Searchspring Master Subscription Agreement

THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES BY YOU, USERS AND VISITORS.

By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any User or Visitor to access or use a Service, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Searchspring that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Subscriber,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. 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 use any of the Services.

1. DEFINITIONS

When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:

Account: means any accounts or instances created by or on behalf of Customer or its Users within the Service.

Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.

User: means an individual authorized to use the Service through Customer’s Account as a user and/or administrator as identified through a unique login.

Agreement: means the Master Subscription Agreement together with any and all Supplemental Terms, and Order Forms along with the Privacy Policy located on the Searchspring Site.

Confidential Information: includes any proprietary data and any other information disclosed by one party to the other in writing and marked “confidential” or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. However, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party’s possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information. For purposes of this Agreement, Service Data and Analytics Data shall be deemed Confidential Information.

Searchspring Site: means https://searchspring.com/ and smc.searchspring.net, as applicable, as well as the other websites that Searchspring operates.

Service Data: means product information, inventory and pricing data, searchable content, historical sales data or other materials made accessible to and stored within the Service by Customer and Users in connection with Customer’s use of the Service.

Analytics Data: means the data the Customer collects, processes or stores, typically using an analytics service (e.g., Google Analytics, New Relic, Segment.io, etc), concerning the characteristics and activities of Visitors.

Service Plan(s): means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Order Form) for the Service to which Customer subscribes.

API: means the application programming interfaces developed and enabled by Searchspring that permits Customer to access certain functionality provided by the Service, including without limitation, the REST API that enables the interaction with the Service automatically through HTTP requests and the application development API that enables the integration of the Service with other applications.

Associated Services: means products, services, features and functionality designed to be used in conjunction with the Service but not included in the Service Plan to which Customer subscribed, including without limitation, integrations and customizations created or developed by Searchspring or its Affiliates which are expressly stated to be governed by this Agreement. For avoidance of doubt, neither the Searchspring Service or any other product, service, feature or functionality that is expressly stated to be governed by any alternative license, agreement or terms of service shall be deemed an Associated Service.

Software: means software provided by Searchspring (either by download or access through the internet) that allows a User or Visitor to use any functionality in connection with the applicable Service.

Account Limits: shall mean various capacity and volume restrictions associated with a Subscription.  Account Limits will be defined on the Order Form and may include, but are not limited to, limitations on the total number of product records the Subscription will allow, the index update frequency, the amount of Site Traffic Searchspring will respond to on behalf of the Customer, or the number of API requests a Customer may make in a specified period of time.

Service(s): shall mean Searchspring’s software-as-a-service offering currently marketed as the “Searchspring Relevancy Platform” as described on the Searchspring website (www.searchspring.com or such subsequent website designated by Searchspring), provided primarily as the administration and reporting interface (“Searchspring Management Console”), the Searchspring APIs, frontend shopping UI SDKs, ecommerce integration tools and related documentation.

Subscription: means the purchase by Customer of a subscription to the Service.

Order Form: shall mean Searchspring’s sales order form pursuant to which Customer orders Searchspring products and services, which describes, among other things, the term of the Subscription (“Subscription Term“), applicable one-time or recurring fees and any applicable Account Limits.

Site(s): means any website, related mobile websites, services, tools and other applications owned and operated by Customer, subject to the limit on authorized Unique Domains as set forth in an applicable Order Form.

Unique Domain: shall mean any unique combination of a top-level domain and a second level domain. By way of example, in the domain name “searchspring.com”, “searchspring” is the second-level domain and “.com” is the top-level domain.

Visitors: means and refers to visitors to Customer’s Sites.

Beta Services: means a product, service or functionality provided by Searchspring that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.

