These ‘Software as a Service’ Terms and Conditions (“SaaS Terms”) apply to and are incorporated by reference into the ordering document (the “Order Form”) made by and between the Shoplogix (as defined on the Order Form) and the Customer (as identified on the Order Form) and set forth the terms and conditions under which Shoplogix will provide the Customer with access to certain products and services as set forth on the Order (“Service(s)”) and user documentation that Shoplogix makes generally available in hard copy or electronic form to its general customer base in conjunction with the purchase and use of such Services (“Documentation”). The Services and the Documentation will hereinafter collectively be referred to as the “Software.”
Shoplogix and Customer hereby agree as follows:
1.1 “Customer Data” means data in electronic form input or collected through the Services by or from Customer, including without limitation by Customer’s Users.
1.2 “User” means any individual who uses the Software on Customer’s behalf or through Customer’s subscription, account or passwords, whether authorized or not.
2.1 Use Rights. During the Term, Customer may access and use the Software pursuant to the terms of any outstanding Order Form, including such features and functions as the Order Form requires solely for Customer’s internal business operations, provided such operations shall not include service bureau use, outsourcing, renting, or time-sharing the Service. Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the Services.
2.2 Software Revisions. Shoplogix may revise Software features and functions, including without limitation by removing such features and functions or reducing service levels. If any such revision to the Software materially reduces features or functionality provided pursuant to an Order Form, Customer may within 30 days of notice of the revision terminate such Order Form, without cause, or terminate the Agreement without cause if such Order Form is the only one outstanding.
3.1 Subscription Fees. Customer shall pay Shoplogix the fee set forth in each Order Form (the “Subscription Fee”) for each Term. Shoplogix’s invoices are due within 30 days of issuance unless explicitly agreed otherwise in an Order Form. For late payment, Customer shall pay interest charges from the time the payment was due at the rate that is the lower of 3.5% per month or the highest rate permissible under applicable law. Shoplogix will not be required to refund the Subscription Fee under any circumstances.
3.2 Taxes. Amounts due under the Agreement are payable to Shoplogix without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value added tax withheld at the source. If applicable law requires withholding or deduction of such taxes or duties, Customer shall separately pay Shoplogix the withheld or deducted amount. However, the prior two sentences do not apply to taxes based on Shoplogix’s net income.
4.1 Use of Customer Data. Except as set out in these SaaS Terms or unless it receives Customer’s prior written consent, Shoplogix: (a) shall not access, process, or otherwise use Customer Data other than as necessary to provide the Software to Customer and its Users; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Shoplogix’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Shoplogix may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Shoplogix shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense. As between the parties, Customer retains ownership of Customer Data.
4.2 Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Software, Customer assumes such risks. Shoplogix offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
4.3 Data Accuracy. Shoplogix will have no responsibility or liability for the accuracy of data uploaded to, or through, the Services by Customer, including without limitation Customer Data and any other data uploaded by Users.
4.4 Data Deletion. Shoplogix may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
4.5 Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and shall not upload or transmit to Shoplogix’s computers or other media, any personally identifiable information (“Excluded Data”) regulated pursuant to means all laws and regulations, including laws and regulations of the European Union, the European Economic Area and their member states, Switzerland, the United Kingdom and the United States and its states, applicable to the processing of Excluded Data, as amended from time to time (the “Excluded Data Laws”). CUSTOMER RECOGNIZES AND AGREES THAT: (a) SHOPLOGIX HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) SHOPLOGIX’S SOFTWARES ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.
4.6 Aggregate & Anonymized Data. Customer acknowledges and agrees that Shoplogix may access certain Customer Data relating to the use and performance of the asset(s) monitored by the Services. Notwithstanding the provisions above of this Article 4, Shoplogix may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers.)
5.1 Acceptable Use. Customer shall not: (a) use the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software; (b) provide Software passwords or other log-in information to any third party; (c) share non-public Software features or content with any third party; (d) access the Software in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Software, or to copy any ideas, features, functions or graphics of the Software; or (e) engage in web scraping or data scraping on or related to the Software, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Shoplogix may suspend Customer’s access to the Software without advanced notice, in addition to such other remedies as Shoplogix may have. The Agreement does not require that Shoplogix take any action against Customer or any User or other third party for violating this Section 5.1, or the Agreement, but Shoplogix is free to take any such action it sees fit.
