Master Services Agreement

This Master Services Agreement (“Agreement”) is between Commerce.com US, Inc. and any of Commerce’s affiliates, subsidiaries, including, but not limited to Feedonomics Holdings, LLC, successors, or parent companies (“Commerce”) and Customer and its affiliates, subsidiaries, successors, or parent companies thereof (“Customer”) (collectively, “the Parties”) to establish the general terms and conditions that govern the service relationship between both parties. This Agreement outlines and governs your rights and obligations as a user of our services and is designed to ensure a clear understanding of the terms of our relationship. By utilizing the Services, you accept these terms and conditions in full. The term "Commerce," "we," "us," or "our" refers to the Commerce entity providing the Services. "You" or “Customer” refers to the individual or entity using the Services, whether by registering an account, clicking to accept this Agreement, executing an Order that references this Agreement, or simply by using our Services in any capacity.



Your access to and use of the Services is also subject to any additional guidelines or rules applicable to such Services or features that may be posted from time to time and any addenda agreed to by the Parties. All such guidelines or rules are hereby incorporated by reference into this Agreement.



Except as may be provided in an Order Form, this Agreement is effective as of the date you first use or access any Service or when you click "I agree" (or similar button or checkbox) to register for an account, whichever occurs first. Your continued use of the Services constitutes your acceptance of this Agreement. This Agreement does not require a physical signature to be legally binding; your electronic assent or use of our Services signifies your agreement to these terms.



PLEASE NOTE: BY SIGNING UP FOR A SERVICE USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND THAT ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, AND "YOU" AND “CUSTOMER” IN THIS CONTEXT WILL REFER TO THAT ENTITY. IF YOU DO NOT HAVE THE NECESSARY AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.



The Services may not be accessed for the purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes without our prior written consent. Direct competitors of Commerce are expressly prohibited from accessing the Services, except with our explicit prior written approval.



Commerce reserves the right to update or modify this Agreement at any time, with updates taking immediate effect upon posting to our website or notification to you.



By engaging with Commerce's Services, you acknowledge that you have read, understood, and agree to be bound by this Agreement between you and Commerce.



1. Scope and Definitions
   1. Scope. This Agreement governs your use of the websites and the Services. Except as otherwise specified, this Agreement does not apply to Third-Party Products, which are governed by their own terms of service.
   2. Incorporated Terms. The following policies, guidelines, and agreements (“Incorporated Terms”) are hereby incorporated into, and form an integral part of, the Agreement to which you are agreeing to be bound:
      1. Privacy Policy
         1. (Commerce Specific)
         2. (Feedonomics Specific)
      2. Acceptable Use Policy
      3. API Terms
      4. Fees and Billing Terms
      5. Infringing Materials Protocol
      6. Jurisdiction-Specific Terms
      7. Merchant-Client Terms
      8. Mobile App Terms
      9. Store Terms
      10. Data Processing Addendum
      11. Unified Billing Terms
          1. (US, UK, & Canada)
          2. (India Specific)
      12. Professional Services 
   3. Certain Definitions.
      1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
      2. “Ecommerce Platform” means the subscription to Commerce’s ecommerce software-as-a-service platform
      3. “Feedonomics Platform” means Feedonomics proprietary software which uses data to deliver the Services under this Agreement. The Feedonomics Platform manages and aggregates product information (e.g. image files, text, templates, product descriptions, prices, etc.), and optimizes product catalogs to syndicate listings across hundreds of online channels (data feed management), and for the purpose of aggregating order data, bridging order management and fulfillment while enabling Customers to manage order data and volumes through a centralized platform.
      4. “Fulfillment” means the Customer’s ability to access the Ecommerce Platform via the Commerce control panel or begin Services coordination. This does not include post-Fulfillment delays attributable to actions or inactions on the part of the Customer, such as failure to validate their account, accessing the fulfilled Ecommerce Platform or Service, development and setup activities, or the go-live or launching of a Store.
      5. “Extension” means a service developed by a third party but implemented and provided by Commerce and which is identified in the Processing Details section of the Program Document attached to an Order Form. For the avoidance of doubt, an Extension is a Service and is not a Third-Party Product.
      6. “Multi-Storefront” or “MSF” means the ability to manage multiple unique Storefronts within one Store. A Multi-Storefront enabled Store must meetadditional requirements.
