Terms and Conditions
Terms and Conditions
In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Platform and Access
1.1 Nacelle Platform. Nacelle offers its Progressive Web App eCommerce Platform (the “Platform”) which is described at https://getnacelle.com. Merchant acknowledges and agrees that the Platform may be upgraded or updated at any time during the Term (as defined in Section 3.1).
1.2 Access. Subject to Merchant’s compliance with the terms and conditions of this Agreement, Nacelle hereby grants Merchant a worldwide, non-exclusive, non-transferable, non-sublicensable: (i) right to use and access the portions of the Platform ordered by Merchant; and (ii) license to use, access and modify the source code of the Platform “front end” as made available by Nacelle to Merchant (“Platform Frontend”); and in each case, only during the Term and solely for Merchant’s internal business purposes in support of the Storefront(s) consistent with the intended use of the Platform as described in the then-current documentation made available by Nacelle for the Platform (“Documentation”).
2. Responsibilities and Restrictions
2.1 Restrictions. Except as expressly permitted by this Agreement, Merchant will not, and will not permit any third party (including Authorized Users) to, use the Platform in any manner beyond the scope of the rights expressly granted in this Agreement. Merchant will not at any time, directly or indirectly, and will not permit any third party to: (a) modify or create derivative works of the Platform, in whole or in part; (b) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Platform, in whole or in part; (c) sell, resell, rent or lease use of the Platform to any other third party, or otherwise allow the Platform to be used for any purpose other than for the benefit of Merchant and the Storefronts in accordance with this Agreement; (d) use the Platform to store, transmit, upload or post any infringing, libelous or otherwise unlawful or tortious material or any data (including any Merchant Content) for which it does not have the necessary consents or rights to store, transmit, upload or post (as applicable) in connection with the Platform; (e) interfere with, or disrupt the integrity or performance of, the Platform, or any data or content contained therein or transmitted thereby; (f) access or search the Platform (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Platform features provided by Nacelle for use expressly for such purposes; (g) use the Platform, Documentation or any other Nacelle’s Confidential Information to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Platform; (h) use the Platform in any way that exceeds any usage limitations as specified in any Documentation; or (i) delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on or included in the Platform or the Platform Output as delivered.
2.2 Authorized Users. Merchant will not permit any other third party to access, use or operate the Platform, except that Merchant may permit Authorized Users to access and use the Platform consistent with the terms of this Agreement; provided that Merchant will ensure that each such Authorized User complies with all applicable terms and conditions of the Agreement (including applicable privacy policies, acceptable use policies and terms and conditions which may be posted or made available through the Platform), and Merchant is fully and directly responsible to Nacelle for any act or omission by each such Authorized User in connection with their use of the Platform. Merchant will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Platform, and will promptly notify Nacelle if Merchant or any Authorized User knows or reasonably suspects that any user name and password has been compromised. Each account for access to and use of the Platform may only be accessed and used by the specific Authorized User for whom such account is created. Merchant will further ensure that no Authorized User misrepresents their identity or otherwise provides any deceptive or misleading profile information or images when creating an account in connection with the Platform. In this Agreement, “Authorized User” means any natural person that: (a) Merchant authorizes to use the Platform; and (b) to the extent applicable, signs up for an account to use the Platform in accordance with Nacelle’s then-current account registration procedures (including assent to any applicable terms of service posted by Company) as may be updated from time-to-time.
2.3 Third Party Software. The Platform may include, or may provide Merchant with access to, software, source code or other technology licensed to Nacelle from third parties, and which may be owned by such third parties (collectively, “Third Party Software”). Merchant acknowledges and agrees that Third Party Software is provided solely on an “AS IS” basis, and that Nacelle does not make any warranties or guarantees regarding Third Party Software and is not responsible for the operation or failure of, or any errors or bugs in, any Third Party Software.
2.4 Third Party Services. Certain features and functionalities within the Platform as Nacelle determines in its sole discretion may allow Merchant and its Authorized Users to interface or interact with, access and/or use compatible third party services, products, technology and content (collectively, “Third Party Services”) through the Platform. Merchant hereby acknowledges and agrees that: (a) Nacelle is not the provider of the Third Party Services and is not responsible for any compatibility issues, errors or bugs in the Platform or Third Party Services caused in whole or in part by the Third Party Services or any update or upgrade thereto; and (b) Merchant is solely responsible for maintaining the Third Party Services and obtaining any associated licenses and consents necessary to use the Third Party Services in connection with the Platform.
