose. For the avoidance of doubt, the terms and conditions of this Agreement will be considered Confidential Information of both parties.
7.2. Confidentiality Obligations
Neither party will use any ConfidentialInformation of the other party except as necessary to exercise its rights or perform its obligations under this Agreement or as expressly authorized in writing by the other party. Each party will use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own Confidential Information of like nature (and in any case no less than a reasonable degree of care). Neither party will disclose the other party’sConfidential Information to any person or entity other than its officers, directors, employees, service partners, customers, consultants and legal advisors who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as restrictive as those in this Section 7.
7.3. Injunctive Relief
Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party may not have an adequate remedy in money or damages if any unauthorized use or disclosure of its Confidential Information occurs or is threatened. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party will be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
7.4. Other Exceptions
Notwithstanding the foregoing provisions in this Section 7, the parties may disclose the terms and conditions of this Agreement: (i) as otherwise required by law or the rules of any stock exchange or over-the-counter trading system provided that reasonable measures are used to preserve the confidentiality of this Agreement; (ii) in confidence to legal counsel; (iii) in connection with the requirements of a public offering or securities filing provided reasonable measures are used to obtain confidential treatment for the proposed disclosure, to the extent such treatment is available; (iv) in connection with the enforcement of this Agreement or any rights under thisAgreement, provided that reasonable measures are used to preserve the confidentiality of the Confidential Information; (v) in confidence, to auditors, accountants and their advisors who are subject to confidentiality obligations at least as restrictive as those in this Section 7; and (vi) in confidence, in connection with a change of control or potential change of control of a party or an affiliate of a party, provided that reasonable measures are used to preserve the confidentiality of this Agreement. For any legally compelled disclosure or disclosure pursuant to a court, regulatory, or securities filing, the parties will reasonably cooperate to limit disclosure ofConfidential Information, including the terms and conditions of this Agreement.For greater certainty, nothing in this Section 7 will diminish a receiving party’s obligations under this Agreement to comply with applicable privacy and personal information protection laws.
7.5. Chord’s Responsibilities RegardingCustomer Data
Section 8: General
8.1. Relationship of Parties
The parties are independent contractors.Neither party will be deemed to be an employee, agent, partner, joint venture or legal representative of the other for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other. Any use of the term “partner” or “partnering” or similar terminology in connection with the Services or this Agreement (except as used in the immediately preceding sentence of this Section) does not mean or refer to a legal partnership, but instead means or refers to a co-operative business or contractual relationship.
Neither party may assign this Agreement without the prior written consent of Chord, such consent not to be unreasonably withheld; provided however, that no such consent will be required for an assignment in connection with any transfer to an affiliate or for a transfer to a successor-in-interest by way of merger, consolidation or sale of all or substantially all of the assigning party’s stock or assets.
8.3. Governing Law; Jurisdiction; Limitation ofAction
This Agreement will be governed by and is to be construed and interpreted in accordance with the laws of the State of New York, without regard to principles of conflicts of laws. The parties expressly disclaim the application of the United Nations Convention on Contracts for theInternational Sale of Goods to this Agreement. All disputes arising under thisAgreement will be subject to the exclusive jurisdiction of the courts located in New York, New York and each party irrevocably and unconditionally consents to personal jurisdiction of such courts. To the extent permitted by applicable law, all claims related to this Agreement must be filed within two years from the date the cause of action arose.
8.4. Compliance with Laws
Each party agrees to fully comply with all applicable laws, rules and regulations in their performance of this Agreement.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will 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 provisions of this Agreement will remain in full force and effect.
8.6. Force Majeure
Except for obligations to pay any Service Fees owing under this Agreement, neither party will be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond such party’s reasonable control, including but not limited to acts of God, extreme weather, earthquakes, wars, terrorism, communication failures, strikes(other than strikes at such party’s facility or involving such party’s employees). If either party’s performance is prevented by a force majeure event for a period of more than 30 calendar days, the other party may terminate thisAgreement without further obligation or liability, subject to any payment amounts due and payable as of the effective date of termination.
8.7. No Exclusivity
Chord reserves the right to provide services to Customer’s competitors and makes no promise of exclusivity in any particular market segment.
8.8. Legal Notice
All legal notices or demands to or upon a party will be made in writing and sent to such party personally, by courier or certified mail to the addresses set forth in the Order, as may be updated upon written notice by either party. In addition, Chord may send notices to Customer via email, to the email address set forth in theOrder, as may be updated upon written notice by Customer. Except as otherwise specified in thisAgreement all notices, permissions and approvals must be in writing and will be deemed to have been given upon: (i) personal or couriered delivery; (ii) the fifth business day after mailing; or (iii) in the event Chord is sending a notice by email, the first business day after sending by email.
8.9. Amendment and Waiver
This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties. The failure of either party to exercise or enforce any provision of this Agreement will not constitute a waiver of such right or provision or any other provision of this Agreement or otherwise affect the rights of such party.
