Vendor Terms

Last updated and effective as of March 14th, 2019

TERMS AND CONDITIONS FOR VENDORS

These Terms and Conditions for Vendors (the “Terms”) constitute a legally binding agreement between you (including any business entity you are acting on behalf of, where applicable) (hereafter, “Vendor,” “you,” “your”) and StackSocial, Inc. (hereafter, “StackCommerce,” “Company”, “We,” “Us,” or “Our”). Together the Vendor and StackCommerce may be known as the “Parties.” The Terms govern your Vendor Agreement with StackCommerce and the use of and access to Our software, mobile applications, platform, services, and other offerings on Our Network of Sites. By signing a Vendor Agreement you acknowledge that you are authorized to enter into and agree to be bound by the Terms (“Effective Date”).

Definitions

Capitalized terms used but not otherwise deﬁned in the Agreement shall have the following meanings:

Agreement: means these Terms, associated Vendor Agreement, Promotional Agreement (including terms concerning duration, promotions, prices, quantities and shipping charges), Purchase Order, Consignment Order, Data Processing Agreement, Privacy Policy, and Vendor Success Guides. Collectively, the terms and conditions set forth in these documents represent the complete agreement between Vendor and StackCommerce relating to offer and sale of Vendor’s Product(s) through the Network.
Applicable Laws: means all federal, state and local laws, rules, regulations and order applicable to the Agreement, including, without limitation, (i) all privacy and data security regulations; (ii) the Credit Card Accountability, Responsibility, and Disclosure Act of 2009 and any applicable laws governing the imposition of expiration dates, service charges or dormancy fees, (iii) the Federal Trade Commission’s Mail or Telephone Order Merchandise Rule, (iv) any Applicable Laws that govern the advertising, offer, sale, shipment and/or delivery of goods and/or services, (v) any Applicable Laws that govern false, unfair or deceptive practices, and (vi) any Applicable Laws that govern escheat or abandoned or unclaimed property.
Network: means, singly or collectively as the context may require, any and all websites, applications, and platforms that are directly owned and operated by StackCommerce, any affiliated publisher websites and sub-domains, and any other affiliated websites as may be designated by StackCommerce.
Offering(s): means the Product(s) being sold on the Network Product(s): means the Vendor’s physical or digital goods that they wish to have StackCommerce offer and sell on the Network.
Promotional Price: means the price shown on site at the time of sale
Reserved Quantity: means total number of units of each Product(s) to be made available for sale by StackCommerce on the Network

1. Appointment of StackCommerce

During the Term (as defined in the Vendor Agreement), Vendor authorizes StackCommerce to market, offer, sell and distribute the Products, with the specific terms and conditions for each Product as set forth in the Promotional Agreement. StackCommerce agrees to offer, sell and distribute the Products on the Network, subject to the terms and conditions of the Agreement and Promotional Agreement.

2. General Terms of Offering

a. StackCommerce is authorized to promote and sell Product(s) on Vendor’s behalf subject to the terms of this Agreement. StackCommerce is authorized to promote and sell Product(s) on Vendor’s behalf through any platform, including website, applications, and platforms that are directly owned and operated by StackCommerce, any affiliated publisher website and sub-domains, and any other affiliated websites as may be designated by StackCommerce.

b. StackCommerce reserves the right, without notice and in its sole discretion, to determine all promotional details for all Product(s) on the Network. StackCommerce may at any time change or modify any or all Product(s) promotions, including but not limited to, Product(s) details, drawings, specifications and pricing.

c. StackCommerce reserves the continuing right, but shall not be obligated, to reject, revise, or discontinue publishing any Offering, and to require the Vendor to edit or modify any Offering for any reason, including, without limitation, to conform such Offering to StackCommerce specifications and/or Applicable Laws.

d. StackCommerce reserves the right, without notice and in its sole discretion, to terminate any publication or promotion of any Offering at any time and for any reason in StackCommerce’s sole discretion, and to terminate any and all Promotions and to remove all references to the Offering(s) from the Network; and redirect or delete any URL used in connection with the Offering(s).

