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These terms of service, together with any attached Addenda and any policies expressly incorporated by reference (collectively, this “Agreement”), are entered into by and between Platform (as defined below) and Kover.ai, Inc. dba Seel (“Seel”) and govern Platform’s access to and use of the products, services, applications, and Seel API that Seel provides Platform (collectively, the “Services”). This Agreement also governs any content, data, texts, files, images and other materials or functionality offered on or through the Services. “Platform” means, collectively or individually as the context requires, the person or the entity and any of its affiliates accessing or using the Services.Please read this Agreement carefully before accessing or using the Services. By accessing and using the Services, Platform is agreeing to be bound by this Agreement.BY ACCEPTING THIS AGREEMENT, BY ACCESSING AND USING THE SERVICES, PLATFORM AGREES TO THE TERMS OF THIS AGREEMENT. IF THE PERSON ACCEPTING THIS AGREEMENT IS DOING SO ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
1.DEFINITIONS.
1.1. “Addendum” means one or more addenda authorized by Seel and attached to and forming part of this Agreement and any exhibits thereto.
1.2. “Cuns a customer of Platform who has the ability to purchase the Seel Product on the Platform Website.
1.3. “Documentation” has the meaning stated in Section 2.1.
1.4. “Merchant Dashboard” means the user interface provided by Seel for use by Platform in connection with the Services.
1.5. “Platform” has the meaning stated in the first paragraph of this Agreement.
1.6. “Platform Content” means any information, data, texts, files, images and other materials that are provided by Platform or to which Platform grants Seel access in connection with the Services, including information about Customers and historical order and shipping data, but does not include information, data, text, files, images and other materials collected, provided, generated or used by or on behalf of Seel solely for the purpose of offering or administering a Seel Product and data collected from the administration of a Seel Product. Platform Content also does not include information that (a) is or becomes generally available to the public, other than as a result of disclosure by Seel in violation of this Agreement; (b) becomes available to Seel from a source other than Platform or Platform’s contractors, provided that such source, so far as Seel is aware, does not have a contractual, legal or fiduciary obligation of confidentiality to Platform or any other person with respect to such information; or (c) has been independently developed by Seel or its contractors without reference to any Platform Content.
1.7. “Platform Website” means Platform’s e-commerce website(s) accepted for participation in the Services by Seel.
1.8. “Seel” has the meaning stated in the first paragraph of this Agreement.
1.9. “Seel API” means Seel’s proprietary application programming interface (including 3rd party software plugins and applications) as well as any related materials, including installation tools, sample code, source code, software libraries, keys and Documentation provided by Seel to Platform under this Agreement.
1.10. “Seel Product” means any of Seel’s proprietary products identified in this Agreement.
1.11. “Seel Product Fees” means the fees charged to Customers to purchase a Seel Product as set forth in this Agreement.
1.12. “Seel Properties” has the meaning stated in Section 2.1.
1.13. “Services” has the meaning stated in the first paragraph of this Agreement.
1.14. “Third Party Service” has the meaning stated in Section 12.1.
2. INTELLECTUAL PROPERTY.
2.1. Seel Rights. Except for the Platform Content, the Services, any component thereof, all accompanying documentation (“Documentation”), the structure, sequence, organization and code of the software used to provide the Services, and all other materials provided by Seel hereunder, including but not limited to all manuals, reports, records, programs, data and other materials, and all intellectual property rights in each of the foregoing (collectively the “Seel Properties”), are the exclusive property of Seel and its suppliers. Platform agrees that it will not, and will not permit any other party to: (a) access the Seel Properties; (b) modify, adapt, alter or translate the Seel Properties; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Seel Properties to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Seel Properties; (e) use or copy the Seel Properties except as set forth under this Agreement; or (f) publish or disclose to any third party any performance benchmark tests or analyses or other non-public information relating to the Seel Properties or the use thereof.
