Unless otherwise stated, the following capitalized terms when used in these terms and conditions (“TCs”), Order Forms, and/or other exhibits shall have the definitions outlined in this section.
1.1. “Affiliates”: each or any other person who for the time being directly or indirectly Controls (as defined herein) is Controlled by or is under common Control with such person.
1.2. “Control”: either (a) holding the majority of the voting rights or share capital of such person; or (b) otherwise having the power to direct the management and policies of such person.
1.3. “Representative”: employees, officers, directors, owners, managers, members or agents.
1.4. “Merchant”: the entity outlined in the Order Form (as defined herein) to receive Subscription Services.
1.5. “Aggregate Data”: any data that is derived or aggregated in deidentified form from (i) any Merchant Materials; (ii)Merchant’s and/or its Authorized Users’ Use of the Subscription Services; and/or (iii) Merchant Personal Data.
1.6. “Company Data”: means data that Merchant obtains via the Subscription Services, including (i) information relating to the Company API interactions; (ii) information Company uses for security or fraud prevention; and (iii) all aggregated information Company generates from and in relation to the Subscription Services.
1.7. “Company IP”: the Subscription Services, the underlying software, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Subscription Services, Documentation, and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all intellectual property rights in and to any of the foregoing.
1.8. “Documentation”: the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and similar materials in hard copy or electronic form if and as provided by Company to Merchant (including any revised versions thereof) relating to the Subscription Services, which may be updated from time to time upon notice to Merchant.
1.9. “Confidential Information”: the substance of this Agreement, any Documentation, any fee schedules outlined in the Order Form and all other information disclosed by one party or its Affiliate (“Disclosing Party”) to the other party or its Affiliate (“Receiving Party”) in connection with this Agreement or related to the Subscription Services that is identified as confidential or that, given its nature or the manner of disclosure, a reasonable recipient would understand to be confidential or proprietary (including all information relating to the Disclosing Party’s technology,
business plans, marketing activities, and finances). For the avoidance of doubt, Confidential Information shall not include “Personal Data”, which is subject to the terms of the DPA (as defined herein).
1.10. “DPA”: the data protection addendum attached hereto as Exhibit A.
1.11. “End Users”: end users of the Merchant Sites, including Merchant’s customers and potential customers.
1.12. “Licensed Volume”: the limits, volume or other measurement or conditions of permitted User for the applicable Subscription Service as set forth in the applicable Order Form, including any limits on the number of Authorized Users permitted to Use the Subscription Services or the number of web pages, Sites, or returns/exchanges based on Merchant’s subscription tier.
1.13. “Merchant Materials”: all information, data, content and other materials, in any form or medium, that is transmitted or otherwise provided by or on behalf of Merchant or any End Users through the Subscription Services or to Company in connection with Merchant’s Use of the Subscription Services including any third party integrations (as contemplated in Section 6.3) agreed to by Merchant. For the avoidance of doubt, Aggregate Data and any other Company IP are not included in this definition.
1.14. “Merchant Sites”: Merchant's e-commerce websites, including those of additional Instances.
1.15. “Instances”: a webpage that Merchant pays for access to utilize the Subscription Services and which is owned by or operated by an Affiliate of Merchant.
1.16. “Order Form”: means a (i) mutually executed order form or other mutually agreed upon ordering document; (ii) purchase order issued by Merchant and accepted by Company in writing; or (iii) quote issued by Company and accepted by Merchant, in each case which references this Agreement and sets for the applicable Subscription Services to be provided by Company.
1.17. “Subscription Services”: means the proprietary technology platform provided by Company and any other services which Company makes available to you, either directly or as a third-party reseller, as more particularly described or identified in the applicable Order Form.
1.18. “Use”: to use and access the Subscription Services in accordance with this Agreement and the Documentation, including by making the Subscription Services available to End Users via the Merchant Sites.
1.19. “Agreement Date”: the later of the dates of signature on the Order Form of Merchant and Company.
1.20. “Effective Date”: the date (as indicated on the Order Form) from when the Merchant may begin to receive the Subscription Services (as defined herein).
1.21. “Term”: a period of time, which may either be an Order Term or a Renewal Term.
1.22. “Order Term”: the period of time indicated on the Order Form beginning from the Effective Date through the end of
the time period for which the Merchant will receive the services as indicated on the Order Form “End Date”.
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1.23. “Renewal Term”: a period for which this Agreement remains active following the expiration of an Order Term pursuant to an automatic renewal as outlined in Section 4.1 of these TCs. Each Renewal Term shall be considered an “Order Term” for purposes of calculation of fees owed pursuant to Section 3 of these TCs.
1.24. “Agreement Term”: the total of the Order Term and any applicable Renewal Terms.
1.25. “Base Fee” the fixed amount that Merchant shall be billed (on the intervals as outlined on the Order Form) for access to the Loop Return Portal Service. The amount of the Base Fee (if any) shall be identified on the Order Form.
1.26. “Base Fee Tier” each a tier of Base Fees based on Actual Volume (as defined herein) that Merchant must pay under a “Tiered” billing structure.
1.27. “Per-Return Rate”: amount that Merchant shall be billed for each Return that Merchant has initiated through the Loop Return Portal. The amount of the Per-Return Fee (if applicable) shall be identified on the Order Form and may vary throughout the Order Term according to certain promotions.
1.28. “Per-Return Fee”: (Per-Return Rate) multiplied by (number of Returns during a given time interval).