e. StackCommerce is authorized to promote and sell up to the Reserved Quantities in multiple markets and on dates in its discretion.

f. During the time of promotion, Vendor shall have readily available for StackCommerce the Reserved Quantities for all Product(s) as set forth in the Promotional Agreement. The Reserved Quantities are to be held exclusively for StackCommerce and are not to be made available for other retailers. The Reserved Quantities set forth in the Promotional Agreement are binding to the Vendor, and do not constitute a commitment on the part of StackCommerce to purchase. The Reserved Quantities for any Offering may be increased by mutual agreement between the Parties including via exchange of email or written correspondence. In the event that Reserved Quantities are increased, all other details of the Agreement will remain valid and binding for the duration of the Term, unless otherwise negotiated. Failure to meet orders up to the total Reserved Quantities may result in fees or chargebacks in accordance with the Vendor Success Guides.

g. Vendor agrees that in providing the Offering(s), Vendor will not inflate prices or impose any additional fees, charges, conditions or restrictions that contradict or inconsistent with the terms stated on the Offering(s). Unless otherwise disclosed, Vendor further agrees not to impose different terms or a different cancellation policy than what is stated on the Offering(s).

h. Vendor is responsible for all customer service in connection with the Offering and for supplying all goods and services stated in the Offering. Vendor is the seller of the Offering and, once StackCommerce distributes the Product(s), Vendor shall be solely responsible for all customer service in connection with fulfilling the Offering and/or supplying the Product(s). In performing its customer service duties in connection therewith, Vendor shall use its best efforts to timely resolve any reasonable customer complaints in a manner that preserves StackCommerce’s good reputation and best interests. The Vendor Success Guide provides additional terms regarding Vendor’s customer service responsibilities and shall govern in the event of conflict with the Promotional Agreement or these Terms.

3. Payment

a. Amounts retained by StackCommerce from the proceeds of the Offering are compensation to StackCommerce for marketing, promoting, and advertising the Offering and distributing the Product(s) on behalf of the Vendor. StackCommerce is authorized to review Vendor’s credit history, which may include a soft credit check.

b. A third party payment processor may be used by StackCommerce to process payments. In some instances, the third party will require additional personal identifying information to comply with Applicable Laws. Fees for transferring funds may be deducted from payments to the Vendor. Fees may vary by payment method and payment amount, and may be changed at any time. In the state of California, Tipalti is the third party payment processor and by signing up with StackCommerce you agree to Tipalti’s Payee Agreement and Privacy Policy.

c. Vendor will not attempt to bill or collect reimbursement from any third-party payor, including but not limited to any insurer, health insurance plan, Medicare, Medicaid, or any other federal, state, provincial, territorial or local governmental program or entity (“Third-Party Payor”), for any of Vendor’s services. Vendor will accept the amounts received from StackCommerce as payment in full for all services provided by Vendor delivered pursuant to the Offering. Vendor is solely responsible for complying with any contractual requirements imposed by its contracts with Third-Party Payors, including but not limited to requirements related to offering discounted services.

d. Tax Levy. In the event StackCommerce receives written notice of a validly issued state or federal tax levy relating to past-due taxes owed by Vendor, StackCommerce may, in accordance with applicable law, deduct any such amounts from payments due to the Vendor.

e. Taxes Generally. It is Vendor’s responsibility to determine what, if any, taxes apply to the payment Vendor makes or receives and it is Vendor’s responsibility to collect, report and remit the correct tax to the appropriate tax authority. Vendor may be asked to provide StackCommerce with a valid Tax Identification Number for tax reporting purposes. An IRS Form 1099 may be issued in Vendor’s name for the value of payments made. Notwithstanding anything else in this Agreement, Vendor shall be, and will remain, registered for sales, use and other similar tax collection purposes in all states and localities in which Vendor is required to be so registered in connection with the Offering and pursuant to the terms and redemption of the Product(s). Vendor is responsible for identifying their tax obligation in addition to the calculation, remittance, and reporting of all taxes within their obligation. In some circumstances, StackCommerce may, as is consistent with the applicable law, calculate, collect, and remit applicable national, state, or local sales and use taxes, goods, and services taxes (GST), or value added taxes (VAT) (collectively "Taxes") on orders destined to specific locations.