      7. “Order Form” or “Order” means one or more order forms that reference this Agreement and are executed by Customer and Commerce or its Affiliate(s) for the purchase of Services. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto; however pricing and Services are subject to change with the addition of each new Customer Affiliate’s Order Form.
      8. “Services” means all products, services, and materials offered by Commerce or its Affiliates which are located on or accessible through the Website or otherwise described in an Order Form or Program Document, including an Extension.
      9. “Store” means an individual admin panel for the Customer to connect and manage one or multiple Storefront(s) by way of distinct settings and configurations.
      10. “Storefront” means an individual website, or a shopping cart offered through the Ecommerce Platform identified by a unique domain.
      11. “Third-Party Product(s)” means any third-party information, website, product, service, or materials referenced in, accessible through, or provided in connection with, the Website or Services.
      12. “Website” means the Commerce website located at www.commerce.com (including all associated internet country codes), together with all Commerce websites accessible there, and the Account control panel.
   4. Contracting Entity. “Commerce” means the Commerce entity with which you are entering into this Agreement. If you have previously entered into an agreement with a Commerce entity, then “Commerce” means that entity. If you have not previously entered into an agreement with a Commerce entity, then “Commerce” means the entity identified in the following table:

1. Eligibility.
   1. Minimum Age. The Services are available only to persons who are the age of majority and can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not intended to be used by individuals under the age of 18. If you do not qualify, please do not use the Services or access the Website.
   2. Registration. In order to use the Services, you must establish a Services account (“Account”) by registering with Commerce. You may be required to submit a valid means of payment for which you are authorized to purchase Services. You will provide true, accurate, current, and complete information when registering for an Account and will update the information as necessary to keep your Account and payment information current. As part of the registration process, you will provide Commerce with a user name and password for your Account (together “Account Credentials”). Commerce reserves the right to refuse registration of, or cancel, accounts that violate this Agreement or Commerce’s Acceptable Use Policy.
2. Payment Method. Unless otherwise agreed by the Parties, Customer’s payments will occur by credit card or, subject to Commerce’s written approval (email acceptable), by PayPal or through ACH debits initiated by Commerce to an eligible account identified by Customer.
3. Security.
   1. Generally. You are responsible for maintaining the security of your Account Credentials and for all Services ordered, accessed, or otherwise used in connection with your Account Credentials and all actions taken in association therewith. You will not share your Account Credentials with any third party.
   2. Payment Cards. Commerce is responsible for the security of credit cardholder data to the extent that Commerce has control of that data. To that end, Commerce undertakes regular assessments consistent with the applicable Payment Card Industry Data Security Standards (“PCI”). You represent and warrant that you will determine the PCI merchant requirements applicable to you and your use of the Services.
   3. Checkout Environment; PCI. Commerce will provide a secure environment (including appropriate technical, physical and organizational security measures and safeguards) for customer data stored and processed via the standard Commerce checkout (“Customer Data”) in order to protect Customer Data from unauthorized access and use. Commerce’s secure environment is certified under the Payment Card Industry Data Security Standard. Commerce will maintain PCI certification for the designated portions of the Services that you use to store and process credit card data, subject to the following (each a “PCI Compliance Condition”): (i) you comply with Commerce documentation and in-product notifications, and (ii) you use a Commerce checkout environment that has not been modified except through the Commerce control panel. To the extent permitted by applicable law, Commerce excludes and disclaims any liability related to the unauthorized use of Customer Data, including liability due to PCI noncompliance, in the event any PCI Compliance Condition is not satisfied. For example, you will be solely liable for PCI compliance with respect to modifications to the checkout environment, including modifications via apps or a developer, modifications of Commerce’s distributed open source checkout code in any manner that could result in or contribute to PCI noncompliance, use of a checkout environment not provided by Commerce, or use of a payment provider for which Commerce does not provide an integration.
4. Use Restrictions. This is an agreement for Services, and you are not granted a license to any software by this Agreement. Except as permitted and non-excludable under applicable law, you will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of or included in the Services or any software, documentation or data related to the Services (“Software”); modify, translate or create derivative works based on the Services or any Software; or copy (except for archival purposes), distribute, pledge, assign or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
5. Discussion Areas.
   1. No Warranty. Commerce makes no representations or warranties with respect to any forums, blogs, private messages, emails, or other electronic discussion mediums made available through or in connection with the Services (collectively, “Discussion Areas”) or with respect to any information or materials contained in the Discussion Areas. Your use of, or reliance upon, any such information or materials is at your sole risk.