1.29. “Return”: shall mean the action of receiving products back from an End User seeking a refund or exchange. Regardless of the number of unit items returned by the End User, such action shall be considered as one (1) Return.
1.30. “Return Volume”: the estimated amount of Returns that Merchant is expected to have initiated through the Loop Return Portal service during a given Order Term. This amount shall be identified on the Order Form.
1.31. “Actual Volume”: the total amount of Returns that Merchant has initiated through the Loop Return Portal service during a given Order Term.
1.32. “Minimum Commitment Volume”: the minimum amount of Returns that Merchant commits to make during the Order Term. If applicable, this amount shall be identified on the Order Form.
1.33. “Minimum Commitment Fee”: ((Actual Volume) x (Per-Return Fee)) minus ((Per-Return-Fee) x (Minimum Commitment Volume)).
1.34. “Overage Rate”: the rate that Merchant shall pay Per-Return when the Actual Volume exceeds the Return Volume during the given Order Term.
1.35. “Overage Fee”: the amount Merchant shall pay to Company when the Actual Volume exceeds the Return Volume under the Flat-Rate billing type, according to this formula: ((Actual Volume) minus (Return Volume)) x Overage Rate.
1.36. “IPR Service”: the In-Person Return Subscription Service.
1.37. “IPR Fee”: the dollar amount (as agreed to in the relevant Individual Service Terms or Order Form) Merchant agrees to pay to Company for each unit item returned via the IPR Service.
1.38. “Minimum IPR Commitment Fee”: the dollar amount (as agreed to in the relevant Individual Service Terms or Order Form) which Merchant agrees to pay on a monthly basis for the IPR Service if such amount exceeds the total of IPR Fees incurred in a given month.
1.39. “Taxes”: all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Merchant to Company under this Agreement.
1.40. “Service Fees”: non-refundable fees (including Base Fee, Per-Return Fees, Overage Fees, IPR Fees and any minimum commitment fees) including any Taxes, owed by Merchant in relation to Company’s delivery of the Subscription Services (including Company’s re-selling of third-party services).
1.41. “Handling Fee”: a fee charge assessed on End-Users at the time of performing a Return.
1.42. “Losses” all amounts finally awarded to a third-party in relation to a type of Claim (as defined herein), and all penalties, fines and reasonable third-party costs (including reasonable legal fees) paid by a party related to such Claim.
1.43. “Claim”: any claim, demand, governmental investigation, suit, or legal proceeding brought by a third-party.
1.44. “IP Claim”: any Claim made against a party to this Agreement alleging that the other’s technology, services, or Mark’s (which were provided to them) infringes or misappropriates the intellectual property rights of the Third-Party making the Claim.
1.45. “Data Claim”: any Claim against a party to this Agreement arising from a Data Incident experienced by the other party to the extent the Data Incident was caused by the other party’s breach of the DPA, Section 8, or of an applicable privacy or data protection law.
1.46. “Data Incident”: any unauthorized or unlawful processing use, access, loss, disclosure, destruction or alteration of any of (i) Merchant Personal Data (as defined in the DPA) in the subject party’s or its Affiliates possession; or (ii) Company Data when in possession of the Merchant or its Affiliates.
1.47. “Data Incident Costs”: reasonable out of pocket amounts paid to provide legally required notice to individuals and, where applicable law requires, includes the amounts paid to a third-party for credit monitoring services for impacted individuals for 1 year or the term required by law, whichever is longer.
1.48. “Privacy Policy”: any publicly posted privacy policy, privacy notice, data policy, cookies policy, cookies notice or other similar public policy or public notice that addresses a party’s Personal Data practices and commitments.
1.49. “Individual Service Terms”: unique terms in an exhibit that apply under select conditions outlined in the exhibit for Company Services and/or payment structures.
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1.50. Offset Return Protection: An inventory item, or other configuration, which (if included in an End Users final checkout order) shall permit the End User to perform returns and/or exchange for all non-excluded items contained within the order and related to the original order at no additional cost to the End User, subject to Merchant’s return and/or warranty policy.
1.51. Offset Purchase Orders: orders placed by an End User with the Offset Return Protection included.
1.52. Non-Offset Purchase Returns: Returns initiated which but were not initiated in connection with an Offset Purchase Order.
1.53. Offset Purchase Fee: fee assessed for the Offset Return Protection Item.
1.54. End-User Charges: any Handling Fee and any Offset Purchase Fee.
2.1. Structure of the Agreement and Conflict Resolution: The Agreement between Merchant and Company consists of the documents listed in this subsection. If any term in these TCs directly conflicts with a term in any Order Form or exhibit, then unless a document of higher precedence expressly states to the contrary, the order of precedence (from
most precedence to least) is as follows:
2.1.1. The Order Form (including specifically referenced exhibits in the “Variation/Additional Terms” section).
2.1.2. The Individual Service Terms (some of which may or may not apply to your Merchant’s use, see Section 2.7)
2.1.3. These TCs.
2.1.4. The DPA in Exhibit A.
2.2. Delivery of Subscription Services: Subject to these TCs, including Merchant’s payment of the Service Fees, Merchant shall deliver and/or provide access to (including through third-parties) the Subscription Services to Merchant which are stated to be delivered Subscription Services on an executed Order Form. For the avoidance of doubt, if Company makes certain Subscription Services available to Merchant in the capacity of a re-seller, Company shall have no obligation to continue to deliver such service (and therefore may terminate relevant portions of an Order Form) if Company is not permitted to re-sell such services. Unless otherwise agreed in writing with Company, the Subscription Services may only be purchased for use with regard to Merchant Sites that are “Shopify” stores.