2.5 Acceptable Use. Merchant may not use the Platform: (a) in violation of this Agreement; (b) in a way that infringes on, violates, dilutes or misappropriates the intellectual property rights of any third party or any rights of publicity or privacy; (c) in violation of any law, statute, ordinance or regulation, unfair competition, anti-discrimination and/or false advertising); or (d) to engage in any illegal, offensive, indecent, inappropriate or objectionable conduct or content. Merchant may access the Platform only through the interfaces and protocols provided or authorized by Nacelle. Merchant may not access the Platform through unauthorized means, such as unlicensed software clients.
2.6 Merchant Content. “Merchant Content” means information and materials provided or made accessible to Nacelle by or on behalf of Merchant for the purpose of receiving or using the Platform, including personal data of consumers and other information collected through the Storefront. Merchant will: (a) provide Nacelle with the Merchant Content in the form and format requested by Nacelle, or as otherwise required to access and use the Platform; (b) be responsible for all Merchant Content; (c) ensure compliance with all laws, rules, and regulations applicable to its use of the Platform; and (d) obtain all waivers, consents and other rights necessary for Nacelle to use the Merchant Content to provide the Platform to Merchant.
2.7 Suspension, Limitation or Termination. Nacelle is entitled, without liability to Merchant, to immediately suspend, terminate or limit Merchant’s access to any or all part of the Platform at any time in the event: (a) that Nacelle reasonably suspects that the Platform is being used in violation of any applicable law or regulation or in a manner inconsistent with this Agreement or the Documentation; (b) that Nacelle determines that the Platform is being used in an unauthorized or fraudulent manner; (c) that Nacelle determines that the use of the Platform adversely affects Nacelle’s equipment or service to other Merchants; (d) Nacelle is prohibited by an order of a court or other governmental agency from providing the Platform; or (e) any other event which Nacelle determines, in its sole discretion, may create a risk to the Platform or to any other users of the Platform. Without limitation, Nacelle will have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Merchant’s right to use the Platform in accordance with this Agreement.
3. Term, Fees and Payment
3.1 Term. The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement, will continue in effect until the date set forth in the Order Form (the “Term”). The Term may be terminated earlier upon mutual agreement of the parties in writing, or in accordance with the terms of this Agreement.
3.2 Fees and Payment. In consideration for the Nacelle’s provision of the Platform, for each month during the term, Merchant will pay all fees set forth in the Order Form. If the fees are based on GMV, monthly visits, or other Merchant-provided data (as would be provided in an Order Form), Merchant will report such data to Nacelle immediately after the conclusion of each calendar month, and Nacelle will issue invoices to Merchant accordingly. Upon receipt of an invoice from Nacelle, Merchant will pay Nacelle all amounts set forth on any such invoice no later than thirty (30) days from the date of such invoice. All payments made under this Agreement to Nacelle will be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by Nacelle, or such other payment method mutually agreed by the parties, and will be non-refundable. Any amounts due to Nacelle hereunder and not paid when due will accrue late charges at the lesser of a rate of 1.5% per month or the highest rate permitted by applicable law. Merchant will reimburse Nacelle for all costs and expenses incurred (including attorneys’ fees) in collecting overdue amounts hereunder. Nacelle may, in its sole discretion, rely on the reports of Shopify or other platforms to calculate the basis upon which fees are calculated or independently verify such amounts as reported by Merchant.
3.3 No Set-Off. Neither party will have any right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other party under this Agreement for any reason.
3.4 Taxes. The fees described in Section 3.2 are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Merchant agrees to pay such taxes (excluding U.S. taxes based on Nacelle’s net income) unless Merchant has provided Nacelle with a valid exemption certificate. In the case of any withholding requirements, Merchant will pay any required withholding itself and will not reduce the amount paid to Nacelle on account thereof.