   2. Your Postings. All information, content, or materials you post to a Discussion Area must comply with the Acceptable Use Policy. Commerce will have no obligation to monitor the Discussion Areas, but may do so at its discretion and may delete, move, or edit any information or materials in the Discussion Areas.
6. Intellectual Property
   1. Reservation of Rights. Commerce, its Affiliates, and licensors retain all rights, titles, and interests in and to the Services provided, including all related intellectual property rights inherent to the software, platforms, and content delivered as part of the Service offerings. Except for the limited rights expressly granted under this Agreement, no additional rights are conveyed to you, implicitly or otherwise.
   2. Use of Services and Content. You are granted the right to access and utilize the content and services provided by Commerce, subject to the terms specified in applicable order forms, this Agreement, and accompanying documentation. This access is intended for your business use in accordance with the agreed-upon service parameters.
   3. Customer Data and Applications: You grant Commerce a non-exclusive, worldwide, limited-term license to host, copy, transmit, display, and use any applications, program code, or data created by or for you, as necessary for Commerce to operate, deliver, promote and ensure optimal operation of the services and to exercise our rights under the Agreement and as required by law. This includes allowing interoperability of client-specified third-party applications with Commerce's services, under the condition that such use does not transfer ownership of the Customer's data or intellectual property to Commerce. You represent, warrant, and agree that you have all necessary rights in the materials to grant this license
   4. Feedback: You provide Commerce and its affiliates a perpetual, irrevocable, royalty-free license to utilize suggestions, enhancement requests, recommendations, or other feedback related to the service's operation. This encompasses the right to incorporate such feedback into Commerce's services without any obligation to you.
   5. Intellectual Property in Customer Content. You retain ownership of all intellectual property rights in the content you provide while using Commerce's Services. By submitting content through Commerce's platforms, you grant Commerce a non-exclusive, worldwide, royalty-free, sublicensable right to use this content as necessary to provide the Services, in any existing or future media. You represent and warrant that you have all necessary rights to grant this license for the content provided and that the use of such content does not infringe on any third-party intellectual property rights.
   6. Restrictions and Ownership
      1. Customer Use: You agree not to use, imitate, or copy any of Commerce's trademarks, service marks, trade dress, logos, or other branding without Commerce's prior written consent. Any permitted use of Commerce's marks will inure to Commerce's benefit.
      2. Commerce IP: All intellectual property associated with the Commerce websites, services, APIs, software, documentation, and other materials, including enhancements and updates, are owned by Commerce and/or its Affiliates or partners. You are granted a limited license to use these materials in compliance with the Agreement terms, solely for the duration of the service period.
7. Confidentiality.
   1. Definition of Confidential Information. “Confidential Information” is defined as all business, technical, financial, and other information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether communicated orally or in writing. This includes information marked as confidential or designated as confidential orally, as well as Commerce's proprietary technologies, performance data related to the Services, customer data, service terms and pricing, business and marketing strategies, technology and technical information, product plans and designs, and business processes. Confidential Information also includes any other information, whether written or oral, that the Receiving Party should reasonably understand is confidential to the Disclosing Party. Commerce Confidential Information is further defined as including any information regarding a Services weakness or vulnerability identified through penetration testing, vulnerability assessments, vulnerability scanning, security audits, or any other forms of Platform or Service testing conducted by or on behalf of Customer. However, Confidential Information does not cover information that: (i) is already publicly known without the Receiving Party's breach of this Agreement; (ii) was in the Receiving Party's possession prior to disclosure by the Disclosing Party without an obligation of confidentiality; (iii) is obtained from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the Receiving Party without reference to the Disclosing Party's Confidential Information.
   2. Obligations to Protect Confidential Information. The Receiving Party agrees to: (i) maintain the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care that it uses to protect its own Confidential Information, but not less than a commercially reasonable standard of care; (ii) use the Confidential Information solely for the purpose of fulfilling its obligations and exercising its rights under this Agreement; and (iii) restrict disclosure of Confidential Information to its employees, consultants, and contractors who need to know such information for purposes related to this Agreement and who are bound by confidentiality obligations that are at least as protective as those outlined herein.