2.3. Right to Use: Subject to Merchant’s compliance with these terms and conditions of this Agreement, Company hereby grants to Merchant a limited, non-exclusive, non-transferable (except pursuant to Section 12.3) non-sublicensable, royalty-free right to Use the Subscription Services during the Order Term, as long as Merchant’s access and use is (a) solely as necessary to use the Subscription Services; (b) solely for Merchant’s business purposes; and (c) in compliance with this Agreement and the Documentation.
2.4. Service Restrictions: Merchant must only use the Subscription Services for business purposes, and must not permit any use of the Subscription Services for personal, family or household purposes. In addition, Merchant must not (and must not permit any third-party) to:
2.4.1. resell or distribute the Subscription Services;
2.4.2. evade technical limitations of the Subscription Services, enable disabled functionality, or access/search the Subscription Services (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 Subscription Services features provided by Company for use expressly for such purposes;
2.4.3. attempt to reverse engineer the Subscription Services;
2.4.4. copy, modify, or create derivative works of any portion of the Subscription Services, Company IP, or Documentation
2.4.5. use the Subscription Services to engage in fraudulent, deceptive, or harmful activity; or
2.4.6. attempt actions that interfere with normal operation of the Subscription Services.
2.5. Feedback: During the Term, a party may provide the other with ideas, suggestions, comments, observations and other input regarding the other party’s products and services (“Feedback”). Feedback is voluntary, and the other party providing the Feedback grants, on behalf of itself and its Affiliates, to the receiving party and its Affiliates a perpetual, worldwide, non-exclusive, irrevocable, royalty-free license to exploit that Feedback for any purpose, including developing, manufacturing, promoting, selling and maintaining the receiving party’s and its Affiliates’ products and services. All Feedback that the receiving party and its Affiliates receives from the other party and its Affiliates shall be considered the
Confidential Information of the receiving party.
2.6. Beta Services: Company may classify certain Subscription Services (or with certain releases or features within such
Subscription Service) as being a “beta” or “pilot” (a “Beta Service”). By their nature, Beta Services may be incomplete or contain bugs. Company may describe limitations that exist within a Beta Service; however, Merchant should not rely onthe accuracy or completeness of these descriptions. Merchant should not use Beta Services in a production environment until and unless Merchant understands and accepts the limitations and flaws that may be present in the Beta Services.
Unless Stripe otherwise agrees in writing, Merchant’s use of Beta Services is confidential, and Merchant will provide timely Feedback on the Beta Services in response to Company’s requests. Company has no obligation to provide any bug fixes, error corrections, patches or service. Company does not guarantee service levels for Beta Services. Company may suspend or terminate User’s access to the Beta Services at any time.
2.7. Selected Subscription Services: Company may offer certain of the Subscription Services to the Merchant. Merchant’s selected Subscription Services shall be identified on the Order Form. By selecting a specific Subscription Service, Merchant acknowledges and agrees to be bound by the respective Individual Service Terms applicable to that service. Subscription Services can be added to Merchant’s account by way of an amendment, revised, or new Order Form. Any such addition shall result in Merchant’s agreement to the relevant Individual Service Terms.
2.8. Return Portal Plan Types: Company may offer various “Plan” types, each of which makes available an assortment of features within the Loop Returns Portal. The features available within each Plan may change from time to time. Merchant’s selected billing structure (see Section 3.2.1 below) may affect the availability of certain Plan types. Merchant’s selected Plan shall be noted on the Order Form.
2.9. Instances and Authorized Users: Merchant may permit the following to utilize the Subscription Services and be liable for their respective actions: (a) persons acting on its behalf as employees or agents (“Authorized Users”); and any additional Instances for which Merchant has purchased access to the Subscription Services. Merchant shall be responsible for ensuring that each Instance complies with all restrictions and obligations provided in the Agreement (including the DPA) as if it is a Merchant Site. If any instance is owned and/or operated by an entity other than Merchant, Merchant hereby represents (as of the Agreement Date and warrants throughout the remainder of the Agreement Term, that it has all power and authority to (a) act on behalf of such Instance owner/operator; and (b) compel such Instance owner/operator to comply with all relevant restrictions and obligations within the Agreement. Company may suspend or terminate any Authorized User’s access to the Subscription Services upon notice to Merchant in the event that Company reasonably determines that such Authorized User violated this Agreement.
3.1. Service Fees and Payment: Merchant shall pay Company’s Service Fees as outlined on the Order Form or the respective Individual Service Terms. Additionally Merchant shall pay for all operational charges (such as fees charged to End Users that are to be paid to the Company) as specified in Individual Service Terms. All payments shall be made in United States Dollars. UNLESS OTHERWISE AGREED, MERCHANT SHALL BE ENROLLED IN AUTOMATIC BILLING, WHICH MERCHANT HEREBY AGREES SHALL PERMIT THE COMPANY TO CHARGE (ON OR AFTER SUBJECT PAYMENT DUE DATES AS PROVIDED IN SECTION 3.2 BELOW) MERCHANT’S DEFAULT PAYMENT METHOD FOR THE FEES THAT ARE OWED. Company may permit Merchant to make payments by either: (a) ACH bank transfer from a U.S. bank account belonging to Merchant; or (b) a credit card payment from a card belonging to Merchant. Merchant’s selection will be Merchant’s “Default Payment Method” for purposes of automatic billing. Credit card payments will be subject to a 2.9% convenience fee. Merchant remains responsible for timely payment despite any unsuccessful payment attempts. Company may, but is not obligated to, attempt payment multiple times after previous unsuccessful attempts. In accordance with local law, Company may update information regarding Merchant’s selected payment method if provided such information by Merchant’s financial institution. Company may prohibit access to the Subscription Services until Merchant is current with all payments (including Late Fees as defined below) but such prohibition shall not relieve Merchant of its future payment obligations. Merchant shall not be permitted to offset or deduct amounts that it believes have been billed in error. Unless otherwise noted, a Merchant will be responsible for payment for labels (or other instruments such as QR codes) in relation to an End-Users Return.