3.5 Audit. During the Term and for a period of two (2) years thereafter, Merchant will keep fully complete and accurate records related to Merchant’s compliance with this Agreement, including fees owed Nacelle, and upon five (5) days prior written notice from Nacelle, Merchant will permit technical and financial audits of its relevant systems and records by Nacelle and its subcontractors, to ensure Merchant’s compliance with its obligations under this Agreement. Unless required otherwise, audits shall be conducted at reasonable hours and during normal hours of operation. If an audit determines any: (a) non-compliance with the provisions of this Agreement or (b) that there is an underpayment to Nacelle for fees, then, in addition to any legal remedies or equitable relief that may be available to Nacelle, Merchant will be responsible for any audit fees and other related expenses incurred by Nacelle in exercising its audit rights as set forth in Section and will promptly correct any identified breach. Without prejudice to the foregoing, if an audit reveals an underpayment to Nacelle of the fees, Merchant will promptly pay Nacelle the underpaid amounts, Nacelle’s out of pocket audit fees, and an interest at 1% per month on the underpaid amount.
3.6 Termination. Without limiting any right or remedy available to either party, either party may terminate this Agreement, effective on written notice to the other party, if the other party breaches this Agreement, and such breach remains uncured for thirty (30) days or longer after the non-breaching party provides the breaching party with written notice of such breach.
3.7 Suspension. Without limiting Section 2.7, Nacelle may suspend its provision of, and Merchant’s access to, the Platform if Nacelle receives any notice or claim that any Merchant Content, or activities hereunder with respect to any Merchant Content, may infringe or otherwise violate any law or the rights of a third party.
3.8 Effect of Termination. Upon termination or expiration of this Agreement: (a) the license granted under Section 1.3 will terminate; (b) Merchant will, and will cause its Authorized Users to, immediately cease using the Platform, and will destroy all copies of all Documentation or other content provided by Nacelle hereunder; (c) Nacelle will have no further obligation to provide access to the Platform or Merchant Content; (d) Merchant will pay any unpaid fees; and (e) each party will return or destroy all copies of Confidential Information of the other party (in accordance with the other party’s direction).
3.9 Survival. Sections 2.1 (Restrictions), 2.2 (Authorized Users), 2.3 (Third Party Software), 2.4 (Third Party Services), 3.2 (Fees and Payment), 3.3 (No Set-Off), 3.4 (Taxes), 3.5 (Audit), 3.8 (Effect of Termination), 3.9 (Survival), 5 (Intellectual Property Rights), 6 (Confidentiality), 7 (Representations and Warranties), 8 (Indemnification), 9 (Limitation of Liability), 10 (Dispute Resolution; Arbitration Agreement; No Class Action) and 11 (General Provisions) are expressly intended to survive any expiration or termination of this Agreement.
4.1 Merchant Privacy Notice. Merchant will maintain, on each of the Storefronts, a privacy notice that appropriately describes Merchant’s use and disclosure of any information Merchant Content relating to an identified or identifiable natural person (“Personal Information”).
4.2 No Children. Merchant will not use the Platform: (a) in connection with any Storefront, application, advertisement or service directed towards children under the age of 17; and (b) to collect or process any Personal Information from children under the age of 17.