8.10. Entire Agreement
This Agreement constitutes the entire agreement between the parties respecting Customer ’s use of the Services, and supersedes any prior written or oral agreements between the parties.
All sections of this Agreement that by their nature should survive termination will survive such termination, including, without limitation, payment obligations ,confidentiality obligations, intellectual property rights, warranty disclaimers, indemnities and limitations of liability.
Section 9: Demo Environments
Preventing Abuse of Hosting Systems:
The demo system is intended to showcase functionality of the Chord system and software, by providing a functional hosting environment to those who sign up for a demo through the website. WhileChord will make an effort to ensure the demo environment is functional and acceptable for demonstrating features and uses; Chord makes no guarantees regarding this demo environment, and does not warrant any particular function or service as part of the demo.
By signing up for a demo of Chord systems and software, you agree not to engage in any activity that may interfere with or disrupt the performance or functionality of Chord's systems. This includes, butis not limited to, distributing or transmitting any malicious software, spam, or other harmful or illegal content. You agree not to attempt to gain unauthorized access to Chord hosting systems or any other systems or networks connected to Chord hosting systems, which includes any system on the internet to which you do not have authorization.
Protecting Source Code, and Acceptable CodeUse:
You agree to protect the source code provided to you as part of Chord's services, and not to use it for any commercial products or derivative works without Chord's prior written consent. You acknowledge that the source code is Chord's valuable intellectual property and that any unauthorized use or distribution of the source code may result in legal action being taken against you. You also agree to keep the source code confidential and not to disclose it to any third party without Chord's prior written consent.
By using Chord demo services, you agree to comply with these terms and any other applicable terms and conditions. We reserve the right to update or modify these terms at any time, and it is your responsibility to review these terms periodically. If you do not agree to these terms, you may not use Chord services and must not sign up for a demo environment.
ThisService Level Agreement (“SLA”) sets forth the parties’ agreement with respectto the Services.
Uptime and Availability
1. UptimeCommitment. Chord shall provide Availability (as defined below) of at least 99.99% each month as calculated below.
“Availability”is calculated as follows:
([# of minutes in month]-[# of minutes per month Services are Unavailable]) / [# of minutes in month]
“Unavailable”means the Services are not available for access and use through Customer’sInternet connection, excluding (1) planned maintenance (as described below);(2) reasons of a force majeure event or events that are outside Chord’s reasonable control; and/or (3) issues arising from misuse or mis-configuration of the Services by Customer or its agents, customers, third party contractors or Customer’s failure to comply with its obligations hereunder.
3. ServicesInterruptions and Advanced Notification Requirements:Chord will provide Customer with at least 72 hours advance notice, unless otherwise agreed by Customer, via e-mail of all planned maintenance activities. Unless otherwise agreed by Customer in advance, Chord will perform planned maintenance within a maintenance window from Monday through Thursday (primarily on Wednesday nights)between the hours of 10:00 PM to 02:00 AM Pacific Time.
4. ServiceLevel Credits. Notwithstanding anything to the contrary, Customer's sole and exclusive remedy, and Chord's sole and exclusive liability, in the event Chord fails to meet the Availability target set forth above shall be for Customer to receive aService Credit in accordance with the terms of this Section. Remedies will not accrue (i.e., no ServiceCredits will be issued and an outage will not be considered Unavailability for purposes of this SLA) if Customer is not current in its payment obligations either when the outage occurs or when the Service Credit would otherwise be issued. To receive Service Credits,Customer must submit a written request within fifteen (15) days after the end of the month in which the Services were Unavailable. Chord will credit Customer a percentage ofCustomer’s monthly subscription fees for the month affected based on the following chart:
Monthly Availability: <99.99-99.95
Service Credit % ofMonthly Subscription Fees: 0.5%
Monthly Availability: <99.95%-99.0%
Service Credit % ofMonthly Subscription Fees: 1.5%
Monthly Availability: <99.0%-98.0%
Service Credit % ofMonthly Subscription Fees: 3%
Monthly Availability: <98.0%
Service Credit % ofMonthly Subscription Fees: 5%
Service Incidents and Response Times
5. ServiceIncidents. EachService incident reported by Customer will be classified according to the following definitions, and Chord will use commercially reasonable efforts to address the incident in accordance with such classification according to the table below. To contact Chord regarding any Service incidents, Customer may submit a support request firstname.lastname@example.org.
Incident Level: P0 (Critical)
Incident Description: The Services are completely unavailable, and/orCustomer cannot use the Services due solely to a Services failure.
Target Response Time: 60 minutes or less (24/7)
Subsequent Update: Every 4 hours
Incident Level: P1 (Serious)
Incident Description: A significant functional component of theServices is unavailable, and/or Customer’s use of such component is impaired due solely to a Services failure.
Target Response Time: 120 minutes
Subsequent Update: Every 6 hours
Incident Level: P2 (General)
Incident Description: A non-significant functional component of theServices is unavailable, and/or Customer’s use of such component is impaired due solely to a Services failure.
Target Response Time: 12 business hours
Subsequent Update: Daily (During business hours)