2.2. Platform Content. As between Platform and Seel, except as otherwise expressly provided herein, Platform will at all times remain the exclusive owner of the Platform Content. During the Term of this Agreement and a period of two months after this Agreement's termination, Platform hereby grants to Seel a non-exclusive, worldwide, royalty-free and fully paid license to use the Platform Content as necessary to provide and improve the Services, administer any Seel Product provided under the terms of one or more Addenda attached hereto and improve Seel’s related product and services offerings. In addition, Platform hereby grants Seel a non-exclusive, perpetual, worldwide, royalty-free and fully paid license to use aggregated and anonymized Platform Content (i) to improve the Services and Seel’s related product and service offerings; (ii) to create new products and services relating to the Services (including analytics services such as providing benchmarking); and (iii) to generate and disclose statistics regarding use of the Services for the purpose of marketing Seel’s products and services and for any other lawful purpose. Platform represents and warrants that it has all rights, power and authority to grant the foregoing licenses, and that Seel’s exercise of such rights, will not infringe, misappropriate or violate the rights of any third party, including any intellectual property, publicity or privacy rights.
3. AUDIT.
During the Term of this Agreement and for a period of one (1) year thereafter, Platform shall maintain complete and accurate books and records to substantiate the transactions that are the subject of this Agreement, including records to substantiate the payment of all Seel Product Fees and other amounts associated with Seel Products. Seel and its designees shall have the right to inspect, copy, verify, and audit such books and records and otherwise conduct an audit, at Seel’s cost, as described herein at any time upon one (1) week prior written notice to Platform. An audit conducted by Seel or its designees may include inspection of the facilities, operations, and policies and procedures of Platform and Platform’s contractors for processing orders and shipments and other transactions related to Seel Products, which may include an inspection of Platform’s standard operations, policies and procedures as compared to those applied to Seel Products. Platform shall cooperate and shall cause its contractors to cooperate fully with Seel or its designees in connection with the audit and assist Seel, or its designees, as is reasonably required by Seel.
4. DISCLAIMERS OF WARRANTIES.
DISCLAIMERS OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES, AND ALL OTHER DOCUMENTATION AND MATERIALS ARE PROVIDED “AS IS” AND WITH ALL FAULTS. SEEL MAKES NO WARRANTIES WITH RESPECT TO THE SEEL PROPERTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE, ACCURACY, INTERFERENCE WITH PLATFORM’S QUIET ENJOYMENT, SYSTEM INTEGRATION, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SEEL PROPERTIES IS WITH PLATFORM. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SEEL OR ITS AGENTS OR EMPLOYEES SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
5. LIMITATION OF LIABILITY.
IN NO EVENT WILL SEEL BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, LOST PROFITS, LOST DATA, OR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF SEEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY, RELATED TO THIS AGREEMENT, OF SEEL AND ITS SUPPLIERS SHALL BE LIMITED TO ONE THOUSAND DOLLARS (U.S. $1,000). Platform agrees that the limitations of liability set forth in this Section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. Platform acknowledges that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between Platform and Seel.
6. INDEMNIFICATION.
Platform agrees to indemnify and hold Seel and its affiliates and their respective officers, directors, employees, representatives, attorneys, successors and assigns harmless from and against any claims, actions, suits, demands, causes of action, proceedings, investigations, damages, costs, expenses, liabilities, fines and losses of any kind (including reasonable attorneys’ fees and costs) arising out of or relating to Platform’s purchase, access to or use of the Services, any disputes arising between Platform and any other of Platform’s providers or partners (including but not limited to the provider of a Third Party Service), or any breach of this Agreement by Platform.
7. CONFIDENTIALITY AND DATA SECURITY.
7.1. Platform acknowledges that, from time to time, Platform will be exposed to information that is not generally known to the public and is considered confidential and proprietary by Seel (“Confidential Information”). “Confidential Information” shall include, but not be limited to, this Agreement, including any Addenda, the Seel Products, Seel API, the Documentation and all information concerning the Seel Properties, including their design, performance characteristics, feedback, and test results, and all confidential, competitively sensitive or secret business information, trade secrets, marketing information, codes, inventions, know-how and technical and financial information of Seel to which Platform has access, regardless of whether such information is marked “confidential.”
7.2. Platform (a) shall protect all Confidential Information from unauthorized use and disclosure in the same manner that it protects its own confidential information (but, in any event, using a commercially reasonable standard of care), (b) will not disclose Confidential Information to any third party except as required by law, and (c) except as otherwise expressly permitted by this Agreement, will not use such Confidential Information other than for performance of its obligations or exercising its rights under this Agreement without the prior written consent of Seel. Upon termination of this Agreement, Platform shall promptly return all Confidential Information to Seel or destroy the information, at Platform’s sole expense, except to the extent necessary for Platform to perform any continuing obligations of Platform under this Agreement or as required by law. Platform shall maintain the confidentiality and security of any Confidential Information so retained in accordance with the requirements of this Agreement and, at its sole expense, return or destroy the Confidential Information promptly once it no longer is required to be maintained.