4.3 Nacelle Data Processing Terms. Where Nacelle processes Personal Information on behalf of Merchant, Nacelle shall:
(a) only process Personal Information as contemplated by this Agreement;
(b) ensure that Nacelle’s personnel authorized to process Personal Information have committed themselves to confidentiality;
(c) implement commercially reasonable technical and organizational measures designed to protect Personal Information. If Nacelle becomes aware of any unauthorized access, use, or disclosure of Personal Information, it will notify Merchant without undue delay. Where possible, such notice will include all available details required under applicable data protection laws for Merchant to comply with its own notification obligations to regulatory authorities and affected individuals;
(d) only engage subprocessors to process Personal Information where Nacelle has entered into a written agreement with such subprocessors imposing data protection obligations that are consistent with this Section 4.3. Where the subprocessor fails to fulfil such obligations, Nacelle shall remain fully liable to Merchant for the performance of that subprocessor’s obligations in accordance with applicable data protection laws. Nacelle shall notify Merchant of any new subprocessors in advance and allow Merchant ten (10) days to object. If Merchant has legitimate objections to the appointment of any new subprocessor, the parties will work together in good faith to resolve the grounds for the objection;
(e) provide reasonable assistance and comply with reasonable instructions from Merchant related to any requests from individuals exercising their rights in Personal Information under applicable data protection laws;
(f) assist Merchant in ensuring compliance with Merchant’s obligations pursuant to Articles 35 and 36 of Regulation (EU) 2016/679;
(g) delete or return all Personal Information following the expiry or termination of the Agreement upon request (excluding any back-up or archival copies which shall be deleted in accordance with Nacelle’s data retention schedule), except where Nacelle is required to retain copies under applicable laws, in which case Nacelle will isolate and protect that Personal Information from any further processing except to the extent required by applicable laws;
(h) make available to Merchant all information necessary to demonstrate compliance with the obligations set forth in this Section 4.3 and allow for and contribute to audits, conducted by Merchant or another auditor mandated by Merchant by completing a data protection questionnaire of reasonable length;
(i) ensure that any Personal Information originating in the European Economic Area, Switzerland, and/or the United Kingdom that is transferred by Merchant to Nacelle in a country that has not been found to provide an adequate level of protection under applicable data protection laws is processed in accordance with the European Commission Decision C(2010)593 Standard Contractual Clauses for Controllers to Processors (“Model Clauses”), the terms of which are herein incorporated by reference. Merchant and Nacelle agree that: (i) the audits described in Clause 5(f) and Clause 12(2) of the Model Clauses shall be carried out in accordance with Section 4.3(h) of this Agreement; (ii) pursuant to Clause 5(h) of the Model Clauses, Nacelle may engage new subprocessors in accordance with Section 4.3(d) of this Agreement; (iii) the subprocessor agreements referenced in Clause 5(j) and certification of deletion referenced in Clause 12(1) of the Model Clauses shall be provided by Nacelle only upon written request; and (iv) the optional clauses are expressly not included. Each party’s acceptance of this Agreement shall be considered a signature to the Model Clauses to the extent the Model Clauses apply hereunder. If required by the laws or regulatory procedures of any jurisdiction, the parties shall execute or re-execute the Model Clauses as separate documents; and
(j) to the extent legally permitted: (i) promptly notify Merchant in writing upon receipt of an order, demand, or document purporting to request, demand or compel the production of Personal Information to any third party, including, but not limited to the United States government for surveillance and/or other purposes; and (ii) not disclose Personal Information to the third party without providing Merchant at least forty-eight (48) hours’ notice, so that Merchant may, at its own expense, exercise such rights as it may have under applicable laws to prevent or limit such disclosure.
5. Intellectual Property Rights
5.1 Nacelle. Subject to Merchant’s compliance with the terms and conditions of this Agreement, Nacelle hereby grants Merchant a worldwide, non-exclusive, non-transferable, non-sublicensable license to use, reproduce, publicly display and publicly perform the Platform Output, only during the Term and solely in support of the Storefronts for Merchant’s internal business purpose consistent with the intended use of the Platform as described in the Documentation. Subject to the right and license granted to Merchant in Section 1.2 and this Section 5.1, Nacelle (and its licensors, where applicable) has and retains ownership of, and all intellectual property rights relating to, the Platform and the Platform Output, and any modifications, improvements or derivatives of the foregoing. “Platform Output” means all data, information and materials generated by the Platform based on the Merchant Content, but excluding any Merchant Content incorporated therein.
5.2 Merchant Content. Merchant hereby grants Nacelle a non-exclusive, worldwide, sublicensable, royalty-free right and license to use, reproduce, publicly display, publicly perform, modify, transmit, and make derivative works of the Merchant Content: (a) during the Term only, in connection with the operation and provision of the Platform; and (b) on a perpetual basis as incorporated into the Platform Output in connection with any business purpose (including for the purpose of improving and developing Nacelle’s current and future products, services, methods and processes). Subject to the foregoing, Merchant has and retains ownership of the Merchant Content, and any intellectual property rights therein.
5.3 Feedback. Merchant grants to Nacelle a perpetual, non-exclusive, worldwide, sublicensable, and royalty-free license to use, modify, distribute, and otherwise freely exploit any suggestions, ideas, enhancement requests, feedback, recommendations, or other information or ideas provided by Merchant or any third party on behalf of Merchant relating to the Platform or any of Nacelle’s current and future products and services.