3.2. Loop Return Portal Subscription Service: The following terms apply to fees relative to the “Loop Return Portal” Subscription Service. Other services, including “Tracking” may incur additional fees.
3.2.1. Billing Types: Company may make one of multiple billing structures available to Merchant for Company’s Loop Return Portal service. The agreed billing structure shall be indicated on the Order Form.
3.2.1.1. Flat-Rate: Merchant pays Base Fee (designated time intervals noted in the Order Form). If Merchant incurs Returns above the Return Volume during the given Order Term, Merchant will also pay any Overage Fees for each time interval remaining in the Order Term.
3.2.1.2. Usage: Merchant pays Base Fee and Per-Return Fee (at the designated time intervals).
3.2.1.3. Tiered: Merchant pays the Base Fee (at the designated time intervals), which shall adjust for subsequent time intervals remaining in the Order Term when Merchant’s Actual Volume crosses into a higher Base Fee Tier.
3.2.1.4. Offset: Merchant pays based on the End-User Charges.
3.2.2. Minimum Commitment Fees and Early Termination Fee:
3.2.2.1. Minimum Commitment Fee: If Merchant’s Actual Volume at the end of the Order Term falls below the Minimum Commitment Volume (as indicated on the Order Form), Merchant shall owe and pay to Company the Minimum Commitment Fee.
3.2.2.2. Early Termination Fee: Notwithstanding the inability for Merchant to terminate the Agreement (or any Order Form) for convenience before the end of the Order Term, if Merchant give its intent to do so or triggers a default under section 3.2.5, Company shall be permitted to elect to accelerate and immediately bill for (i) the remaining Base Fees that will come due through the end of the Order Term as of the time of attempted termination (capped at six months); and (ii) Minimum Commitment Fee. Such election shall be without prejudice to any other Company’s rights or remedies available to Company under this Agreement.
3.2.3. Billing Processing Dates: Unless otherwise noted in the Order Form or Individual Service Terms, all shall be processed against the Default Payment Method on the 5 th day of the month. However, the following rules shall also apply based on the fee type:
3.2.3.1. Base Fees: Base Fees shall be billed monthly in advance.
3.2.3.2. Per-Return Fees: Per-Return Fees, if applicable, shall be billed monthly at the end of the month and processed against the Default Payment Method on or about the 5 th of the following month.
3.2.3.3. Minimum Commitment Fees: Minimum Commitment Fee, if applicable, will be billed at the end of the Order Term, and processed on or about the 5 th of the month following the end of the Order Term.
3.2.4. Return Volume Estimate: If Merchant is under Usage billing and Merchant’s Actual Volume exceeds the Return Volume, Merchant and Company shall participate in good faith discussions (within 90 days notice
from Company) to execute an updated Order Form reflecting revised negotiated Return Volume, Minimum Commitment Volume, and Per-Return Fees.
3.2.5. Instances Fees: Unless otherwise stated in the Order Form, any Base Fees shall be inclusive of permitted Instances. Further, any returns authorized in relation to all permitted Instances shall be pooled together for purposes of calculating Actual Volume, Return Volume and Minimum Commitment figures.
3.3. In-Person Return Subscription Service Fees: The following terms apply if Merchant utilizes the IPR Service:
3.3.1. IPR Fees and Minimum IPR Commitment Fee: As provided in the respective Individual Service Terms, Merchant may become liable to pay monthly to Company the greater of the following:
3.3.1.1. the total of IPR Fees accrued during a given month; and
3.3.1.2. the Minimum Commitment IPR Fee.
3.3.2. Early Termination IPR Fee: As provided in the respective Individual Service Terms, Merchant may become obligated to pay a termination fee as the result of Merchant making the IPR Service unavailable to End
Users.
3.3.3. Cumulative Fees: The fees owed as referenced in this Section 3.3 (and any other fees specifically identified in any other Individual Service Terms) are in addition to (and not in place of) the fees referenced in Section
3.2. For example, an IPR with three items from the same original order, shall also incur one Per-Return Fee.
3.4. Other Applicable Fees and Defaults: The following apply to all fees referenced in this Section, and any other amounts owed by Merchant under any Individual Service Terms:
3.4.1. Service Fee Adjustments: If the Order Form indicates so for a specific Subscription Service, those Service Fees shall increase (at any rate stated in the Order Form of Individual Service Terms) for any Renewal Term.
3.4.2. Late Payment: If Merchant fails to make timely payments (including operational charge such as fees charged to End Users that are to be paid to the Company), Merchant shall owe and pay late charges assessed by
Company at the lower of: (a) 1.5% of the outstanding amount per month while the amount remains unpaid and (b) the highest rate permitted by applicable law (“Late Fee”).