f. Notwithstanding anything to the contrary, StackCommerce will have no obligation to advance amounts that have been paid to StackCommerce by a purchaser until Vendor has complied with Vendor’s obligations under this Agreement. If StackCommerce reasonably believes that Vendor has breached any provision of this Agreement, StackCommerce may offset, delay, withhold, or suspend future payments to Vendor, in StackCommerce’s sole discretion. In addition, if Vendor is unwilling to, or in StackCommerce’s reasonable discretion appears unable to, perform its obligations under this Agreement, StackCommerce is authorized to offset, delay, withhold, or suspend future payments to Vendor in addition to such other remedies as may be available under this Agreement or at law, to secure payment from Vendor for any refunds and/or other amounts payable by Vendor under this Agreement.

g. StackCommerce shall remit payment to the Vendor according to the Payment Terms set forth in the Agreement. So long as Vendor has fully and properly fulﬁlled its obligations, StackCommerce shall pay Vendor the "Remittance Amount" for each purchased and shipped Product(s) (or delivered redemption code for digital Product(s)) as long as the Purchaser has neither returned the underlying Product(s) to Vendor nor received a refund from StackCommerce in connection with the Offering as of the date of payment.

4. Customer Data Restrictions

a. “Customer Data” (hereafter “User Data”) means all identifiable information about purchasers generated or collected by StackCommerce or Vendor, including but not limited to, purchaser’s name, shipping addresses, email addresses, phone numbers, purchaser preferences and tendencies, and financial transaction data.

b. Vendor may use, and may authorize its Third Party Vendor to use, User Data for the sole purpose of fulfilling its obligations under the Agreement. Vendor expressly agrees that any User Data that may be provided hereunder is being provided solely to fulfill its obligations under the Agreement, and may not be used to enhance a file or marketing list owned by Vendor, any Third Party Vendor or any other third party. Vendor represents, warrants and covenants that it will not, nor will it permit any Third Party Vendor to, resell, broker or otherwise disclose any User Data to any third party, in whole or in part, for any purpose whatsoever. Vendor agrees that it will not copy or otherwise reproduce any User Data other than for the purpose of fulfilling its obligations under the Agreement. If Vendor engages any Third Party Vendor to facilitate its redemption obligations hereunder, Vendor shall ensure that such Third Party Vendor implements and complies with reasonable security measures in handling any User Data. If any User Data is collected directly by Vendor or a Third Party Vendor, Vendor shall ensure that it or such Third Party Vendor adopts, posts and processes the User Data in conformity with its posted privacy policy.

c. For purposes of the Agreement, the restrictions set forth herein on Vendor’s use of User Data do not apply to: (a) data from any customer who is already a customer of Vendor prior to the effective date of the Agreement, to the extent such data was previously provided to Vendor by such customer independent of the Agreement or any transaction hereunder; or (b) data supplied by a customer directly to Vendor who becomes a customer of Vendor in connection with such customer explicitly opting in to receive communications from Vendor for the purposes for which such User Data will be used by Vendor; provided that Vendor handles and uses such User Data in compliance with Applicable Laws and Vendor’s posted privacy policy.

d. Vendor shall immediately notify StackCommerce if Vendor becomes aware of or suspects any unauthorized access to or use of Customer Data or any confidential information of StackCommerce, and shall cooperate with StackCommerce in the investigation of such breach and the mitigation of such damages. Vendor will bear all associated expenses incurred by StackCommerce to comply with applicable laws (including, but not limited to, any data breach laws) or arising from any unauthorized access or acquisition of Customer Data while such data is in Vendor’s reasonable possession or control. Upon termination or expiration of this Agreement, Vendor shall, as directed by StackCommerce, destroy or return to StackCommerce all the Customer Data in Vendor’s or any agent of Vendor’s possession.