5.4 Trademarks and References. Merchant hereby grants Nacelle a limited, non-exclusive, royalty-free license to use and display Merchant’s name, designated trademarks and associated logos (the “Merchant Marks”) in connection with: (i) the operation and maintenance of the Platform during the Term; and (ii) Nacelle’s marketing and promotional efforts for the its products and services, including by publicly naming Merchant as a client of Nacelle during or after the Term. Merchant agrees to participate in press announcements, case studies, trade shows, or other forms of publicity reasonably requested by Nacelle. All goodwill and improved reputation generated by Nacelle’s use of the Merchant Marks inures to the exclusive benefit of Merchant. Nacelle will use the Merchant Marks in the form stipulated by Merchant and will conform to and observe such standards as Merchant prescribes from time to time in connection with the license granted hereunder.
6.1 Confidential Information. “Confidential Information” of a party means all data and information that is submitted to or learned by either party in connection with this Agreement, including information relating to either party’s customers, technology, operations, facilities, products, systems, procedures, practices, research, development, employees, business affairs and financial information. Merchant Content is not Confidential Information, but is rather subject to Section 4 to the extent that it contains Personal Information. Without limiting the foregoing, the following will be deemed Confidential Information of (only) Nacelle: the Platform and the terms and conditions of this Agreement. Neither party may disclose, duplicate, publish, release, transfer or otherwise make available Confidential Information of the other party in any form to, or for the use or benefit of, any person or entity without the other party’s prior written consent, or use such Confidential Information for purposes outside the scope of this Agreement. Each party may disclose the Confidential Information of the other party only to its employees, consultants and agents who need to know such confidential information for the purposes of this Agreement. Each party will advise its employees, consultants and agents of their responsibilities under this Agreement and be responsible for any breach of this Section 6 by its employees, consultants or agents. Confidential Information will not include information that is: (a) part of, or becomes part of, the public domain (other than by disclosure by the receiving party in violation of this Agreement); (b) previously known to the receiving party without an obligation of confidentiality; (c) independently developed by the receiving party outside this Agreement; or (d) rightfully obtained by the receiving party from third parties without an obligation of confidentiality.
6.2 Exclusions/Remedies. The obligations in this Section do not restrict any disclosure by either party pursuant to any applicable law, or by order of any court or government agency (provided that the disclosing party will give prompt notice to the non-disclosing party of such order so that the non-disclosing party may seek a protective order or other appropriate remedy). In the event of a breach of this Section or other compromise of Confidential Information of which a party is or should be aware (whether or not resulting from a breach), such party will immediately notify the other party in writing detailing all information known to such party about the compromise, the Confidential Information affected, and the steps taken by such party to prevent the recurrence of such breach and to mitigate the risk to the other party. The parties agree that in the event of a breach or anticipated breach of this Section 6, the affected party will be entitled to seek injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief will be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
7. Representations and Warranties
7.1 Nacelle Representations and Warranties. Nacelle represents and warrants to Merchant that: (a) Nacelle has the necessary authority to enter into this Agreement and carry out its obligations hereunder; and (b) the Platform will conform in all material respects to the Documentation. Merchant’s sole and exclusive remedy, and Nacelle’s entire liability, for breach of this limited warranty will be correction of the warranty nonconformity of the Platform or, if Nacelle fails to do so within thirty (30) days after receiving written notice from Merchant after using reasonable commercial efforts, Merchant may terminate the nonconforming portion of the Platform. This limited warranty will not be valid to the extent the warranty nonconformity was caused by any acts or omissions by Merchant described in Section 8.1(I)-(V). Merchant must notify Nacelle in writing of any nonconformity of the Platform within thirty (30) days of discovery of such nonconformity in order to receive the above warranty remedies.
7.2 Merchant Representations and Warranties. Merchant represents and warrants to Nacelle that: (a) Merchant has the necessary authority to enter into this Agreement and carry out its obligations hereunder; (b) it has provided appropriate notice to individuals prior to or at the point of collecting Personal Information; (c) it will comply with all applicable laws in its use of the Platform and Platform Output, including all applicable data protection and privacy laws such as the EU General Data Protection Regulation (GDPR) and California Consumer Privacy Act (CCPA); (d) it has obtained and will obtain all necessary authorizations, lawful bases, consents, permissions and licenses with respect to any and all Merchant Content to the extent necessary: (i) for Merchant to grant the rights and licenses hereunder to Nacelle; (ii) for Merchant and Nacelle to comply with all applicable laws, rules and regulations; and (iii) for Merchant to grant the licenses contemplated by Section 5.2 without violating any third party intellectual property, privacy rights or any other proprietary rights; and (e) Nacelle’s use of Personal Information as contemplated by this Agreement will not violate any applicable laws.