3.4.3. Fee Acceleration: If Merchant fails to make an owed payment (including operational charge such as fees charged to End Users that are to be paid to the Company) in full within sixty (60) days of such amounts being due, Merchant shall be in default and the early termination fees mentioned in Section 3.2 and Section 3.3 (along with all other outstanding amounts) shall immediately become due.
3.5. Taxes. Company’s fees exclude all applicable Taxes. Merchant has sole responsibility and liability for (a) determining which, if any, Taxes or fees apply to the sale of its products and services, acceptance of donations, or payments it receives in connection with its use of the Subscription Services; and (b) assessing, collecting, reporting and remitting Taxes for its business to the appropriate tax and revenue authorities. Without limiting the foregoing, in the event that Merchant is required to deduct or withhold any Taxes from the amounts payable to Company hereunder, Merchant will pay an additional amount as necessary to ensure that Company receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
4.1. Length: This Agreement begins on the Agreement Date and continues for the period provided in the “Order Term” section on any Order Forms in addition to any Renewal Terms (“Agreement Term”). Unless the Order Form states that it is not subject to auto-renewal, the Order Form will automatically renew (“Auto-Renewal”) as follows:
4.1.1. Month to Month Order Form Length: Auto-renewal of one additional month, with consecutive Renewal Terms continuing until terminated. Merchant may prevent an Auto-Renewal by providing notice to Company to immediately terminate the Subscription Services.
4.1.2. Any Length Other Than One Month: Auto-renewal for one (1) Renewal Term of one (1) year. Merchant may prevent an Auto-Renewal by providing written notice to Company of its intent not to renew at least sixty (60) days prior to the end of the then-current Term. If the Order Term is greater or less than one year, any Return Volume and Minimum Commitment Volume for the Renewal Term shall be prorated according to the proportion of the length of the original Order Term in comparison to the length of the Renewal Term.
4.2. Termination for Cause: Either Party may terminate this Agreement, effective upon providing written notice to the other Party, if the other Party materially breaches this Agreement, and, if able to be cured, such breach remains uncured for thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
4.3. Company Termination: Notwithstanding Section 4.2, Company may terminate this Agreement immediately upon written notice to Merchant if:
4.3.1. Merchant breaches any obligation or restriction in Section 2 of this Agreement;
4.3.2. Merchant fails to make any payment when due, which remains unpaid for five (5) days after its due date; or
4.3.3. Merchant violates Company’s intellectual property rights in and/or to the Subscription Services;
4.3.4. Merchant is on a One Month Order Form length.
4.4. Effect of Expiration or Termination: Upon expiration or termination of an Order Form (other than termination pursuant to Section 4.2 or Section 4.3), each other Order Form that is then in effect, if applicable, will remain in effect for the duration of the then-current Term of such Order Form.
4.5. Effect of Multiple Executed Order Forms: If multiple Order Forms are executed governing at least one of the same Subscription Services and overlap temporally, the prior Order Form shall be superseded by the newer form as it pertains to the overlapping Subscription Service only. Non-overlapping Subscription Services under the previous Order Form
shall remain active unless otherwise noted.
4.6. Onboarding: Unless otherwise stated, Onboarding will begin on the Effective Date if Default Payment Method is validated.
5.1. Confidentiality Obligations: The Receiving Party of Confidential Information agrees that it will:
5.1.1. keep confidential using no less than reasonable levels of safeguards to prevent prohibited access or dissemination of Confidential Information;
5.1.2. use Confidential Information only for the purpose(s) of fulfilling its obligations and exercising its rights under the Agreement, unless otherwise stated herein;
5.1.3. not disclose Confidential Information to any third-party without receiving the Disclosing Party’s Consent.
5.2. Allowed Disclosures: Notwithstanding Section 5.1.3, the Receiving Party may disclose Confidential Information without the Disclosing Party’s Consent:
5.2.1. to the Receiving Party’s Affiliates and/or Representatives, whom (a) the Receiving Party have caused to be subject to terms of non-use confidentiality as stringent as those outlined in Section 5.1 or whom have a recognized legal duty of confidentiality; and (b) are provided Confidential Information on a bona fide need-to-know basis. Merchant shall be held responsible in the event that any such persons improperly use or disclose the Confidential Information;
5.2.2. pursuant to a request as required by applicable law and/or the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party
reasonable prior written notice (where permitted) to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure at the Disclosing Party’s own expense.
5.2.3. where Company is the recipient, to Company’s third-party service providers, as necessary to provide the Subscription Services.
5.3. Exclusions: The restrictions of Section 5.1 and Section 5.2 will not apply to any information (that the Receiving Party can prove through competent evidence):
5.3.1. is or becomes generally available to the public through no improper action or inaction by the Receiving Party, its Affiliates, or its Representatives.
5.3.2. was known or possessed by the Receiving Party prior to the disclosure.
5.3.3. was rightfully disclosed to the Receiving Party without breach of any confidentiality or non-use obligation; or
5.3.4. was independently developed by the Receiving Party’s employees (or its Affiliates employees) without having accessed such Confidential Information.
5.4. Aggregated Data: Notwithstanding the restrictions in this Section, Company shall be permitted to use and modify Merchant’s Confidential Information in deidentified form for purposes of developing and deriving Aggregated Data, which Company may use in any manner consistent with applicable law.
6.1. Retention of Ownership: As between Merchant and Company, Company owns and retains all right, title and interest in and to the Subscription Services, and Documentation, including all intellectual property rights therein. Merchant owns and retains all right, title and interest in and to all Merchant Materials. Merchant hereby grants a worldwide, non-exclusive license to use the Merchant Materials to provide, maintain and improve the Subscription Services, including any third-party integrations as contemplated in Section 6.3.