5. Promotional Programs

In an effort to incentivize Product sales, Vendor authorizes StackCommerce, at any time and in StackCommerce’s sole discretion, to increase or decrease the Promotional Price for the Vendor Offering (any such effort, “Promotional Program(s)”). For each Product(s) sold as part of a Promotional Program, the Net Remittance Amount may be adjusted in an amount equal to the percentage increase or decrease in the Amount Paid (“Promotional Adjustment”), provided that, any decrease of the Net Remittance Amount will not exceed the maximum Promotional Adjustment specified in the “Payment Terms” section of the Vendor Agreement. Promotional Programs include the following:

a. Promotional Codes – A “Promotional Code” is a code that purchasers may use, in StackCommerce’s sole discretion, to receive a discount on the Amount Paid for an Offering.

b. Price Optimization – “Price Optimization” is any change (excluding Promotional Codes) to the Amount Paid for an Offering.

6. Featured Promotion & Other Optional Marketing Programs

Vendor may purchase a Featured Promotion from StackCommerce that guarantees certain email, editorial, site, SEO or other placement. Pricing for Featured Promotions will vary based on the type of promotion desired, amount of estimated impressions, and time of placement. Vendor may also participate in additional optional marketing programs that involve paid advertising and require the Vendor to cover a portion of the paid advertising costs. StackCommerce makes no express or implied guarantees regarding the performance or conversion of Featured Promotions or other optional marketing programs. Featured Promotions and other optional marketing program payments will typically be due in advance of the placement or within 15 days of the advertisement going live. Vendor’s failure to remit timely payment may result in the cancellation of the Featured Promotion, at StackCommerce’s sole discretion.

7. Term & Termination

This Agreement shall become effective as of the execution date of the Vendor Agreement and will continue in effect until terminated by either party in accordance with this Section (“Term”). StackCommerce is authorized to terminate this Agreement, at any time for any reason, upon written notice to the Vendor. Vendor is authorized to terminate this Agreement upon ten (10) business days prior written notice to StackCommerce. The termination or expiration of this Agreement will not in any way affect Vendor’s obligation to provide and/or deliver Product(s) or other obligations according to the terms of this Agreement. Provisions in this Agreement that are intended to survive termination will continue in full force and effect after the Term.

8. Intellectual Property Rights and License

a. Vendor grants to StackCommerce a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: (a) Vendor’s name, logos, trademarks, service marks, domain names, and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved to use by Vendor (collectively, “Vendor IP”); and (b) any third party’s name, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text and any other content provided, specified, recommended, directed, authorized or approved for use by Vendor (collectively, “Third Party IP”), in each case in connection with the promotion, sale/resale (as may be applicable) or distribution of the Vendor Offering in all media or formats now known or hereinafter developed (“License”). Any use of the Vendor IP or Third Party IP as contemplated in this Agreement is within StackCommerce’s sole discretion.