7.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NACELLE MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND NACELLE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PLATFORM (INCLUDING THE PLATFORM OUTPUT) IS PROVIDED “AS IS,” WITHOUT ANY WARRANTY WHATSOEVER. NACELLE DOES NOT WARRANT THAT THE PLATFORM WILL BE CONTINUOUSLY AVAILABLE, ERROR-FREE OR SECURE, OR THAT ALL DEFECTS IN THE PLATFORM WILL BE CORRECTED. NACELLE WILL NOT BE LIABLE IN ANY WAY RELATED TO NON-NACELLE APPLICATIONS. NACELLE DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY PROVIDERS. WITHOUT LIMITING THE FOREGOING, MERCHANT ACKNOWLEDGES AND AGREES THAT NACELLE DOES NOT PROVIDE ANY FRAUD DETECTION SERVICES UNDER THIS AGREEMENT AND THAT NACELLE DOES NOT WARRANT THAT USE OF THE PLATFORM WILL HAVE ANY IMPACT ON MERCHANT’S SALES OR REVENUE. NACELLE’S ONLY OBLIGATIONS WITH RESPECT TO THE PLATFORM ARE EXPRESSLY STATED IN THIS AGREEMENT.
7.4 No Liability for Merchant Content. WITHOUT LIMITING THE GENERALITY OF SECTION 7.3, MERCHANT ACKNOWLEDGES THAT NACELLE IS NOT REQUIRED TO PRE-SCREEN OR MONITOR THE MERCHANT CONTENT. UNDER NO CIRCUMSTANCES WILL NACELLE BE LIABLE IN ANY WAY FOR ANY MERCHANT CONTENT OR PLATFORM OUTPUT, INCLUDING LIABILITY FOR ANY ERRORS, INACCURACIES, OR OMISSIONS THEREIN, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR BREACH OF THIS AGREEMENT OR APPLICABLE LAWS. MERCHANT ACKNOWLEDGES THAT IT IS RESPONSIBLE FOR MAINTAINING ADEQUATE SECURITY AND CONTROL OF ANY AND ALL IDS, PASSWORDS, HINTS, PERSONAL IDENTIFICATION NUMBERS (PINS), OR ANY OTHER CODES THAT MERCHANT USES TO ACCESS OR IN RELATION TO THE PLATFORM.
8.1 Indemnification by Nacelle. Nacelle will defend Merchant against any claim, demand, suit or proceeding made or brought against Merchant by a third party alleging that the use of the Platform in accordance with this Agreement violates, infringes or misappropriates a third party’s intellectual property rights (a “Claim Against Merchant”), and will indemnify Merchant from any damages, attorney fees and costs finally awarded against Merchant as a result of, or for amounts paid or payable by Merchant under a Nacelle and court-approved settlement of, a Claim Against Merchant, provided Merchant: (a) promptly gives Nacelle written notice of the Claim Against Merchant, (b) gives Nacelle sole control of the defense and settlement of the Claim Against Merchant (except that Nacelle may not settle any Claim Against Merchant unless it unconditionally releases Merchant of all liability for past infringements), and (c) gives Nacelle all reasonable assistance. If Nacelle receives information about an infringement or misappropriation claim related to the Platform, Nacelle may in its discretion and at no cost to Merchant: (i) modify the Platform so that it no longer infringes or misappropriates, (ii) obtain a license for Merchant’s continued use of the Platform in accordance with this Agreement, or (iii) terminate Merchant’s subscription for the Platform upon thirty (30) days’ written notice and refund Merchant any prepaid fees covering the remainder of the term of the terminated Platform, depreciated over three years on a straight-line basis. Nacelle will not have any obligations under this Section or any liability to the extent (A) a Claim Against Merchant arises from Merchant Content, a non-Nacelle application or Merchant’s breach of this Agreement, or (B) the Claim Against Merchant would not have arisen but for (I) Merchant’s combination or use of the Platform with non-Nacelle software, services or data, (II) modification of the Platform by anyone other than Nacelle, (III) Merchant's continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (IV) Nacelle’s customization of the Platform to meet Merchant’s particular specifications or instructions, or (V) Merchant’s use of the Platform in a manner not strictly in accordance with this Agreement.