7.3. If Platform is required by law, including by interrogatories, requests for information or other documents in legal proceedings, subpoena, civil investigative demand or any other similar process, to disclose Confidential Information, Platform shall, to the extent not prohibited by law, provide Seel with prompt written notice so that Seel has an opportunity to seek a protective order or other appropriate remedy. If such remedy is not obtained or Seel waives its right to obtain such remedy, Platform shall disclose only that portion of the Confidential Information which it is legally required to disclose, and Platform shall exercise commercially reasonable efforts to obtain reliable assurance that confidential treatment shall be accorded any Confidential Information so disclosed.
7.4. Platform shall maintain commercially reasonable safeguards to protect against the disclosure or unauthorized use of Confidential Information in its care or custody. If Platform discovers or is notified of a breach or reasonably suspected breach of security relating to Confidential Information (a “Security Breach”), Platform shall notify Seel as soon as practicable but no event later than twenty-four (24) hours after Platform’s discovery or receipt of notification of the Security Breach. Platform shall provide such information as Seel may request concerning any such Security Breach and any affected Confidential Information and persons and shall cooperate fully with Seel and its designees to investigate and mitigate the Security Breach.
8. PRIVACY OF PERSONAL DATA.
8.1. Platform agrees that Seel may maintain and use personal data contained in Platform Content in accordance with Seel’s privacy policy, as may be amended from time to time in accordance with applicable law, and which is incorporated by reference to the extent applicable to the Services.
8.2. Platform agrees to provide Seel only the Platform Content that is required by the Services. Platform represents and warrants that it has provided notice to, and obtained consent from, any third party individuals whose personal data Platform supplies to Seel with regard to the purposes for which such third party’s personal data has been collected, the intended recipients or categories of recipients of the third party’s personal data, how the third party can access and, if necessary, rectify the data Platform collects about them. Platform further agrees to provide such notice and obtain such consent with regard to any third party personal data Platform supplies to Seel in the future. Seel is not responsible for any consequences resulting from Platform’s failure to provide notice or receive consent from such individuals or for Platform providing incomplete or inaccurate information.
9. TERM AND TERMINATION.
9.1. Term. This Agreement shall be effective on Platform’s first access to or use of the Services and will continue in effect until terminated in accordance with this Section 9 (such period during which the Agreement is in effect, the “Term”).
9.2. Termination. Seel may terminate this Agreement or suspend the Services at any time for no reason or any reason, including but not limited to Platform’s violation of this Agreement. Either party may terminate this Agreement for a material breach that is not cured within thirty (30) days after written notice by the other party or immediately upon written notice of termination in the event of a material breach that by its nature cannot be remedied within thirty (30) days. In addition, either party may terminate this Agreement in the event the Services produce unsustainable losses, as determined by the party suffering such losses in its sole discretion, upon fourteen (14) days prior written notice to the other party.
9.3. Effect of Termination. All Addenda in effect on the date this Agreement is terminated shall terminate simultaneously with termination of this Agreement. Upon termination of this Agreement, Platform shall immediately cease use of all Services provided under all Addenda and delete or destroy all copies of the Documentation in the possession or control of Platform, except to the extent necessary to administer Seel Products sold prior to the effective date of termination. Termination of this Agreement shall not impair either party’s then-accrued rights, obligations, liabilities or remedies. For the avoidance of doubt, Seel shall continue to provide the Services to all Customers who have purchased the Seel Product prior to the effective date of termination, and Platform shall continue to administer such Seel Products and provide Seel with all Seel Product Fees received after the effective date of termination in accordance with this Agreement, including any Addenda attached hereto.
9.4. Survival. The following sections will survive the termination or expiration of this Agreement: 2.1, 2.2, 3, 4, 5, 6, 7.1, 7.2, 7.3, 7.4, 8.1, 8.2, 9.3, 9.4, 10, 11, 12.1, 12.2 and 13 in its entirety.
10. PUBLICITY.
Seel may develop reference materials and media relations documents regarding this Agreement and/or Platform’s usage and experience with Seel. Seel may use Platform’s name and its trademark as a reference both publicly and privately, in marketing and promotional materials, including but not limited to, press releases, newsletter articles, website references, and e-mail. Platform shall not use Seel’s name or its trademarks for any purpose other than to perform its obligations under this Agreement without Seel’s prior written consent.