2. GENERAL CONDITIONS & ACCESS TO AND USE OF THE SERVICE

2.1 During the Subscription Term and subject to compliance by You, Users and Visitors with this Agreement, You have the limited right to access and use a Service consistent with the Service Plan(s) that You subscribe to for Your ecommerce business purposes. We will (a) make the Services and Service Data available to You pursuant to this Agreement and the applicable Order Forms; (b) provide applicable standard customer support for the Services to You at no additional charge as detailed on the applicable Site and Documentation and/or upgraded support if purchased; (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (i) during planned downtime for upgrades and maintenance to the Services (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your Account owner and Users) (“Planned Downtime”); and (ii) for any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Third Party Services, or acts undertaken by third parties, including without limitation, denial of service attack (“Force Majeure Event”). Searchspring reserves the right to monitor and periodically audit Your use of the Service to ensure that Your use complies with the Agreement and the Account Limits related to your Subscription. Should Searchspring discover that Your or any User’s use of the Service is not in compliance with the Agreement or the Account Limits, Searchspring reserves the right to charge You, and You hereby agree to pay for, said usage in addition to other remedies available to Us.

2.2 You may not use the Services to provide search, navigation, product recommendations, product finders or merchandising features to more than one Unique Domain through a single Account. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by Searchspring from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in writing.

2.3 A high speed Internet connection is required for proper transmission of the Services. You are responsible for procuring and maintaining the network connections that connect Your network to the Services, including, but not limited to, “browser” software that supports protocols used by Searchspring, including the Transport Layer Security (TLS) protocol or other protocols accepted by Searchspring, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Users or Visitors of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Searchspring. We assume no responsibility for the reliability or performance of any connections as described in this section.

2.4 In addition to complying with the other terms, conditions and restrictions set forth below in this Agreement, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than authorized Users and Visitors in furtherance of Your ecommerce business purposes as expressly permitted by this Agreement; (b) use the Services to Process data on behalf of any third party other than Your Users or Visitors; (c) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (d) falsely imply any sponsorship or association with Searchspring, (e) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (f) use the Services to store or transmit personally identifiable information or credit card information; (g) use the Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (j) use the Services to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Services to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103; (l) use the Services to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (m) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; or (n) attempt to use, or use the Services in violation of this Agreement.

2.5 You are responsible for compliance with the provisions of this Agreement by Users and Visitors and for any and all activities that occur under Your Account, as well as for all Service Data. Without limiting the foregoing, You are solely responsible for ensuring that use of the Services to store and transmit Service Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Users or Visitors. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Users available under the applicable Service Plan(s) to which You subscribed, access to and use of the Services is restricted to the specified number of individual Users permitted under Your subscription to the applicable Service. You and Your Users are responsible for maintaining the confidentiality of all Login information for Your Account.

2.6 In addition to Our rights as set forth in Sections 2 and 8.4, We reserve the right, in Our reasonable discretion, to temporarily suspend Your access to and use of a Service if We suspect or detect any Malicious Software connected to Your Account or use of a Service by You, Users or Visitors.

2.7 You acknowledge that Searchspring may modify the features and functionality of the Services during the Subscription Term.

2.8 You may not access the Services if You are a direct competitor of Searchspring, except with Searchspring’s prior written consent. You may not access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes.

2.9 From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms that will be presented to You. Beta Services are not considered “Services” under this Agreement; however, all restrictions, Our reservation of rights and Your obligations concerning the Service, and use of any Third Party Services shall apply equally to Your use of Beta Services. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.

2.10 You are prohibited from putting the following types of information in Your Site’s search box, the Searchspring API or including such information in the Service Data stored by the Service: (a) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof); (b) credit or debit card number, financial information, banking account numbers or passwords; (c) employment, financial, or health information; (d) political, ethnic, or religious affiliation, union membership, or sexual orientation; (e) account passwords, mother’s maiden name, or date of birth; (f) criminal history; or (g) any other information or combinations of information that is deemed sensitive or personally identifiable under the legal framework of any applicable jurisdiction.

Further, You will not use the Services for high risk activities which shall mean uses such as the operation of nuclear facilities, air traffic control, life support systems or where the use or failure of the Service could lead to death, personal injury, or environmental damage.