8.2 Indemnification by Merchant. Merchant will defend Nacelle against any claim, demand, suit or proceeding made or brought against Nacelle by a third party alleging (a) that the Merchant Content (or Nacelle’s use thereof), or Merchant’s use of any Platform in breach of this Agreement, violates, infringes or misappropriates a third party’s intellectual property, privacy or other rights, or violates applicable law, (b) facts that, if true, constitute a breach of this Agreement by Merchant or acts or omissions by Merchant described in Section 8.1(I)-(V), or (c) any demand for compensation or benefits, or any other claim, related to Merchant’s use of or decision based on the Platform, except to the extent constituting grounds for a Claim Against Merchant (collectively, a “Claim Against Nacelle”), and will indemnify Nacelle from any damages, attorney fees and costs finally awarded against Nacelle as a result of, or for any amounts paid or payable by Nacelle under a court-approved settlement of, a Claim Against Nacelle, provided Nacelle (i) promptly gives Merchant written notice of the Claim Against Nacelle, (ii) gives Merchant sole control of the defense and settlement of the Claim Against Nacelle (except that Merchant may not settle any Claim Against Nacelle unless it unconditionally releases Nacelle of all liability), and (iii) gives Merchant all reasonable assistance.
8.3 Exclusive Remedy. This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of third-party claim described in Section 8.1.
9. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NACELLE BE LIABLE FOR ANY LOST DATA, LOSS OF REVENUE, ANTICIPATED PROFITS, LOST BUSINESS OR LOST SALES, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND EVEN IF NACELLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF NACELLE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, AMOUNTS PAID BY MERCHANT TO NACELLE IN THE 12-MONTH PERIOD PRECEDING THE INITIAL CLAIM GIVING RISE TO LIABILITY HEREUNDER.
10. Dispute Resolution; Arbitration Agreement; No Class Action
10.1 Dispute Resolution. The parties must submit all claims and issues arising from, relating to, or connected with this Agreement to binding arbitration (e.g., a contract breach claim, indemnification duty issue, and questions regarding an arbitrator’s authority) in accordance with this Section. A single arbitrator will conduct the arbitration in Los Angeles County, CA, and in accordance with the current Rules of Practice and Procedure of the Judicial Arbitration and Mediation Service (JAMS). The arbitrator is bound by strict rules of law and this Agreement’s terms (i.e., the arbitrator may not waive, change or equitably excuse any Agreement term, including ancillary documents (e.g., an amendment)). The arbitrator does not have the power to commit errors of law or legal reasoning, and a court may vacate or correct an arbitration award because of such errors. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs all issues arising from the arbitrability or the enforcement of the agreement to arbitrate, except for the requirements to apply California state law (but disregarding any principle of law that would cause the application of the law of any other jurisdiction or permit a court, as opposed to the arbitrator, to determine the applicability or validity of this agreement to arbitrate). The parties will equally share the arbitrators’ fees and other arbitration costs, regardless of outcome. The parties must submit or file any claim that would constitute a compulsory counterclaim (as defined by Rule 13 of the Federal Rules of Civil Procedure) within the same arbitration proceedings as the claim to which it relates; any such claim which is not submitted or filed will be barred. The arbitrator may only award damages and may only grant relief that is permitted by this Agreement. The arbitrator’s decision, award and relief will be conclusive and binding on the parties. Either party may enter the arbitrator’s decision, award and relief in any court having appropriate jurisdiction.
10.2 No Class Action. Arbitration may only be conducted on an individual, not a class wide, basis. No arbitration proceeding between the parties may be consolidated with any other arbitration proceeding involving Nacelle and any other person or entity. Each party shall file and prosecute arbitration proceedings separately and individually in the name of Merchant and Nacelle, and not in any representative capacity. Each party hereby irrevocably waives and agrees not to assert any claim inconsistent with this Section.