b. Vendor acknowledges and agrees that, as between the parties, StackCommerce owns all interest in and to the Website, Customer Data, StackCommerce trade names, logos, trademarks, service marks, domain names, social media identifiers, all data collected through or from the Website, all audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text or any other content created by StackCommerce or at StackCommerce’s direction, or assigned to StackCommerce, and any materials, software, technology or tools used or provided by StackCommerce to promote, sell/resell (as may be applicable) or distribute the Vendor Offering and conduct its business in connection therewith (collectively “StackCommerce IP”). Vendor shall not use, sell, rent, lease, sublicense, distribute, broadcast, transmit, stream, place shift, transfer, copy, reproduce, download, time shift, display, perform, modify or timeshare the StackCommerce IP or any portion thereof, or use such StackCommerce IP as a component of or a base for products or services prepared for commercial use, sale, sublicense, lease, access or distribution, except that StackCommerce grants Vendor a limited, non-exclusive, revocable, non-transferable, non-sub licensable license during the Term to use one copy of StackCommerce’s mobile Vendor software application on a single mobile computer, tablet computer, or other device, solely for the purposes permitted by that software, and to make one copy of the software for back-up purposes. Vendor shall keep the StackCommerce IP confidential, and shall not prepare any derivative work based on the StackCommerce IP or translate, reverse engineer, decompile or disassemble the StackCommerce IP. Vendor shall not take any action to challenge or object to the validity of StackCommerce’s rights in the StackCommerce IP or StackCommerce’s ownership or registration thereof. Except as specifically provided in this Agreement, Vendor and any third party assisting Vendor with its obligations in this Agreement, are not authorized to use StackCommerce IP in any medium without prior written approval from an authorized representative of StackCommerce. Vendor shall not include any trade name, trademark, service mark, domain name, social media identifier, of StackCommerce or its affiliates, or any variant or misspelling thereof, in any trademark, domain name, email address, social network identifier, metadata or search engine keyword. Vendor shall not use or display any StackCommerce IP in a manner that could reasonably imply an endorsement, relationship, affiliation with, or sponsorship between Vendor or a third party and StackCommerce. All rights to the StackCommerce IP not expressly granted in this Agreement are reserved by StackCommerce.

c. If Vendor provides StackCommerce or any of its affiliates with feedback, suggestions, reviews, modifications, data, images, text, or other information or content about a StackCommerce product or service or otherwise in connection with this Agreement, any StackCommerce IP, or Vendor’s participation in the Vendor Offering or Product, (collectively, “Feedback”), Vendor irrevocably assigns to StackCommerce all right, title, and interest in and to Feedback. In the event your assignment to StackCommerce is invalid for any reason, you hereby irrevocably grant StackCommerce and its affiliates a perpetual, paid-up, royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (i) use, reproduce, perform, display, and distribute Feedback; (ii) adapt, modify, re-format, and create derivative works of Feedback for any purpose and sublicense the foregoing rights to any other person or entity. Vendor warrants that: (A) Feedback is Vendor’s original work, or Vendor obtained Feedback in a lawful manner; and (B) StackCommerce and its sublicensees’ exercise of rights under the license above will not violate any person’s or entity’s rights, including any copyright rights. Vendor agrees to provide StackCommerce such assistance as StackCommerce might require to document, perfect, or maintain StackCommerce’s rights in and to Feedback.

9. Confidentiality

Vendor agrees to keep confidential (a) the terms of the Agreement, (b) any materials, documents or information designated by the StackCommerce as "confidential" or with a similar designation, (c) all Customer Data, and (d) any materials, documents or information that Vendor should reasonably expect to be confidential or proprietary under the circumstances and/or given the nature of the materials, documents or information (collectively, "Confidential Information"). Vendor shall take reasonable precautions to protect all Confidential Information, and will only disclose Confidential Information to its employees on a need-to-know basis. Vendor may disclose Confidential Information to a Third Party Vendor (as defined below) if such Third Party Vendor has signed a confidentiality agreement that requires it to protect the Confidential Information in at least the same manner specified in the Agreement. If Vendor becomes aware of any unauthorized use or disclosure of Confidential Information, Vendor shall promptly and fully notify StackCommerce of all facts known to it concerning such unauthorized use or disclosure and shall cooperate with StackCommerce so that StackCommerce may seek a protective order or other appropriate remedy to protect such Confidential Information. Vendor will bear all associated expenses incurred by StackCommerce to comply with Applicable Laws including, but not limited to, any data breach laws) or arising from any unauthorized access or acquisition of Confidential Information while the same is in Vendor’s or a Third Party Vendor’s possession or control. Upon StackCommerce’s written request, Vendor shall return to StackCommerce or destroy, at StackCommerce’s option, all Confidential Information in Vendor’s or any Third Party Vendor’s possession or control. Vendor acknowledges and agrees that a breach of its confidentiality obligations under the Agreement will entitle StackCommerce to injunctive relief and a decree for specific performance, and any other relief allowed under Applicable Law. Without limiting the foregoing, Vendor agrees that it shall not issue any press release or other public statement relating to its relationship with StackCommerce or the Agreement without the express prior written consent of StackCommerce.