11. CONSENT TO ELECTRONIC COMMUNICATIONS.
Platform acknowledges and agrees that Seel may provide notices and other disclosures to Platform, required by this Agreement, any other agreement, or law, electronically by posting such notices or other disclosures through the Services or by emailing it to Platform at any email address provided to Seel by Platform. Such notices or other disclosures shall be considered received by Platform following the posting through the Services or twenty-four (24) hours following the email being sent to Platform, as applicable. Any such electronic notice or other disclosure shall have the same effect and meaning as if it had been provided to Platform as a paper copy.
12. THIRD PARTY SERVICES.
12.1. Integration with Third Party Services. The Services may contain features designed to interoperate with products, applications, or services not provided by Seel, including, without limitation, the products, applications and services provided by Shopify or its affiliates (collectively, each a “Third Party Service”). If required for Seel to provide the Services, Platform shall obtain access to any such Third Party Service from its provider and grant Seel access to Platform’s account(s) on any such Third Party Service, including “Collaborator Access” to the products, applications and services provided by Shopify and its affiliates. Platform also shall provide, and shall cause the provider of the Third Party Service to provide, Seel with any reasonably requested information and materials needed to integrate the Third Party Service with the Services.
12.2. Permissions; Disclaimer. If Platform chooses to use a Third Party Service with the Services, Platform grants Seel permission to allow the Third Party Service and its provider to access any data (including, without limitation, data that may constitute Confidential Information) provided to Seel in connection with the Services as required for the interoperation of that Third Party Service with the Services. Seel is not responsible for any disclosure, modification or deletion of such data resulting from access by any Third Party Service or its provider. Any acquisition by Platform of a Third Party Service, and any exchange of data between Platform and any Third Party Service or its provider, is solely between Platform and the applicable third-party provider. Seel does not warrant or support Third Party Service or other third-party products or Services. Further, Seel cannot guarantee the continued availability of any Service features that interoperate with Third Party Service, and may cease providing them without being in breach of this Agreement or entitling Platform to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third Party Service ceases to make the Third Party Service available for interoperation with the corresponding Service features in a manner acceptable to Seel.
13. GENERAL PROVISIONS.
13.1. Exclusivity. This Agreement is not an agreement for exclusive dealing by Seel. Seel has the right to provide similar services to other platforms.
13.2. Service Availability. Seel performs and maintains regular database backups according to the retention policy appropriate for the particular system. Seel incorporates database and system maintenance operations and processes designed to address data consistency, indexing, and integrity requirements that also help improve query performance. Seel has implemented and will maintain commercially reasonable measures intended to avoid unplanned Service interruptions. Seel has no obligation to notify Platform in advance of planned Service interruptions. In the event of an unplanned Service interruption, Platform may contact Seel for support. The Service depends on the availability of the data from Platform and third-party providers, which Seel has no control over. Platform is responsible for making such data available that is necessary for Seel to provide the Service.
13.3. Force Majeure. If the performance of this Agreement, or any obligation hereunder, is prevented or interfered with by any act or condition whatsoever beyond the reasonable control of, and not occasioned by the fault or negligence of Seel (“Force Majeure”), Seel shall be excused from such performance to the extent of such prevention or interference.
13.4. Nature of the Relationship. In performing hereunder, both parties are acting as independent contractors and neither party undertakes to perform any obligation of the other, whether regulatory or contractual, or to assume any responsibility for the other’s business or operations. Nothing in this Agreement shall be deemed to constitute a partnership or joint venture between Seel and Platform.
13.5. Notices to Seel. Any notice or approval required or permitted under this Agreement will be in writing and will be sent by Platform via email to the following email address for Seel, or to any other address that may be designated by prior written notice given in accordance with this Section.
Attn: Bill Liu
Email: merchant@seel.com
Notice will be deemed received on the date sent by email if sent during normal business hours of the recipient and on the next business day if sent after normal business hours of the recipient.
13.6. Construction and Interpretation. All section headings are for convenience only and shall not affect the interpretation or construction of this Agreement. For all purposes of this Agreement, the words “including,” “included” and “includes” mean inclusion without limitation.