   3. Permitted Disclosures. The Receiving Party may disclose Confidential Information (i) to the extent necessary to protect or enforce its rights hereunder or (ii) if required by law, regulation, or a valid court order, provided that for such compelled disclosures (if not legally prohibited): (a) Receiving Party gives prompt notice to the Disclosing Party to allow for the opportunity to challenge or limit the disclosure at the Disclosing Party’s expense, and (b) Receiving Party discloses only the minimum amount of Confidential Information necessary to comply with the legal requirement, subject to obtaining confidential treatment for the disclosed information where possible.
   4. Ownership and Use. Each party retains all rights and ownership in its Confidential Information. The disclosure of Confidential Information under this Agreement does not convey any rights, title, or interests in the information to the Receiving Party, except as expressly authorized by the Disclosing Party in writing.
   5. Survival and Equitable Relief. The confidentiality obligations under this Agreement shall survive the termination or expiration of this Agreement for as long as the Confidential Information remains confidential. The Receiving Party acknowledges that unauthorized disclosure of Confidential Information may cause substantial harm to the Disclosing Party, for which monetary damages would be insufficient, and thus agrees that the Disclosing Party will be entitled to seek equitable relief, including injunctions and specific performance without the necessity of posting a bond, in the event of any breach of confidentiality obligations, in addition to any other remedies available at law or in equity.
   6. Backup Storage. For its own operational efficiencies and purposes, Commerce from time to time back up data on its servers, but is under no obligation or duty to you to do so under this Agreement or otherwise. IT IS SOLELY YOUR DUTY AND RESPONSIBILITY TO BACKUP SEPARATELY YOUR FILES AND DATA THAT MAY RESIDE ON Commerce SERVERS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL Commerce BE LIABLE TO YOU, YOUR USERS, OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, FOR LOSS OF FILES AND/OR DATA ON ANY Commerce SERVER.
   7. No Assignment by You. You may not assign your rights or obligations under this Agreement without the prior written consent of Commerce, which Commerce may refuse in its sole discretion. Any attempted assignment without prior written consent from Commerce will be deemed null and void. Commerce may assign its rights and/or obligations under this Agreement at any time. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
8. Aggregated and Anonymized Use of Customer (Shopper) Data. Commerce may use data submitted by you on an aggregated and anonymized basis for internal purposes, including to analyze trends, improve our technology and Services, and develop new products or features.
9. Disclaimer of Warranties.
   1. General Representations. YOUR USE OF THE WEBSITE, SOFTWARE, AND SERVICES WILL BE AT YOUR OWN RISK AND ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. COMMERCE AND ITS SUPPLIERS AND AFFILIATES DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
   2. Specific Warranties and Disclaimers. COMMERCE MAKES NO WARRANTIES, CONDITIONS OR REPRESENTATIONS ABOUT (i) THE ABILITY OF THE WEBSITE, SERVICES, OR SOFTWARE TO PERFORM WITHOUT LIMITATION OR RESTRICTION IN ANY GIVEN ENVIRONMENT, (ii) THE ACCURACY, COMPLETENESS, OR CONTENT OF THE WEBSITE, SERVICES, OR SOFTWARE, (iii) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY LINKED SITES (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE), AND/OR (iv) THIRD-PARTY PRODUCTS, AND COMMERCE ASSUMES NO LIABILITY OR RESPONSIBILITY THEREWITH.
   3. Third-Party Products and Advice. THE REFERENCE TO, OR AVAILABILITY OF, THIRD-PARTY PRODUCTS IN CONNECTION WITH THE SERVICES OR WEBSITE DOES NOT CONSTITUTE, AND WILL NOT BE CONSTRUED AS CONSTITUTING, AN ENDORSEMENT, AUTHORIZATION, SPONSORSHIP, OR AFFILIATION BY OR WITH COMMERCE WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS.
   4. Legal, Tax, Financial, Other Communications. NO ORAL OR WRITTEN INFORMATION OR ADVICE OR COMMUNICATIONS PROVIDED BY COMMERCE OR ANY OF ITS EMPLOYEES WILL CONSTITUTE PERSONAL, LEGAL, TAX OR FINANCIAL ADVICE OR CREATE A WARRANTY, CONDITION OR REPRESENTATION OF ANY KIND.