10. Representations, Warranties, and Covenants

Vendor represents and warrants that: (a) Vendor has the right, power and authority to enter into this Agreement; (b) Vendor, if required by applicable law, is registered for sales and use tax collection purposes in all jurisdictions where Vendor’s goods and services will be provided; (c) the Product, upon being delivered by StackCommerce, will be available immediately for purchase and/or redemption and Vendor will have sufficient goods and/or services available to fulfill its obligations in connection with the applicable Reserved Quantities; (d) the terms and conditions of the Product, including any discounts or goods and services offered thereunder do not and will not violate any, local, state, provincial, territorial or federal law, statute, rule, regulation, or order, including but not limited to, any law or regulation governing the use, sale, and distribution of alcohol and any laws governing Products, gift cards, coupons, and gift certificates; (e) The MSRP of the Product is accurate and Vendor will keep StackCommerce updated during the duration of the term to any changes in the MSRP; (f) Vendor will promptly fulfill its redemption obligations hereunder with respect to purchased Products, including, without limitation, shipping the purchased Products to each Purchaser by the Ship-by Date and will meet its reporting obligations hereunder within the time frames set forth hereunder, and the information contained therein and provided to StackCommerce will be complete and accurate; (g) If Vendor is unable to fulfill its obligations under the Agreement or to any User for any reason, it will immediately notify StackCommerce and such User and take prompt action to remediate such failure; (h) Vendor will immediately notify StackCommerce if any of Vendor’s representations, warranties or covenants contained herein becomes inaccurate or untrue in any material respect during the Term; (i) Vendor: (1) has, and shall maintain at Vendor’s expense and at all times during the Term, all types of liability insurance policies, with coverage in amounts that are customary for Vendors or service providers in Vendor’s trade area, consistent with best industry practices and sufficient to fully comply with Applicable Laws and fulfill Vendor’s obligations under the Agreement; and (2) upon StackCommerce’s request, shall provide proof of its maintenance of such policies and provide confirmation that StackCommerce will be a named insured or otherwise covered by such policies in the event of a claim arising under or in relation to the Agreement; (j) the Vendor’s redemption of the Product will result in the bona fide provision of goods and/or services by Vendor to the purchaser; (k) Vendor owns all interest in and to the Vendor IP and has licensing rights in (with the right to sublicense to StackCommerce) the Third Party IP, and has the right to grant the License stated in this Agreement; (l) the Vendor IP and the Third Party IP, the Vendor Offering, StackCommerce’s use and promotion thereof, and the results of such Vendor Offerings, will not infringe, dilute, misappropriate, or otherwise violate, anywhere in the world, any patent, copyright, logo, trademark, service mark, trade name, rights in designs, or other intellectual property right or right of privacy or publicity of any third party or any applicable law, and does not and will not result from the misappropriation of any trade secret or the breach of any confidentiality obligations to any person or entity; (m) the Vendor IP and Third Party IP does not include any material that is unlawful, threatening, abusive, defamatory, vulgar, obscene, profane or otherwise objectionable, or that encourages conduct that constitutes a criminal offense, gives rise to civil liability or otherwise violates any law; (n) the Products and any advertising or promotion of Vendor’s goods and services relating thereto will not constitute false, deceptive or unfair advertising or disparagement under any applicable law; (o) Vendor and its employees, contractors and agents have had the proper education and training and hold all required and up-to-date regulatory authorization, licenses and certifications relating to any Offering to provide the goods or services described in this Agreement; (p) Vendor’s business information and direct deposit details as provided in this Agreement, indicating where payments should be forwarded are accurate and Vendor is the authorized entity to receive the funds forwarded by StackCommerce; (q) Vendor is not authorized to resell, broker or otherwise disclose any Customer Data (as defined in this Agreement) to any third party, in whole or in part, for any purpose, and Vendor is not authorized to copy or otherwise reproduce any Customer Data other than for the purpose of redeeming or verifying the validity of Products in connection with this Agreement; (r) the Vendor Offering is: (i) free from defects in workmanship, materials and design, (ii) Vendorable and suitable for the purposes, if any, stated in the Agreement, and (iii) genuine, bona fide products, as described herein and does not violate the rights of any third party.