Searchspring does not intend use of the Service’s search and merchandising functionality to create obligations under the Payment Card Industry’s Data Security Standard (“PCI DSS”), The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Gramm-Leach-Bliley Act (“GLBA”) or similar laws and makes no representations that the Service’s search and merchandising functionality satisfies the requirements of such laws. If You are (or become) a Covered Entity or Business Associate (as defined in HIPAA) or a Financial Institution (as defined in GLBA), You agree not to use the Service’s search functionality for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) or Nonpublic Personal Information (as defined in GLBA). You are solely responsible for Your operation of the Service in compliance with all applicable laws in all jurisdictions.

3. DATA PRIVACY, SECURITY & CONFIDENTIALITY

3.1 Subject to the express permissions of this Agreement, each Party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to those of our respective employees, representatives, subcontractors and Users who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 3 shall supersede any non-disclosure agreement by and between the Parties that would purport to address the confidentiality and security of Service Data and such agreement shall have no further force or effect with respect to Service Data.

3.2 Searchspring will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Service Data. These safeguards include encryption of Service Data in transmission (using TLS or similar technologies), which You may link to through the Service at Your election. Our compliance with the provisions of this Section 3.2 shall be deemed compliance with Our obligations to protect Service Data as set forth in Section 3.1.

3.3 You agree that We and the service providers that We utilize to assist in providing the Service to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Service Data to the extent necessary to provide the Service, including, without limitation, in response to Your support requests. Any third party service providers We utilize will only be given access to Your Account and Service Data as is reasonably necessary to provide the Service and will be subject to confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 3.3.

4. INTELLECTUAL PROPERTY RIGHTS

4.1 Each Party shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You, Users and Visitors to use the Service under this Agreement do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service as expressly stated herein, all rights, title and interest in and to the Service and all hardware, Software and other components of or used to provide the Service, including all related Intellectual Property Rights, will remain with Searchspring and belong exclusively to Searchspring. The Searchspring Group shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Users, End-User, or other third parties acting on Your behalf. Searchspring®, IntelliSuggest® and Searchspring’s other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of one or more members of Searchspring (collectively, “Marks”), and You may only use applicable Marks to identify You as a Customer; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Us, Our services or products.

5. BILLING, PLAN MODIFICATIONS & PAYMENTS

5.1 Unless otherwise indicated on an Order Form referencing this Agreement and subject to Section 5.2, all charges associated with Your access to and use of the Service (“Subscription Charges”) are due in full upon commencement of Your Subscription Term at the time the Service is purchased, subscribed to or otherwise deployed.

If You fail to pay Your Subscription Charges or charges for other services indicated on any Order Form referencing this Agreement within ten (10) business days of Our notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of such Service by You, Users and Visitors. Searchspring assesses a fee of $150.00 to reactivate accounts suspended for non-payment.

5.2 If You choose to upgrade Your Service Plan, or exceed the Account Limits associated with your Subscription during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.

5.3 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and Searchspring does not accept any liability for such loss.

5.4 Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against Searchspring based on its income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.

5.5 If You pay by credit card, ACH, or certain other payment instruments, the Service provides an interface for the Account owner to change credit card and ACH information (e.g. upon card renewal). The Account owner will receive a receipt upon each receipt of payment by Searchspring. You hereby authorize Searchspring to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan for the Service until You terminate Your Subscription to the Service, and You further agree to pay any Subscription Charges so incurred. You agree to promptly update your Account information with any changes (for example, a change in Your billing address or credit card expiration date) that may occur. Searchspring uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for Searchspring. Customer is responsible for notifying company of any changes to the provided credit card to avoid service interruptions in Company’s subscription and to facilitate easy payment for new “Services”.

6. CANCELLATION & TERMINATION

6.1 Either Party may elect to terminate Your Account and subscription to the Service as of the end of Your then current Subscription Term by providing notice, in accordance with this Agreement, on or prior to the date sixty (60) days preceding the end of such Subscription Term. Unless Your Account and subscription to the Services is so terminated, Your subscription to the Service will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in any Order Form, the Subscription Charges applicable to Your subscription to the Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan to which You have subscribed or which you have deployed, as applicable, as of the time such subsequent Subscription Term commences.