   5. Survival and Jurisdictional Variations. THESE DISCLAIMERS APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF IMPLIED REPRESENTATIONS, CONDITIONS OR WARRANTIES, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH EVENT, COMMERCE’S WARRANTIES, CONDITIONS AND REPRESENTATIONS WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
10. Indemnification. The Customer shall, at its expense, defend, indemnify, and hold harmless Commerce, its suppliers and Affiliates from and against any claims, lawsuits, or proceedings brought against Commerce by a third party arising from the Customer's use of Commerce's services in a manner not authorized by this Agreement, or from the Customer's data, or from any content or application not provided by Commerce. The Customer will indemnify Commerce against damages, legal fees, and costs awarded against Commerce or part of a settlement approved by the Customer.
11. Limitation of Liability.
    1. General Limitation. THE AGGREGATE LIABILITY OF EACH PARTY, TOGETHER WITH ALL ITS AFFILIATES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY THE CUSTOMER AND ITS AFFILIATES TO COMMERCE FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT FROM WHICH THE LIABILITY AROSE. THIS LIMITATION APPLIES REGARDLESS OF THE ACTION'S NATURE, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, AND SHALL NOT LIMIT THE CUSTOMER'S PAYMENT OBLIGATIONS UNDER ANY OTHER SECTION OF THIS AGREEMENT.
    2. Exclusion of Certain Damages. NEITHER COMMERCE NOR ITS SUPPLIERS AND AFFILIATES, NOR THE CUSTOMER AND ITS AFFILIATES, WILL BE LIABLE FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, PUNITIVE, OR EXEMPLARY DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY. THIS EXCLUSION APPLIES EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING DOES NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
    3. Excluded Claims. THIS LIMITATION OF LIABILITY DOES NOT COVER (1) THE CUSTOMER'S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT; (2) DEATH, OR PERSONAL INJURY; OR (3) VIOLATIONS OF COMMERCE’S ACCEPTABLE USE POLICY; OR (4) ANY OTHER LIABILITIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
    4. Failure of Essential Purpose. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS AND EXCLUSIONS SPECIFIED HEREIN SHALL APPLY IRRESPECTIVE OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE. THESE PROVISIONS SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
    5. Time Limitation for Claims. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. ANY CLAIMS ARISING OUT OF OR RELATED TO THE USE OF COMMERCE'S WEBSITES, SOFTWARE, OR SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CLAIMS SHALL BE PERMANENTLY BARRED.
    6. Jurisdictional Variations. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT FULLY APPLY IN THOSE JURISDICTIONS. IN SUCH CASES, COMMERCE'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW. THIS LIMITATION OF LIABILITY SECTION WILL SURVIVE THE TERMINATION OR EXPIRATION OF THE AGREEMENT.
12. Term and Termination.
    1. Term. The Services will be provided to you for the duration of your Services subscription or Order Form, unless earlier canceled or terminated by Commerce. This Agreement will automatically terminate upon the cancellation of all of your Services subscriptions.
    2. Termination.
       1. For Cause: Either party may terminate this Agreement for cause if the other party materially breaches the Agreement and fails to cure such breach within thirty (30) days after written notice, or if the other party becomes insolvent, files for bankruptcy, or undergoes similar proceedings.
       2. For Convenience: Except for Enterprise Customers who have executed an Order Form in relation to the Ecommerce Platform, Commerce reserves the right to terminate the Agreement or any service subscriptions at any time with or without cause, upon written notice.
    3. Effects of Termination. Upon termination of this Agreement by either party for any reason, or cancellation or expiration of your Services subscriptions: (i) Commerce will cease providing the Services; (ii) you will not be entitled to any refunds of any subscription or usage fees, or any other fees, pro rata or otherwise; (iii) any fees you owe to Commerce will immediately become due and payable in full; and (iv) Commerce may delete your archived data within 30 days. All sections of the Agreement that expressly provide for survival, or by their nature should survive, will survive termination of the Agreement, including, without limitation, confidentiality, indemnification, warranty disclaimers, and limitations of liability.
    4. Survival. Certain provisions will survive the termination or expiration of this Agreement, including but not limited to Confidentiality, Indemnification, Warranty Disclaimers, Limitation of Liability, and any other provisions by their nature intended to survive such termination or expiration. These include obligations related to the protection of each party's intellectual property, payment obligations, and any rights or obligations of the Parties under the Agreement that, by their nature, should not terminate upon termination of the Agreement.
13. Arbitration Agreement and Class Action Waiver.
    1. Applicability. This Arbitration Agreement and Class Action Waiver (“Arbitration Agreement”) applies only to Customers domiciled in the United States. If you are not domiciled in the United States, then this Arbitration Agreement does not apply to you.