11. Indemnification

Vendor agrees to defend, indemnify and hold harmless StackCommerce, its officers, directors, employees, shareholders, affiliates, agents and publishers from and pay the final judgment or settlement and all associated costs (including all court costs and reasonable attorneys’ fees) in connection with (a) Data Processing Agreement; (b) any action, claim or demand arising out of or relating to the Products provided by Vendor, including but not limited to, claims for false advertising, intellectual property infringement (including copyright, patent or trademark), product defects, personal injury, death or property damage and (c) any breach by Vendor of any representation, warranty, covenant, obligation or other term of this Agreement; provided that StackCommerce (i) promptly gives written notice of the claim to Vendor, (ii) allows Vendor or Vendor’s insurance carrier (as applicable) to select reasonable counsel to defend StackCommerce. (iii) allows Vendor to settle such a claim with a third party claimant (provided that Vendor is solely responsible for paying any monetary sums and obtains an unconditional release of StackCommerce in connection therewith), (iii) provides to Vendor all reasonably available information and reasonable assistance, and (iv) has not compromised or settled such claim.

12. Limitation of Liability

Except for Vendors breach of the Data Protection Agreement or breach of its confidentiality obligations and its indemnification requirements neither party shall be liable for any incidental, consequential, exemplary, special or indirect damages (including, but not limited to, loss of profits, revenues, data and/or use), even if advised of the possibility thereof. A party’s total liability under this Agreement shall not exceed the fees paid by StackCommerce to Vendor during the six (6) month period prior to any such liability.

13. Term Updates

StackCommerce, subject to the provisions of this paragraph, may amend the Agreement in its sole discretion and at any time. The most recent version of the Terms and Conditions and Vendor Success Guides (as may be amended by StackCommerce from time to time) will be available: (i) on the vendor portal, and/or (ii) on this page, and/or (iii) as a part of a Vendor Newsletter. Vendor agrees that these notifications methods constitute adequate notice to inform Vendor of any amendments to the Agreement and Vendor further agrees to be bound by any such amendments to the Agreement. Changes will become effective immediately upon being posted on the site. Any sales of Vendor Product(s) made after any change becomes effective shall mean that Vendor accept those changes. Vendor should visit the site regularly to ensure Vendor is familiar and aware of the latest version of the Terms. Notwithstanding the preceding sentences of this section, no revisions to these Terms will apply to any dispute between Vendor and StackCommerce that arose prior to the date of such revision.

14. Vendor Success Guide

Vendor must comply with StackCommerce Vendor Success Guide at all times. The Vendor Success Guide is available on the StackCommerce Partner Portal. In the event of any inconsistency or conﬂict between or among this Agreement and the Vendor Success Guide, the terms and conditions of the Vendor Success Guide shall govern and control.