13.7. Severability. If any provision of this Agreement is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not). If an unenforceable provision is modified or disregarded in accordance with this Section, the rest of the Agreement is to remain in effect as written, and the unenforceable provision is to remain as written in any circumstances other than those in which the provision is held to be unenforceable.
13.8. Governing Law; Venue. This Agreement will be construed under the laws of the State of California other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of California. Each party irrevocably consents to the exclusive personal jurisdiction of the state or federal courts located in San Francisco for any matter arising out of or relating to this Agreement. Each party hereby submits to the jurisdiction of these courts, acknowledges that venue is proper in such courts, agrees to file all pleadings in such courts, and waives any objection to venue there. THE PARTIES HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
13.9. Entire Agreement; Modification. This Agreement, including any authorized Addenda and exhibits thereto, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior writings and understandings, including any prior agreements or instruments between the parties, if any. This Agreement may not be modified by Platform except by written agreement of Seel. Seel reserves the right to discontinue or modify any aspect of the Services, including any Seel Product, and/or modify this Agreement, including by imposing new or additional terms or conditions, at any time by posting such modification on Seel’s website at https://www.seel.com/. Any such modification will be effective immediately and incorporated into this Agreement upon posting by Seel. Platform’s continued use of the Services will be deemed acceptance thereof.
13.10. Assignment. Platform may not assign any of its rights or obligations under this Agreement or delegate its performance under this Agreement to any third party without obtaining Seel’s prior written consent. Any purported assignment or delegation in violation of this Section is void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of, the parties, their successors, and their permitted assigns.
13.11. Waiver. No failure or delay by Seel in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other exercise thereof or the exercise of any other right, power or privilege. No provision hereof or right under this Agreement may be waived by Seel except by a separate writing executed by an authorized representative of Seel, which writing expressly waives an identified portion of this Agreement.
Shipping Protection Addendum
Seel has developed a proprietary Shipping Protection product (the “Shipping Protection”), which covers online purchases that are delayed in delivery and shall be offered on the Platform Website in accordance with the terms and conditions of the Agreement, including this Addendum. The effective date of this Addendum shall be the date on which Platform first accessed or used the Services for the Shipping Protection
1. DEFINITIONS.
Capitalized terms not defined in this Addendum shall have the meanings stated in the body of the Agreement. If there is any conflict between this Addendum and the body of the Agreement, this Addendum shall control.
2. HISTORICAL ORDER AND SHIPPING DATA.
Platform shall provide Seel with such historical order data and shipping data as Seel may reasonably request from time to time in connection with the Services provided under this Addendum.
3. SHIPPING PROTECTION OFFER.
Offer of Shipping Protection. Seel shall offer the Shipping Protection to Platform’s Customers for all eligible items identified within the Services as Shipping Protection Products (“Shipping Protection”). The ultimate eligibility of items for the Shipping Protection offer shall be determined by Seel in its sole discretion.
4. SHIPPING PROTECTION FEE.
Seel may charge each Customer who elects to purchase the Shipping Protection a fee, as determined by Seel in its sole discretion. Platform acknowledges and agrees that the Shipping Protection Fee may vary from product to product, transaction to transaction, and Customer to Customer in accordance with Seel’s proprietary pricing methodology. The Shipping Protection Fee is non-refundable unless the Customer’s order is canceled prior to shipment or Seel elects in its sole discretion to provide a refund.
5. ADMINISTRATION.
Platform shall administer the Shipping Protection in accordance with the following standards:
A. Integration Into Platform Website. Platform shall integrate, or permit Seel to integrate, the Shipping Protection into the Platform Website via the Seel API in accordance with the Documentation provided by Seel so that Customers may purchase the Shipping Protection through the Platform Website during the checkout process for all eligible items. Seel shall provide Platform with access to the Seel API following the effective date of this Addendum consistent with Seel’s then-standard policies and procedures. Platform shall permit Seel to embed one or more pixels on the Platform Website in connection with offering the Shipping Protection. Seel may change the format, appearance or content of the Shipping Protection information and interface displayed to Customers on the Platform Website from time to time in its sole discretion, and Platform shall grant Seel such access as is required to make such changes.
B. Collection and Remission of Shipping Protection Fees. Platform shall collect the Shipping Protection Fee and any associated sales, use or other taxes from each Customer who purchases the Shipping Protection at the time of sale and shall remit by agreement all Shipping Protection Fees and any associated sales, use or other taxes to Shoplazza. Shoplazza then remits the fees to Seel based on the agreed terms for Shipping Protection to take effect.