5.2 Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the Software, including without limitation by protecting its passwords and other log-in information. Customer shall notify Shoplogix immediately of any known or suspected unauthorized use of the Software or breach of its security and shall use best efforts to stop said breach.
5.3 Compliance with Laws. In its use of the Software, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
5.4 Users & Software Access. Customer is responsible and liable for: (a) Users’ use of the Software, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of the Agreement applicable to Customer; and (b) any use of the Software through Customer’s account, whether authorized or unauthorized.
6.1 IP Rights to the Software. Shoplogix and its licensors retain all right, title, and interests in and to the Software, including without limitation all software used to provide the Software and all graphics, user interfaces, logos, and trademarks reproduced through the Software. The Agreement does not grant Customer any intellectual property license or rights in or to the Software or any of its components. Customer recognizes that the Software and its components are protected by copyright and other laws.
6.2 Feedback. Shoplogix has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Shoplogix, and nothing in the Agreement or in the parties’ dealings arising out of or related to the Agreement will restrict Shoplogix’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of Article 7 below, Feedback will not be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Shoplogix’s products or services.)
“Confidential Information” includes the following disclosed by either party, before or after the date of the Agreement: (a) any document marked “Confidential” (or similar designation); (b) any information orally designated as “Confidential” at the time of disclosure, provided the disclosing party confirms such designation in writing within 30 business days; and (c) any other nonpublic, sensitive information the receiving party should reasonably consider a trade secret or otherwise confidential information of the other party. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in a party’s possession at the time of disclosure; (ii) is independently developed by a party without use of or reference to Confidential Information of the other party; (iii) becomes known publicly, before or after disclosure, other than as a result of a receiving party’s improper action or inaction; or (iv) is approved for release in writing by the disclosing party. Customer is on notice that the Confidential Information may include Shoplogix’s valuable trade secrets.
7.1 Nondisclosure. Customer shall not use Confidential Information for any purpose other than to the extent necessary to perform its obligations hereunder or to facilitate the transactions contemplated by the Agreement (the “Purpose”). Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 7; and (b) shall not disclose Confidential Information to any other third party without Shoplogix’s prior written consent. Without limiting the generality of the foregoing, each party agrees at all times to use all reasonable efforts, but in any case no less than the efforts that each party uses in the protection of its own Confidential Information of like value, to protect Confidential Information belonging to the other party. Customer shall promptly notify Shoplogix of any misuse or misappropriation of Confidential Information that comes to Customer’s attention.
7.2 Injunction. Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party imminent irreparable injury and that such party will be entitled to, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the other party does not fulfill its obligations under this Article 7.
7.3 Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.1 above (Nondisclosure) will terminate on the later of three (3) year (a) after the date of disclosure or (b) the termination or expiration of the Agreement; provided that such obligations related to Confidential Information constituting Shoplogix’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of the Agreement, (a) Customer shall return all copies of Shoplogix’s Confidential Information to Shoplogix or certify, in writing, the destruction thereof and (b) Shoplogix shall return within 30 days of Customer’s prior written request all copies of Customer’s Confidential Information to Shoplogix or certify, in writing, the destruction thereof.
7.4 Retention of Rights. Nothing in these SaaS Terms will be construed to convey any title or ownership rights to the Software or other Shoplogix Confidential Information to Customer or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest to the Shoplogix’s Confidential Information. The following is deemed the Confidential Information of Shoplogix with or without any marking of confidentiality or written confirmation: (i) the Software and other related materials furnished by Shoplogix; (ii) the oral and visual information relating to the Services; and (iii) these SaaS Terms. Customer Data is the Confidential Information of the Customer.
Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Customer is on notice and acknowledges that, notwithstanding the foregoing or any other provision of the Agreement:
(a) Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(b) Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
In addition, neither party will be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice is promptly given to the disclosing party so that the disclosing party may seek a protective order and engage in other efforts to minimize the required disclosure. The parties shall cooperate fully in seeking such protective order and in engaging in such other efforts.
8.1 From Shoplogix. Shoplogix represents and warrants that it is the owner of the Software and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the Software set forth in the Agreement without the further consent of any third party. Shoplogix’s representations and warranties in the preceding sentence do not apply to use of the Software in combination with hardware or software not provided by Shoplogix. In the event of a breach of the warranty in this Section 8.1, Shoplogix, at its own expense, shall promptly take the following actions: (a) secure for Customer the right to continue using the Software; (b) replace or modify the Software to make it noninfringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Shoplogix’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the Software.