6.2 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term. Following the termination or cancellation of Your subscription to the Service and/or Account, We reserve the right to delete all Service Data in the normal course of operation. Service Data cannot be recovered once Your Account is cancelled.

6.3 If You terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term or We effect such termination or cancellation pursuant to Section 2 or 6.4, in addition to other amounts You may owe Searchspring, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by You in the event You terminate Your subscription to the Service or cancel Your Account as a result of a material breach of this Agreement by Searchspring, provided that You provide advance notice of such breach to Searchspring and afford Searchspring not less than thirty (30) days to reasonably cure such breach.

6.4 We reserve the right to modify, suspend or terminate the Service (or any part thereof), Your Account or Your and/or Users’ or Visitors’ rights to access and use the Services, and remove, disable and discard any Service Data if We believe that You, Users or Visitors have violated this Agreement. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, Users, Visitors or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Service. Any suspected fraudulent, abusive, or illegal activity by You, Users or Visitors may be referred to law enforcement authorities at Our sole discretion.

6.5 A Party may terminate this Agreement for cause (a) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by You in accordance with this section, We will, to the extent permitted by applicable law, refund You any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. If this Agreement is terminated by Us in accordance with this section, You will pay any unpaid fees covering the remainder of the Subscription Term pursuant to all applicable Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.

7. REPRESENTATIONS, WARRANTIES & DISCLAIMERS

7.1 Each Party represents that it has validly entered into this Agreement and has the legal power to do so.

7.2 We warrant that during an applicable Subscription Term (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Your exclusive remedies are those described in Section 6.5 herein.

7.3 EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 7.2, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

8. LIMITATION OF LIABILITY

8.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, USERS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR PROFESSIONAL SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

8.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, SEARCHSPRING’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES FOR SUCH SERVICES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 8.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS AGREEMENT.

8.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, SEARCHSPRING’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

8.4 Any claims or damages that You may have against Searchspring shall only be enforceable against Searchspring and not any other entity or its officers, directors, representatives or Users.

9. INDEMNIFICATION

9.1 We will indemnify and hold You harmless, from and against any claim against You by reason of Your use of a Service as permitted hereunder, brought by a third party alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Searchspring for such defense, provided that (a) You promptly notify Searchspring of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim; and (c) You fully cooperate with Searchspring in connection therewith. If use of a Service by You, Users or Visitors has become, or, in Our opinion, is likely to become, the subject of any such IP Claim, We may, at Our option and expense, (a) procure for You the right to continue using the Service(s) as set forth hereunder; (b) replace or modify a Service to make it non-infringing; or (c) if options (a) or (b) are not commercially reasonable or practicable as determined by Searchspring, terminate Your subscription to the Service(s) and repay You, on a pro-rata basis, any Subscription Charges previously paid to Searchspring for the corresponding unused portion of Your Subscription Term for such Service(s). We will have no liability or obligation under this Section 9.1 with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service(s) by anyone other than Searchspring; or (iii) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing.

The provisions of this Section 9.1 state the sole, exclusive and entire liability of Searchspring to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by You, Users or Visitors.

9.2 You will indemnify and hold Searchspring harmless against any claim brought by a third party against Searchspring arising from or related to use of a Service by You, Users or Visitors in breach of this Agreement or matters for which You have expressly agreed to be responsible pursuant to this Agreement; provided (a) We shall promptly notify You of the threat or notice of such claim; (b) You will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or admission of any liability by Us without Our prior written consent); and (c) We fully cooperate with You in connection therewith.