C. Product Information. Platform shall permit Seel to collect Product Information in the course of offering and administering the Shipping Protection. Seel shall be the sole owner of Product Information; provided, however, any information that is both Product Information and Platform Content shall be jointly owned by the parties. “Product Information” means information about Customers who purchase the Shipping Protection that Seel deems necessary to offer and administer Shipping Protection and data collected from the administration of Shipping Protection, including customer name, shipping address, phone number, date of purchasing Shipping Protection, information of the order that they purchase Shipping Protection for, and information on order shipment and delivery dates, testing practices, data collected through Seel’s pixel embedded on the Platform Website, and such other information as Seel may reasonably specify. Product Information does not include information that (a) is or becomes generally available to the public, other than as a result of disclosure by Platform in violation of this Addendum; (b) becomes available to Platform from a third party, provided that such third party, so far as Platform is aware, does not have a contractual, legal or fiduciary obligation of confidentiality to Seel any other person with respect to such information; or (c) has been independently developed by Platform or its contractors without reference to any Product Information.
6. PLATFORM GOOD FAITH ADMINISTRATION OF SHIPPING PROTECTION.
Platform shall not purchase and shall not permit any of its employees, agents or contractors to purchase the Shipping Protection and shall at all times act in good faith in performance of its obligations under this Addendum.
7. PLATFORM CUSTOMER SERVICES AND SUPPORT.
Platform shall provide a single point of contact for Seel to forward Customer inquiries and complaints relating to Platform’s services. Platform shall respond within twenty-four (24) hours to inquiries and requests from Seel regarding any issues relating to Platform’s services. Platform shall be solely responsible for responding to and resolving all Customer inquiries and complaints regarding Platform’s services. Platform shall maintain commercially reasonable resources for handling Customer inquiries and complaints and shall process and respond to all such inquiries and complaints in a diligent and timely manner in accordance with commercially reasonable standards.
8. AUDIT.
If as the result of any audit conducted by Seel or its designees of Platform’s books, records or operations, Seel determines that Platform has underpaid any amounts due to Seel under this Addendum, Platform shall reimburse Seel the amount of any underpayments and pay Seel a penalty equal to 20% of the total underpayment.
9. LICENSE TO ACCESS AND USE SEEL API.
A. Grant. Subject to the terms and conditions of this Addendum, Seel hereby grants to Platform a limited, nonexclusive, nontransferable license to: (i) access and use the Seel API, during the Term, solely to make the Shipping Protection available to Customers via the Platform Website; and (ii) use and reproduce a reasonable number of copies of the Documentation for internal use in order to support Platform’s use of the Seel API. Seel grants the Platform this license on a royalty-free basis.
B. Acceptable Use. Platform shall use the Seel API solely in accordance with the Documentation, and Platform acknowledges and agrees that Seel may (but have no obligation to) use automated, technical or other means to monitor use of the Seel API and Services. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Platform will not, and will not permit or authorize its affiliates or third parties to: (a) rent, lease, or, except as explicitly set forth in this Agreement, otherwise permit third parties to use the Seel API or Documentation; (b) use the Seel API to provide services to third parties that violates any law, regulation, ordinance or code; (c) circumvent or disable any security or other technological features or measures of the Seel API or the Services, or attempt to probe, scan or test the vulnerability of a network or system, or to breach security or authentication measures; (d) upload or provide for processing any information or material that is illegal, defamatory, offensive, abusive, obscene, or that violates privacy or intellectual property rights of any third party; (e) use the Seel API to harm, threaten, or harass another person or organization; or (f) send, store, or distribute any viruses, worms, Trojan horses, or other disabling code or malware component harmful to a network or system. Platform will neither alter nor remove any trademark, copyright notice, or other proprietary rights notice that may appear in any part of the Seel API or Documentation and will include all such notices on any copies. Platform will be directly and fully responsible to Seel for its affiliates and third party users’ conduct and any breach of this Agreement by them. Seel reserves the right to deactivate, change, or require Platform to change Platform’s user ID and any custom or vanity URLs, custom links, or vanity domains Platform may obtain through the Service or Seel API for any reason or for no reason. Seel may exercise such right at any time, with or without prior notice.