6.2. Marks Usage: Subject to the other party’s adherence to this Agreement, each party grants to the other party and its Affiliates a worldwide, non-exclusive, non-transferable (except as allowed under Section 12.3), non-sublicensable (except as provided in Section 6.3), royalty-free license during the Term to use the grantor party’s trademarks, service marks, design marks, logos and stylized scripts (collectively, “Marks”) solely to identify Company as Merchant’s service provider. Additionally, Company and its Affiliates may use Merchant’s Marks (including those of each Instance utilizing the Subscription Services): (a) on Company’s webpages and apps that identify Company’s customers; (b) in Company’s sales/marketing materials and communications; (c) in connection with promotional activities to which the parties mutually agree; and (d) in financial disclosure documents. When using Company’s Marks, Merchant shall comply with the brand guidelines which Company may make available (and update) from time to time.
6.3. Marks Usage By Third-Parties: Notwithstanding same, if Merchant agrees to allow certain third-party integrations facilitated by Company on the Merchant Site, Merchant also agrees to allow Company to transmit or otherwise permit third-parties to utilize (or allow to be utilized) Merchant’s Marks as necessary for those integrations.
7.1. Merchant Information Updates: Merchant must immediately notify Company, and provide Company with updated Merchant information, if (a) Merchant experiences or anticipates experiencing a change of control; (b) Merchant experiences or anticipates experiencing a material change in Merchant’s business or financial condition; (c) the regulatory status of the business for which Merchant is using the Subscription Services changes, including if it becomes subject, or no longer subject, to regulatory oversight; or (d) a governmental authority has notified Merchant that its business is the subject of an investigation action.
7.2. Changes to Business Activity: If Merchant wishes to use the Subscription Services in connection with a business activity or category of good or service that, prior to the Effective Date, Company did not agree to support, Merchant will notify its Company account manager and seek Company’s consent. Merchant will not use the Subscription Services in connection with the new business activity or category until and unless Merchant receives Company’s written consent.
8.1. Privacy Policies: Each party will make available a Privacy Policy that complies with applicable law and comply with its Privacy Policy.
8.2. Personal Data:
8.2.1. Permissions: When Merchant provides Merchant Personal Data and other information relating to End Users’ use of the Merchant’s Sites, Merchant must provide all necessary notices to obtain all necessary rights and consents from those End Users sufficient to enable Company to lawfully collect, use, retain and disclose the Merchant Personal Data and other information relating to End User’s use of the Merchant’s Sites in the manners outlined in Section 8.2.2.
8.2.2. Expected Uses: Company will only use the data outlined in Section 8.2.1 to (a) secure, provide, provide access to and update the Subscription Services; (b) fulfill its obligations under applicable law and comply with
governmental authority requirements/requests; and (c) prevent and mitigate fraud, financial loss and other harm.
8.3. Data Incidents:
8.3.1. Investigations: If either party is the subject of a Data Incident, such party will investigate the incident and use commercially reasonable efforts to mitigate the Data Incident. The parties will reasonably cooperate with
each other so that each party may (I) determine and comply with its legal obligations with respect to notifying impacted individuals and regulators; and (ii) provide information to law enforcement, if applicable.
8.3.2. End User Notification: The party obligated to notify impacted individuals will be responsible for providing any legally required notices, and the parties will cooperate on the notice content and notification process.
8.4. Data Processing Agreement: Company and Merchant will comply with the DPA.
8.5. Data Controls: Each party will use commercially reasonable efforts to implement and maintain reasonable administrative, technical, and physical safeguards designed to protect data within its possession or under its control from unauthorized access, accidental loss and unauthorized modification.
9.1. General: Unless this Agreement expressly states to the contrary elsewhere, the following representations and warranties apply generally to the respective parties’ performances under this Agreement.
9.1.1. Mutual: Each party represents as of the Agreement Date, and warrants during the Agreement Term, that:
9.1.1.1. it has the full power and authority to enter into and perform under this Agreement;
9.1.1.2. the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary actions and do not violate its organizational documents; and
9.1.1.3. it will comply with all laws and regulations applicable to its provision, receipt, or use of the Subscription Services, as applicable.
9.1.2. Merchant: Merchant represents as of the Effective Date, and warrants during the Term, that:
9.1.2.1. Company’s use of the Merchant Materials and Merchant Personal Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between Merchant and any third-party.
9.1.2.2. Merchant’s use of the Subscription Services shall not violate any applicable laws or regulations.
9.1.2.3. all information Merchant provides to Company, including Merchant information, is complete and accurate.
10.1. Disclaimer: EXCEPT AS EXPRESSLY STATED AS A “WARRANTY” IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DOES NOT MAKE ANY, AND EXPRESSLY DISCLAIMS ALL,
EXPRESS AND IMPLIED WARRANTIES AND STATUTORY GUARANTEES WITH RESPECT TO ITS PERFORMANCE UNDER THIS AGREEMENT, THE SUBSCRIPTION SERVICES (INCLUDING THIRD-PARTY IN-
PERSON RETURN, PICKUP RETURN, AND SHIPPING LABEL SERVICES WHERE COMPANY IS MERELY A SERVICE RESELLER), MATERIALS, PROVIDED HEREUNDER, INCLUDING AS RELATED TO AVAILABILITY OF
THE SUBSCRIPTION SERVICES, THE OCCURRENCE OF BUGS AND ERRORS, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT, AND THE IMPLIED WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. FOR THE AVOIDANCE OF DOUBT, MERCHANT REMAINS RESPONSIBLE FOR THE PROCESSING, FULFILLMENT, AND REFUND OF ANY ORDERS, RETURNS, EXCHANGES AND GIFT CARD ISSUANCE AND FOR ASSURING THAT ITS PRODUCTS, SERVICES, AND USE OF THE SUBSCRIPTION SERVICES COMPLY WITH ALL APPLICABLE LAWS, RULE, REGULATIONS AND STANDARDS.