10. ASSIGNMENT, ENTIRE AGREEMENT & AMENDMENT

10.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You to any member of Searchspring or in connection with any merger or change of control of Searchspring or Searchspring or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

10.2 This Agreement, together with any Order Form(s), constitute the entire agreement, and supersede any and all prior agreements between You and Searchspring with regard to the subject matter hereof. This Agreement and any Order Form(s) shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to the subject matter hereof. Notwithstanding the foregoing, additional terms may apply to certain features, functionality, or services We offer as part of or distinct from the Service. In those instances, We will notify You of such Additional Terms prior to the activation of these features, functionality, or services and the activation of these features, functionality, or services in Your Account will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into this Agreement when You or any Agent authorized as an administrator in Your Account activate the feature, functionality, or service. Where there is a conflict between this Agreement and the Additional Terms, the Additional Terms will control.

10.3 We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You not less than thirty (30) days prior to the effective date of any such amendment and Your continued use of the Service following the effective date of any such amendment may be relied upon by Searchspring as Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of the Agreement.

11. SEVERABILITY

If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

12. EXPORT COMPLIANCE & USE RESTRICTIONS

The Service and other Software or components of the Service that We may provide or make available to You, Users or Visitors may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Service, Software and such other components by You, Users and Visitors. You shall not access or use the Service if You are located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) You shall not permit Users or Visitors to access or use the Service in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You, Users and Visitors are located.

13. RELATIONSHIP OF THE PARTIES

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.

14. NOTICE

All notices to be provided by Searchspring to You under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by You on any Order Form; or (b) electronic mail to the electronic mail address provided for Your Account owner. You must give notice to Searchspring in writing by Courier or U.S. mail to 3461 Ringsby Court, Suite 440, Denver, CO 80216 U.S.A. Attn: Searchspring Legal. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.

15. GOVERNING LAW

This Agreement shall be governed by the laws of the State of Colorado, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in Denver County, Colorado. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You, Users or Visitors.

16. SURVIVAL

Sections 1, 3.1, 4 and 7-16 shall survive any termination of our agreement with respect to use of the Service by You, Users or Visitors. Termination of such agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.

SUPPLEMENTAL TERMS & CONDITIONS

PROFESSIONAL SERVICES

If Subscriber has engaged Searchspring for the provision of professional services (including any training, success, and implementation services, “Professional Services”) as indicated on an Order Form, the provision of such Professional Services will be governed by the Agreement, including these Supplemental Terms. Unless otherwise agreed to in a Statement of Work, Subscriber agrees that any Professional Services must be scheduled for completion by Subscriber within three (3) months following the commencement of the Subscription Term as indicated on the Order Form. In consideration of the foregoing, Subscriber and Searchspring, intending to be legally bound, agree to the terms set forth below.

1. SCOPE

1.1 All Professional Services pursuant to the Agreement provided by Searchspring to Subscriber will be outlined in one or more mutually agreed-upon and jointly executed Statement of Work(s) (“SOW(s)”) or Order Forms, each incorporated into the Agreement and describing in detail the scope, nature and other relevant characteristics of Professional Services to be provided.

2. RETENTION

2.1 Subscriber hereby retains Searchspring to provide the Professional Services described in one or more SOWs, subject to the terms and conditions set forth in the Agreement. Searchspring shall not be obligated to perform any Professional Services until both Parties have mutually agreed upon and executed an SOW with respect to such Professional Services. After execution of an SOW, the Professional Services to be provided under that SOW may only be changed through a change order mutually executed by the Parties (“Change Order”).

3. PERFORMANCE OF PROFESSIONAL SERVICES

3.1 Each SOW will include reasonable details about Professional Services, including, at a minimum, the Fees charged and the qualified employees and/or non-employee contractors of Searchspring (“Subcontractors” and together with Searchspring’s employees for the purposes of these Supplemental terms, “Professional Services Personnel”) employed in performing the Professional Services. Searchspring and Subscriber agree to cooperate in good faith to achieve satisfactory completion of the Professional Services in a timely and professional manner.