10. BETA VERSION AND FEEDBACK.
If Platform wishes to utilize an evaluation “beta” version of the Seel API and other Services provided by Seel in connection with offering the Shipping Protection, and Seel makes a beta version of the Services available to Platform, the following shall apply: Platform understands and agrees that the Services represent a beta test version of unreleased software and services that may contain bugs, defects, and errors. In exchange for the licenses granted to Platform to use such software and products, Platform agrees to use good faith efforts to test, use, and evaluate the Services in live operations, and to promptly report to Seel, either orally or in writing, any errors, problems, defects, or suggestions for changes and improvements to the Services (collectively, “Feedback”). Platform acknowledges and agrees that all Feedback and all intellectual property rights therein are the exclusive property of Seel, and hereby assigns to Seel, all right, title and interest to any and all Feedback. Without limiting the foregoing, Seel may incorporate Feedback into its products and services and Platform will gain no rights in such products or services by virtue of having disclosed Feedback. Platform agrees and acknowledges that the products and services incorporating such Feedback will be the sole and exclusive property of Seel, and Platform will gain no right, title or interest in or to the Services, Documentation or any Seel products by virtue of Platform’s provision of Feedback to Seel or for any other reason.
11. CONFIDENTIALITY AND SECURITY.
A. Confidentiality.
i. The parties agree Product Information is confidential and proprietary to Seel. Platform shall use Product Information solely for the purpose of performing its obligations under this Addendum and shall not disclose Product Information to any person other than as permitted by this Addendum. Platform shall not disclose Product Information to any third party.
ii. If Platform is required by law, including by interrogatories, requests for information or other documents in legal proceedings, subpoena, civil investigative demand or any other similar process, to disclose any Product Information, Platform shall, to the extent not prohibited by law, provide Seel with prompt written notice so that Seel has an opportunity to seek a protective order or other appropriate remedy. If such remedy is not obtained or Seel waives its right to obtain such remedy, Platform shall disclose only that portion of the Product Information which it is legally required to disclose, and Platform shall exercise commercially reasonable efforts to obtain reliable assurance that confidential treatment shall be accorded any Product Information so disclosed.
iii. Upon termination of this Addendum, Platform shall return or destroy all Product Information at its sole expense, except to the extent necessary to perform Platform’s obligations with respect to Shipping Protection sold prior to termination. Notwithstanding the foregoing, Platform may retain Product Information as required by law. Platform shall maintain the confidentiality and security of any Product Information so retained in accordance with the requirements of this Addendum and, at its sole expense, return or destroy the Product Information promptly once it no longer is required to be maintained.
B. Data Security. Platform shall maintain commercially reasonable safeguards to protect against the disclosure or unauthorized use of Product Information in its care or custody. If Platform discovers or is notified of a breach or potential breach of security relating to Product Information (a “Security Breach”), Platform shall notify Seel as soon as practicable but no event later than twenty-four (24) hours after Platform’s discovery or receipt of notification of the Security Breach. Platform shall provide such information as Seel may request concerning any Security Breach and any affected or potentially affected Product Information and shall cooperate fully with Seel and Seel’s designees to investigate and mitigate the Security Breach.
12. SUSPENSION OF SERVICES.
Seel may suspend the Services provided under this Addendum at any time at Seel’s sole discretion.
13. TERMINATION.
A. Right to Terminate this Addendum. Seel may terminate this Addendum at any time with or without cause upon written notice to Platform.
B. Termination if Agreement is Terminated. If the Agreement is terminated, this Addendum shall terminate simultaneously with termination of the Agreement.
C. Effect of Termination. Upon termination of this Addendum, Platform shall immediately cease use of all Services provided under this Addendum and delete or destroy all copies of the Documentation provided in connection with this Addendum in the possession or control of Platform, except to the extent necessary to administer Shipping Protection sold prior to the effective date of termination. Termination of this Addendum shall not impair either party’s then-accrued rights, obligations, liabilities or remedies. For the avoidance of doubt, Seel shall continue to provide the Services described in this Addendum to all Customers who have purchased Shipping Protection prior to the effective date of termination, and Platform shall continue to administer such Shipping Protection and provide Seel with all Shipping Protection Fees received after the effective date of termination in accordance with this Addendum. Termination of this Addendum will not affect any other Addendum in effect between Seel and the Platform. The following Sections of this Addendum shall survive termination: 5.B, 5.C, 6, 7, 8, 9.B, 10, 11, 12 and 13.