10.2. Exclusion of Damages:
10.2.1. Indirect Damages: To the maximum extent permitted by law, neither party or its Affiliates will be liable to the other party or its Affiliates in relation to this Agreement or the Subscription Services during and after the Term, whether in contract, negligence, strict liability tort, or other legal or equitable theory, for any lost profits, loss of data, business interruption, indirect, incidental, consequential, exemplary, special, reliance or punitive damages, even if advised of the possibility of these damages. This exclusion shall not apply to (the “Excluded Damages”) which are:
10.2.1.1. damages a party incurs arising from the other’s breach of Section 5 (Confidentiality);
10.2.1.2. damages a party incurs arising from the other’s willful misconduct, fraud, or criminal activity;
10.2.1.3. damages Company incurs arising from Merchant’s breach of Section 3 (Fees);
10.2.1.4. damages a party incurs arising from the other’s actions resulting in IP Claim Losses;
10.2.1.5. damages a party incurs arising from Data Claim Losses, and/or incurred Data Incident Costs if such costs were incurred by the party as the result of the other party’s breach of the DPA, Section 8, or applicable privacy or data protection laws.
10.2.2. Limitation of Liability: To the maximum extent permitted by law, a party and its Affiliates will not be liable to the other party and its Affiliates in relation this Agreement or the Subscription Services, whether in contract, negligence, strict liability, tort or other legal or equitable theory, for damages exceeding in the aggregate the total amount of Service Fees paid by Merchant (excluding amounts passed through to third-parties in relation to resold services but including fees collected from End Users for the benefit of Company) during the twelve (12) month period immediately preceding the event giving rise to the liability. This limitation shall not apply to the Excluded Damages, except those in Section 10.2.1.4.
10.2.3. Supercap on Limitation of Liability: Notwithstanding Section 10.2.2 above, and to the extent permitted by law, in no event will either party be liable to the other for damages in Section 10.2.1.5 exceeding in the aggregate of two-times (2X) the total amount of Service Fees paid by Merchant (excluding amounts passed through to third-parties in relation to resold services) during the twelve (12) month period immediately preceding the event giving rise to the liability.
10.2.4. Basis of the Bargain: The parties hereby acknowledge and agree that the exclusions and limitations of liability in this Section 10.2 are an essential part of the basis of the bargain between Company and Merchant, and will apply even if the remedies available hereunder are found to fail their essential purpose.
11.1. Indemnification and Defense Obligations of Company: Unless this Agreement expressly states to the contrary elsewhere, the following defense and indemnification obligations apply generally under this Agreement.
11.1.1. Company’s Indemnification and Defense: Subject to Section 11.3, Company will defend Merchant against any Claim made against Merchant, and pay any related Losses of Merchant to the extent that the Claim:
11.1.1.1. arises out of Company’s material breach of any of its representations or warranties;
11.1.1.2. arises out of Company’s willful misconduct, fraud, or criminal activity;
11.1.1.3. arises out of Company’s material breach of this Agreement.
11.1.1.4. is a Data Claim.
11.1.1.5. is an IP Claim stemming from the contents of Subscription Services or Company IP themselves.
11.1.2. Alternatives and Exclusive Remedies: If Company reasonably believes that the Subscription Services or Company IP (or any component thereof) could infringe any third-party’s intellectual property rights, then Company in its discretion and expense, may use commercially reasonable efforts to (i) modify or replace the affected Subscription Services to make them non-infringing; (ii) procure the right for Merchant to continue to use the Subscription Services; or (iii) terminate this Agreement, in its entirety or with respect to the affected component upon written notice and refunding pre-paid Service Fees on a pro-rata basis.
11.2. Indemnification and Defense Obligations of Merchant: Unless this Agreement expressly states to the contrary elsewhere, the following defense and indemnification obligations apply generally under this Agreement.
11.2.1. Merchant’s Indemnification and Defense: Subject to Section 11.3, Merchant will defend Company against any Claim made against Company, and pay any related Losses of Company to the extent that the Claim:
11.2.1.1. arises out of Merchant’s material breach of any of its representations or warranties;
11.2.1.2. arises out of Merchant’s willful misconduct, fraud, or criminal activity;
11.2.1.3. arises out of Merchant’s material breach of this Agreement.
11.2.1.4. arises out of Merchant’s improper uses of the Subscription Services or Company IP.
11.2.1.5. arises out of Merchant’s use of the Subscription Services or Company IP in any manner that violates applicable laws, rules, or regulations;
11.2.1.6. arises out the manufacture, sale, return, exchange, distribution or marketing of any of products or services Merchant makes available to End Users;
11.2.1.7. arises out of Merchant’s breach of Section 2.3.
11.2.1.8. is a Data Claim.
11.2.1.9. is an IP Claim stemming from the Merchant Materials or Merchant’s improper uses of the Subscription Services or Company IP.