3.2 The Parties will each designate a representative to interface and facilitate the successful completion of the Professional Services (“Subscriber’s Representative” and “Searchspring’s Representative”, respectively). Any Subcontractor (defined below) designated by Searchspring to perform any portion of the Professional Services will designate a representative to interface with Subscriber and Searchspring on all matters relating to Subcontractor’s performance of Professional Services (“Subcontractor’s Representative”).

3.3 Searchspring will perform the Professional Services, directly or through a Subcontractor of its choice. Subscriber agrees to provide, at no cost to Searchspring, timely and adequate assistance and other resources reasonably requested by Searchspring to enable the performance of the Professional Services (collectively, “Assistance”). Neither Searchspring, nor its Subcontractors will be liable for any deficiency in performance of Professional Services to the extent resulting from any acts or omissions of Subscriber, including but not limited to, Subscriber’s failure to provide Assistance as required hereunder.

3.4 In performing the Professional Services, Searchspring will provide such resources, and utilize Professional Services Personnel as it deems necessary to perform the Professional Services or any portion thereof. Searchspring may replace Professional Services Personnel in its normal course of business, provided that Searchspring will be responsible for the performance of Professional Services by all Professional Services Personnel.

3.5 Searchspring will control the method and manner of performing all work necessary for completion of Professional Services, including but not limited to the supervision and control of any Personnel performing Professional Services. Searchspring will maintain such number of qualified Professional Services Personnel and appropriate facilities and other resources sufficient to perform Searchspring’s obligations under the Agreement in accordance with its terms.

3.6 With Subscriber’s approval, Searchspring may enter (“assume into”) Subscriber’s Account as needed to provide the Professional Services.

3.7 In the event that Subscriber seeks to change the scope of Professional Services to be provided under any SOW (including, but not limited to, any changes to the project schedule described in the SOW), Subscriber shall discuss such proposed changes with Searchspring. If Searchspring elects to perform such changes to the Professional Services, the Parties shall work together in good faith to execute a Change Order. Searchspring shall be entitled to an adjustment in Fees pursuant to the changes reflected in the Change Order. Searchspring shall not be obligated to perform any differing or additional Professional Services unless the Parties have mutually agreed upon a written Change Order.

3.8 For SOWs that are deliverable/milestone based, upon delivery of all deliverables or completion of all milestones detailed in the SOW, Searchspring shall provide Subscriber with written notice (“Completion Notice”). Thereafter, Subscriber shall have five (5) days after the date of the Completion Notice to provide Searchspring with written notice describing any deliverables that have not been provided or milestones not met. The SOW shall be deemed complete and the deliverables accepted absent Subscriber’s timely written notice of any deliverables or milestones not having been met. For the avoidance of doubt, a Completion Notice shall not be necessary for SOWs that are Time and Materials based.

4. FEES & PAYMENT TERMS

4.1 Subscriber will pay Searchspring the fees to provide the Professional Services as detailed or described in an Order Form or SOW (the “Fees”). Unless agreed upon otherwise in the applicable SOW or Order Form, Searchspring shall invoice Subscriber for the Professional Services immediately upon the execution of the respective Order Form or SOW. All Fees are due and payable upon date of invoice, except for Fees that Subscriber disputes in good faith for reasons articulated in writing by Subscriber within thirty (30) days after receiving such invoice.

4.2 All Professional Services will be provided on either a time and materials or fixed-fee basis, as indicated in the applicable SOW. Each SOW providing for time and materials based Fees will contain a detailed estimate of such time and materials necessary for performance of Professional Services (“T&M Estimate”). Searchspring will make a commercially reasonable effort to provide such Professional Services within such T&M Estimate, up to the number of hours agreed to by the Parties. Searchspring will make a reasonable effort to notify Subscriber as soon as practicable if it appears that T&M Estimate may be exceeded. Upon receiving such amended T&M Estimate, Subscriber will assess, and accept or reject the amended T&M Estimate. Unless Subscriber rejects such amended T&M Estimate within five (5) days of delivery, such amended T&M Estimate shall be deemed accepted by Subscriber and Subscriber shall be liable for all Fees associated with Professional Services delivered in reliance on such amended T&M Estimate. Any amended T&M Estimate which is or is deemed accepted by Subscriber shall be deemed a Change Order.