15. Other

a. Entire Agreement. These Terms, together with the Vendor Agreement, Promotional Agreement, and Vendor Success Guide, constitutes the entire agreement between the Parties relating to the subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. This Agreement may be amended or modified only by mutual written agreement of authorized representatives of the Parties.

b. Notices. Any notice required or permitted hereunder shall be provided in writing, and shall be deemed delivered when: (a) delivered by email to a valid email address of the applicable Party, or (b) actually received or rejected by the designated addressee or, if earlier and regardless of whether or not actually received, when deposited in (i) the United States mail, postage prepaid, certified mail, return receipt requested, or (ii) a regional or national overnight courier service, addressed to the applicable Party at the address set forth in the preamble of the Agreement.

c. No Partnership or Joint Venture. The Parties are independent contractors, and nothing contained herein will be construed to create a partnership or joint venture between StackCommerce and Vendor or to make either StackCommerce or Vendor an agent of the other party hereto for any purpose. Neither Party has the authority, without the other Party’s prior written approval, to bind or commit the other Party in any way.

d. Force Majeure. Whenever a period of time is herein prescribed for action to be taken by StackCommerce, StackCommerce shall not be liable or responsible for, and there shall be excluded from the computation of any such period of time, any delays due to strikes, riots, acts of God, war, governmental laws, regulations or restrictions or any other causes of any kind whatsoever which are beyond the reasonable control of StackCommerce.

e. Waiver; Severability. Any waiver of a provision of the Agreement must be in writing, expressly identify the provision to be waived and signed by authorized representatives of the Parties. The consent or approval by a Party to or of any act by the other Party requiring such consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act. A Party’s failure, whether single or repeated, to exercise a right hereunder shall not be deemed to be a waiver of that right and a Party’s delay in exercising a right shall not be deemed a waiver of that or any future right. If any of the provisions of the Agreement are held by a court of competent jurisdiction to be unenforceable or invalid, then such provisions will be ineffective to the extent of the court’s ruling. All remaining portions of the Agreement shall remain in full force and effect.

f. Interpretation. Each Party acknowledges that the Agreement (including the specific terms embodied by the Vendor Agreement and Promotional Agreement) is the result of thorough negotiations, multiple drafts and modifications and each Party hereto has consulted with, and been advised by, independent legal counsel in connection with the Agreement. There shall be no presumption of interpretation made against either Party hereto as draftsman of the Agreement. The headings in the Agreement are inserted for convenience of reference only and are not to be considered in the interpretation or construction of the provisions hereof.

g. Multiple Counterparts; Electronic Transmission. The Agreement may be executed in one or more counterparts, each of which may be executed and transmitted by facsimile or other electronic method, and each of which shall be deemed an original, but both of which shall constitute one and the same instrument.

h. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, STACKCOMMERCE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF VENDORABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. STACKCOMMERCE DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES OFFERED ON OR THROUGH THE WEBSITE SHALL BE UNINTERRUPTED OR ERROR-FREE, THAT THE VOUCHERS WILL BE ERROR-FREE, THAT ANY ERRORS, OMISSIONS OR MISPLACEMENTS IN THE VOUCHER WILL BE CORRECTED, OR THAT THE PROMOTION OF THE VENDOR OFFERING OR THE VOUCHERS WILL RESULT IN ANY REVENUE OR PROFIT FOR VENDOR.

i. Choice of Law and Venue. The Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A. without regard to its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply hereto.

j. Dispute Resolution. Any dispute or controversy arising out of, relating to, or concerning any interpretation, construction, performance, or breach of this Agreement, will be settled by arbitration to be held in Los Angeles, California in accordance with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in the dispute or controversy. The decision of the arbitrator will be final, conclusive, and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. The prevailing party shall be entitled to recover from the non-prevailing party the prevailing party’s actual attorneys’ fees and costs (including, without limitation, all taxable and non-taxable costs, and all fees and costs to determine the amount of fees and costs to be awarded) incurred in connection with arbitration and enforcement of the judgment. No dispute may be brought by either party eighteen (18) months after the termination or expiration of this Agreement.

k. Waiver or Right to Jury Trial. Each Party acknowledges and, waives its right to a jury trial for all disputes relating to all aspects of the Agreement as set forth above.

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