11.3. Indemnification and Defense Exclusions: Either party’s relevant obligations under Section 11.1.1 or Section 11.2.1 will not apply if the underlying Claim arises from, is the result of, or is otherwise intertwined with:
11.3.1. the other party’s breach of this Agreement;
11.3.2. the other party’s willful misconduct, fraud or criminal activity;
11.3.3. As applied to Section 11.1.1 obligations, (i) Merchant’s failure to implement the Subscription Services, or use the Subscription Services, in accordance with the Documentation (including by permitting modifications by anyone other than Company or a party Company authorizes to make modifications) or otherwise use any enhancements, modifications, or updates to the Subscription Services that have been made available to Company and/or communicated as an update to the Subscription Services; or (ii) Merchant’s Materials or Merchant Sites; or as applied to a Claim under 11.1.1.4, Merchant’s use of the Subscription Services or Company IP in combination with software, hardware, data or processes not provided by Company (if the Subscription Services or Company IP would not infringe absent the combination).
11.4. Indemnification and Defense Procedures: The indemnified party will provide prompt written notice to the indemnifying party of such Claim; however any delay or failure to notify will not relieve the indemnifying party of its obligations under this Section 11, except to the extent that it has been prejudiced by the delay or failure. The indemnifying party will have the exclusive right to defend or settle any such Claim and the indemnified party will provide all reasonably necessary cooperation to the indemnifying party, at the indemnifying party’s expense, in the defense and settlement of such Claim, however:
11.4.1. the indemnified party may participate in the Claim defense with counsel of its choice at its own expense; and
11.4.2. the indemnifying party will not enter into any settlement that imposes any obligation on the indemnified party (other than payment of money, which the indemnifying party will pay) without the indemnified party’s consent.
11.5. Indemnification and Defense Cap: To the maximum extent permitted by law, a party and its Affiliates will not be liable to the other party and its Affiliates in relation this Agreement or the Subscription Services, whether in contract, negligence, strict liability, tort or other legal or equitable theory, for indemnification and/or defense obligations provided in this section once same exceed in the aggregate (a) the dollar amount referenced in Section 10.2.2 as it relates to all indemnified claims except those that relate to Data Claims; and (b) the dollar amount referenced in Section 10.2.3 as it relates to indemnified claims that relate to Data Claim.
12.1. Publicity: Subject to Section 5, if the Order Form indicates so, each party shall have the right to publicly announce the existence of the business relationship between the Parties during the Agreement Term.
12.2. [Reserved].
12.3. Assignment: Neither party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent, except to an acquirer or successor in interest in connection with a merger or acquisition involving such Party or sale of all or substantially all of such Party’s assets. Any attempt to assign or transfer this Agreement without such consent will be void. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
12.4. Entire Agreement: This Agreement, including its exhibits and any Order Forms, is the complete and exclusive agreement between the parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both oral and written, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by the parties.
12.5. Export Regulation: Merchant will fully comply with all applicable laws, regulations and rules that may prohibit or restrict the export or re-export of the Subscription Services or software, or any Merchant Materials, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval. By using the Subscription Services, Merchant represents as of the Effective Date and warrants during the Term that it is not (i) located in or organized under the laws of any United States embargoed country; (ii) on any Restricted Party List; or (iii) owned 50% or more or controlled by persons or parties (x) located in or, as applicable, organized under the laws of any U.S embargoed Country, or (y) on the U.S. Treasury Department's list of Specially Designated Nationals, the U.S. Department of Commerce Denied Persons List or Entity List or any other restricted or prohibited party list administered by the U.S., United Kingdom, European Union or United Nations (each list, a “Restricted Party List”).
12.6. Force Majeure: Neither party will be liable for any loss or damage to the other party, or delays in performance, to the extent caused by events over which the affected party has no reasonable control. However, nothing in this Section will excuse Merchant’s liabilities and obligations with respect to payment of fees owed under Section 3.
12.7. Governing Law and Jurisdiction: The laws of New York will govern this Agreement, without giving effect to its conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Each party irrevocably submits to exclusive personal jurisdiction, and will bring all suits and actions under or in connection with this Agreement exclusively, in the federal or state courts in New York, NY, and each party waives all objections to those jurisdictions and venues.
12.8. Relationship: The relationship between the parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture, or agency relationship between the Parties.
12.9. Miscellaneous: Either Party’s failure or delay to enforce any provision (or part thereof) of this Agreement will not constitute a waiver of that Party’s right to subsequently enforce that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver. This Agreement may be executed electronically, and in two or more counterparts, each of which will be deemed to be an original, but all of which will constitute one and the same agreement. Except as set forth in this Agreement, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect. The following Sections should survive expiration and/or termination of this Agreement – Sections 3, 9, 10, 11, 12 and any other provision or exhibit that, by its nature, are intended to survive.
13.1. Providing Notice: Unless this Agreement expressly states otherwise, all notices under this Agreement must be given by email. For notices to Company the email address is legal@loopreturns.com with a copy (which shall not constitute notice) to PO BOX 16250, Columbus, OH, 43216, Attn: Legal Department; for notices to Merchant, the email address listed as “Designated Email” on the Order Form or within the applicable account dashboard. Notice is effective one business day after sending the email.
14.1. Updating Terms: Company may change the terms of this Agreement (including any exhibits or additional terms) from time to time and will post any such changes at https://www.loopreturns.com/legal/merchant-service-terms-and-conditions/. Company will inform the Merchant if any such change is material. Material changes will become effective upon at least fifteen (15) days advance notice.
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