4.3 The performance of Professional Services may be subject to a retainer to be paid in advance by Subscriber upon execution and delivery of the SOW. Such retainer will be applied against Fees which become payable by Subscriber. Searchspring may refuse to perform Professional Services unless and until such retainer is paid to Searchspring.

4.4 In addition to any and all Fees, Subscriber will reimburse Searchspring for any reasonable expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses, including change fees to travel and accommodations resulting from Subscriber’s request. incurred by Searchspring in connection with providing the Professional Services (“Expenses”). Searchspring will provide reasonable documentation for all Expenses as requested by Subscriber. Subscriber shall reimburse Searchspring for Expenses within thirty (30) days of submission of the Expenses to Subscriber by Searchspring.

4.5 Any unpaid Fees or Expenses will become overdue thirty (30) days after payment is due and shall be subject to a late fee of one and a half percent (1.5%) per month for each month where payment is not received.

4.6 Cancellation/Changes: Any cancellations/changes less than five (5) days prior to agreed Professional Services commencement date are subject to forfeiture of Fees paid and reserved date(s).

5. RELATIONSHIP OF THE PARTIES 

5.1 Searchspring is an independent contractor and will maintain complete control of and responsibility for its Professional Services Personnel, methods and operations in providing Professional Services. Searchspring at no time will hold itself out as an agent, subsidiary or affiliate of Subscriber for any purpose, including reporting to any government authority. The Agreement will not be construed so as to create a partnership, other joint venture or undertaking, or any agency relationship between the Parties, and neither Party shall become liable for any representation, act or omission of the other Party or have the authority to contractually bind the other Party. Any Fees, Expenses or other amounts paid by Subscriber to Searchspring hereunder shall not be considered salary for pension or wage tax purposes and neither Searchspring nor its Professional Services Personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of Subscriber, unless otherwise required by law. Subscriber shall not be responsible for deducting or withholding from Fees or Expenses paid for Professional Services any taxes, unemployment, social security or other such expense unless otherwise required by law.

6. WARRANTIES & LIMITATION OF LIABILITY

6.1 Searchspring hereby represents and warrants that:

1. the Professional Services provided pursuant to the Agreement will be performed in a timely and professional manner by Searchspring and its Professional Services Personnel, consistent with generally-accepted industry standards; provided that Subscriber’s sole and exclusive remedy for any breach of this warranty will be, at Searchspring’s option, re-performance of the Professional Services or termination of the applicable SOW and return of the portion of the Fees paid to Searchspring by Subscriber for the nonconforming portion of the Professional Services; and

1. it is under no contractual or other restrictions or obligations which are inconsistent with the execution of the Agreement, or, to its best knowledge, which will interfere with its performance of the Professional Services.

6.2 NOTWITHSTANDING SECTION 6.2 OF THE AGREEMENT, SEARCHSPRING’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY PROFESSIONAL SERVICES, SHALL IN NO EVENT EXCEED THE FEES PAID BY SUBSCRIBER UNDER THE APPLICABLE SOW. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 6.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF SEARCHSPRING WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. SEARCHSPRING HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE SUBSCRIBER WITH THE PROFESSIONAL SERVICES PROVIDED UNDER THE AGREEMENT.