10.3 Governing Law. This Agreement, and any Dispute arising out of or related to this Agreement, will be governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of California, excluding its conflicts of law rules, regardless of Merchant’s country of origin or where Merchant accesses the Platform. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. All claims and issues arising from, relating to, or connected with this Agreement that an arbitrator determines are excluded from this Agreement’s arbitration requirements may only be filed and resolved by state or Federal courts located in Los Angeles County, California, and each party consents to the exclusive jurisdiction of those courts. Further, Nacelle may obtain injunctive or other equitable relief in any court of competent jurisdiction in the event of any infringement or threatened infringement of its intellectual property rights. Neither party will claim that an aforementioned court lacks personal jurisdiction, is an inconvenient forum or is an improper venue.
11. General Provisions
11.1 Force Majeure. Neither party will be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder (except for failure to timely pay) if such delay or default is caused by conditions beyond its reasonable control including acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), acts of terrorism, wars or insurrections.
11.2 Notices. Except as may be otherwise set forth herein, all notices, requests, demands and other communications hereunder will be in writing (including by email provided that delivery to the recipient is confirmed). Any hard copies of such communications will be deemed to have been duly given on the next day if delivered personally or sent by express courier to such party. All notices will be sent to the following address: If to Merchant, to the name and address contained in the Order Form or to the email address provided upon registration for the Platform. If to Nacelle:
Attn: Brian Anderson
520 Broadway, Floor 2
Santa Monica, CA 90401
Email: [email protected]
With a copy to
Fenwick & West LLP
Attn: Andrew Klungness
228 Santa Monica Boulevard
Santa Monica, CA 90401
Email: [email protected]
Such addresses may be changed by notice given by one party to the other pursuant to this Section.
11.3 Export Control. Merchant will not export or re-export, either directly or indirectly, any technical data, software, process, product, service, or system obtained from Nacelle, without first complying with the United States and all other applicable government laws and regulations governing the export, re-export, and import of those items.
11.4 Miscellaneous. Neither party may assign, delegate, or otherwise transfer its rights or obligations under this Agreement in whole or in part, except that either party may assign this Agreement in connection with a merger, acquisition, sale of a majority of its equity, sale of substantially all of its assets to which this Agreement relates, or a similar transaction. Nacelle may also freely engage subcontractors, such as third-party hosting providers. This Agreement will be binding upon and will inure to the benefit of the parties and their permitted successors and assigns. This Agreement constitutes the entire agreement, and supersedes any and all prior or contemporaneous representations, understandings and agreements, between the parties with respect to the subject matter of this Agreement, all of which are hereby merged into this Agreement. Without limitation, the terms of any other document, course of dealing, or course of trade will not modify this Agreement, except as expressly provided in this Agreement or as the parties may agree in writing. No amendment to this Agreement or waiver of any provision hereof will be valid or binding unless reduced to writing and duly executed by the party or parties to be bound thereby. Failure to promptly enforce a provision of this Agreement will not be construed as a waiver of such provision. Nothing contained in this Agreement will be deemed to create, or be construed as creating, a joint venture or partnership between the parties. Neither party is, by virtue of this Agreement or otherwise, authorized as an agent or legal representative of the other party. Except as otherwise set forth in this Agreement, neither party is restricted from doing business with any other person, entity or organization by virtue of this Agreement. Neither party to this Agreement is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf or in the name of the other party, or to bind such other party in any manner. Nothing contained in this Agreement will be deemed to create any third party beneficiary right upon any third party whatsoever. Each of the parties acknowledges that it has had the opportunity to have this Agreement reviewed or not by independent legal counsel of its choice. If any one or more of the provisions of this Agreement should be ruled wholly or partly invalid or unenforceable, then the provisions held invalid or unenforceable will be deemed amended, and the court or other government body is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein. The headings to Sections of this Agreement are for convenience or reference only and do not form a part of this Agreement and will not in any way affect its interpretation. Neither party will be afforded or denied preference in the construction of this Agreement, whether by virtue of being the drafter or otherwise. For purposes of this Agreement, the words and phrases “include,” “includes”, “including” and “such as” are deemed to be followed by the words “without limitation”. This Agreement may be executed in counterparts, each of which will constitute the same instrument. Facsimile or electronic signatures will be given the same effect and weight as originals.