8.2 From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under the Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by the Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Service; and (c) it is a corporation, the sole proprietorship, an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
8.3 Warranty Disclaimers. Except to the extent set forth in in Section 8.1 above, CUSTOMER ACCEPTS THE SOFTWARE “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) SHOPLOGIX HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) SHOPLOGIX DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) SHOPLOGIX DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
Customer shall defend, indemnify, and hold harmless Shoplogix and the Shoplogix Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the Software, including without limitation: (a) claims by Users or by Customer’s employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Software through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the Software through Customer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Customer’s obligations set forth in this Article 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Shoplogix will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Shoplogix Associates” are Shoplogix’s officers, directors, shareholders, parents, subsidiaries, affiliates, agents, successors, and assigns.)
10.1 Dollar Cap. SHOPLOGIX’S CUMULATIVE LIABILTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID TO SHOPLOGIX BY CUSTOMER FOR THE SERVICES IN THE 12-MONTH PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.2 Excluded Damages. Except with regard to breaches of Article 7 (Confidential Information), IN NO EVENT WILL SHOPLOGIX BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
10.3 Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF SHOPLOGIX IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, Shoplogix’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Shoplogix’s liability limits and other rights set forth in this Article 10 apply likewise to Shoplogix’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
11.1 Term. The term of the Agreement (the “Term”) will commence on the Effective Date and continue for the period set forth in the Order Form. Thereafter, the Term will renew for successive one-year periods, unless either party refuses such renewal by written notice 60 or more days before the renewal date. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
11.2 Termination for Cause. Either party may terminate the Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.
11.3 Effects of Termination. Upon termination of the Agreement, Customer shall cease all use of the Software and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of the Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of the Agreement that must survive to fulfill its essential purpose.
11.4 Suspension of Services for Cause. In addition to its other rights and remedies, Shoplogix reserves the right, without liability to Customer, to immediately suspend any and all access to the Services if Customer commits a material breach of the Agreement including, without limitation, providing access to the Services to more Users than permitted under an Order Form. Further, Shoplogix may immediately suspend any and all access to the Services without any cure period if Shoplogix determines in good faith that Customer’s material breach of the Agreement will cause damage to Shoplogix, the Services, or any other customer.
12.1 Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
12.2 Notices. Notices pursuant to the Agreement shall be sent to the respective parties addresses noted above, or to such others as either party may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (a) actual receipt or (b) delivery in person, by fax with written confirmation of receipt, or by certified mail return receipt requested. Shoplogix may send notices pursuant to the Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent.
12.3 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of the Agreement to the extent caused by acts of war, terrorism, hurricanes, epidemics, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
12.4 Assignment & Successors. Customer may not assign the Agreement or any of its rights or obligations hereunder without Shoplogix’s express written consent. Except to the extent forbidden in this Section 12.4, the Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
12.5 Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of the Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of the Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of the Agreement will continue in full force and effect.
No Waiver. Neither party will be deemed to have waived any of its rights under the Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of the Agreement will constitute a waiver of any other breach of the Agreement.
Choice of Law & Jurisdiction: The Agreement shall be governed by, and construed and enforced in accordance with, the laws in force in the Province of Ontario, Canada (excluding any conflict of laws rule or principle which might refer such construction to the laws of another jurisdiction). The parties hereto agree to submit to the non-exclusive jurisdiction of the provincial and federal courts of the Province of Ontario, Canada and waive any objection relating to improper venue or forum non conveniens to the conduct of any proceeding in any such court. The parties hereby waive any right to a trial by jury. This Section 12.7 governs all claims arising out of or related to the Agreement, including without limitation tort claims.
Conflicts. In the event of any conflict between the SaaS Terms and an Order Form, the Order Form will govern, but only with respect to the subject matter of such Order Form.
Construction. The parties agree that the terms of the Agreement result from negotiations between them. The Agreement will not be construed in favor of or against either party by reason of authorship.
Technology Export. The Software and other technology Shoplogix make available to Customer, including derivatives thereof may be subject to export laws and regulations of Canada, the United States of America (“U.S.”) and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not and shall not permit any other person to access or use the Software in a U.S.-embargoed country (currently Crimea – Region of Ukraine, Cuba, Iran, North Korea, Sudan or Syria) or otherwise in violation of any applicable Canadian or U.S. export law or regulation.
Entire Agreement. The Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
Amendment. The Agreement may not be amended except through a written agreement by authorized representatives of each party.