6.3 The Parties hereby agree that:

CUSTOM PROGRAMMING THAT RESIDES WITHIN THE SEARCHSPRING SERVICE, FRONTEND SHOPPING UI CUSTOMIZATIONS, INTEGRATIONS, AND PROGRAMMING SCRIPTS THAT ARE IDENTIFIED AND BEING DELIVERED UNDER A SOW (COLLECTIVELY, “CUSTOMIZED DELIVERABLES”) ARE PROVIDED TO SUBSCRIBER “AS IS” AND SEARCHSPRING MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OR ANY REPRESENTATIONS TO SUBSCRIBER OR ANY THIRD PARTY REGARDING THE USABILITY, CONDITION, OPERATION OR FITNESS OF THE CUSTOMIZED DELIVERABLES. SEARCHSPRING SHALL NOT BE RESPONSIBLE, AT LAW OR OTHERWISE, FOR ANY CUSTOMIZED DELIVERABLES DESPITE ANY OTHER WARRANTIES OR GUARANTEES, IN THE EVENT THAT SUBSCRIBER MODIFIES ANY CUSTOMIZED DELIVERABLES IN A MANNER NOT INSTRUCTED BY SEARCHSPRING. SEARCHSPRING DOES NOT WARRANT THAT SUBSCRIBER’S OR ANY THIRD PARTY’S ACCESS TO OR USE OF THE CUSTOMIZED DELIVERABLES SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. SEARCHSPRING EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING CUSTOMIZED DELIVERABLES, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. FURTHER, SEARCHSPRING EXPRESSLY DISCLAIMS ANY RESPONSIBILITY TO SUPPORT OR MAINTAIN CUSTOMIZED DELIVERABLES AND WILL NOT DO SO UNLESS OTHERWISE AGREED BY THE PARTIES. THIS DISCLAIMER OF WARRANTY AND LIABILITY IS EXPRESSLY MADE IN ADDITION TO ANY DISCLAIMERS MADE BY SEARCHSPRING OR ITS AFFILIATES UNDER THE AGREEMENT WITH RESPECT TO THE SERVICES AS APPLICABLE TO SUBSCRIBER AND ANY THIRD PARTY’S USE OF THE SERVICES.

7. RIGHTS TO DELIVERABLES & OWNERSHIP

7.1 The Parties hereby agree that the specified Professional Services to be completed pursuant to any SOW primarily involve the configuration of Subscriber’s subscription to a Service and integration of Subscriber data with and into one or more Services using Pre-existing Technology, Developed Technology, and/or Generic Components (each as defined below). Unless otherwise expressly specified in a SOW, no deliverable provided in connection with the Professional Services provided pursuant to the Agreement shall constitute a “Work Made For Hire” under the Agreement. In the event that any such deliverable is held to be a Work Made For Hire, Subscriber hereby assigns to Searchspring all right, title and interest therein or to the extent such assignment is not permitted or effective, hereby grants to Searchspring a perpetual, irrevocable, exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to any such deliverable. Additionally, Searchspring shall have a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to incorporate into the Pre-existing Technology, Developed Technology, and/or Generic Components or otherwise use any suggestions, enhancement requests, recommendations or other feedback Searchspring receives from Subscriber.

7.2 Without limiting the foregoing, Searchspring and its licensors reserve and retain ownership of all Preexisting Technology, Developed Technology and Generic Components (each as defined below), and Searchspring hereby grants to Subscriber a non-exclusive, fully-paid, limited license to use Preexisting Technology, Developed Technology and Generic Components solely in connection with Subscriber’s use of the Service(s). “Preexisting Technology” means all of Searchspring’s inventions (including those of Searchspring’s Affiliates) (whether or not patentable), works of authorship, designs, know-how, ideas, concepts, information and tools in existence prior to the commencement of the Professional Services. “Developed Technology” means ideas (whether or not patentable) know-how, technical data, techniques, concepts, information or tools, and all associated Intellectual Property Rights thereto developed by Searchspring and its Affiliates or their Professional Services Personnel in connection with providing Professional Services pursuant to the Agreement that derive from, improve, enhance or modify Searchspring’s Preexisting Technology. “Generic Components” means all inventions (whether or not patentable), works of authorship, designs, know-how, ideas, information and tools, including without limitation software and programming tools developed by Searchspring and its Affiliates or their Professional Services Personnel in connection with providing Professional Services generally to support Searchspring’s product and/or service offerings (including, without limitation the Services) and which can be so used without use of Subscriber’s Confidential Information.