    2. Purpose. This Arbitration Agreement and Class Action Waiver (“Arbitration Agreement”) facilitates the prompt and efficient resolution of any disputes that may arise between you and Commerce. For the purpose of this Arbitration Agreement, “Commerce” means Commerce.com US, Inc., a Texas corporation, and each of its parents, subsidiaries, and affiliated companies, and each of their respective officers, directors, employees, and agents. This Arbitration Agreement applies to this Agreement and any other agreement you may have with Commerce. Arbitration is a form of private dispute resolution in which parties to a contract agree to submit their disputes and potential disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such dispute(s) decided in a lawsuit, in court, by a judge or jury trial. You have the right to opt-out of this Arbitration Agreement (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury. Please read this Arbitration Agreement carefully. It provides that all disputes between you and Commerce will be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this Arbitration Agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Entering into this Arbitration Agreement constitutes a waiver of your right to litigate claims in court and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Arbitration Agreement and can award the same damages and relief as a court (including attorney’s fees, if otherwise authorized by applicable law). The term “Dispute” means any dispute, claim, or controversy between you and Commerce regarding any aspect of your relationship with Commerce, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced. WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY INDIVIDUAL BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE CONSOLIDATED OR ARBITRATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
    3. Pre-Arbitration Dispute Resolution. For all Disputes you must first give Commerce an opportunity to resolve the Dispute. You must commence this process by mailing written notification to: Legal Department Commerce.com US, Inc. 11920 Alterra Parkway D11 / Suite 100, 8th Floor Austin, TX 78758 That written notification must include (1) your name, (2) your address, (3) a written description of the Dispute, and (4) a description of the specific relief you seek. If Commerce does not resolve the Dispute to your satisfaction within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. In the event that the requirements of this Section 12.3 place you in conflict with any applicable statute of limitations periods, the statute of limitations shall be tolled from the date on which Commerce receives your written notification until the earlier of: (i) the date on which Commerce and you resolve the Dispute; (ii) the date on which Commerce provides you written notification that Commerce will not informally resolve the Dispute; or (iii) 45 days after the date on which Commerce receives your written notification. In no event does Commerce’s agreement to the aforementioned tolling period constitute any waiver or abandonment of Commerce’s rights or defenses.
    4. Arbitration Procedures. If this Arbitration Agreement applies and the Dispute is not resolved as provided above (“Pre-Arbitration Claim Resolution”) either you or Commerce may initiate arbitration proceedings. The American Arbitration Association (“AAA”),www.adr.orgwill arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator who shall be knowledgeable in the subject area in which the dispute arises. The arbitration will be commenced as an individual arbitration, and will in no event be commenced as a representative or class arbitration. All issues will be for the arbitrator to decide, including the scope of this Arbitration Agreement. For arbitration before the AAA, the AAA’s Commercial Arbitration Rules and the AAA’s Optional Rules For Emergency Measures Of Protection will apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. This Arbitration Agreement governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action, representative action, or collective action procedures or rules apply to the arbitration. Because your contract with Commerce, this Agreement, and this Arbitration Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”), if applicable, governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
    5. Exclusions from Arbitration/Right to Opt Out. Notwithstanding the above, you or Commerce may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court or equivalent in the applicable jurisdiction; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to Legal Department Commerce.com US, Inc. 11920 Alterra Parkway D11 / Suite 100, 8th Floor Austin, TX 78758 Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Commerce through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with Commerce. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
    6. Arbitration Award. The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator’s award will be in writing, will be signed by the arbitrator, and will include a determination of all the questions submitted to the arbitrator the decision of which is necessary in order to determine the controversy. Such award by the arbitrator will be final and binding on the Parties, except for any right of appeal provided by law, and may be entered in any court having jurisdiction over the Parties for purposes of enforcement. As part of the award, the arbitrator may award reasonable arbitration and attorney fees and costs.
    7. Location of Arbitration. You may initiate arbitration in the federal judicial district that includes your address that you provide in your written notification of Pre-Arbitration Dispute Resolution. In the event that Commerce initiates an arbitration, it may only do so in the federal judicial district that includes your address that you provide in your written notification of Pre-Arbitration Dispute Resolution or the billing address for your account.
    8. Payment of Arbitration Fees and Costs. The Parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b).
    9. Class Action Waiver. The Parties agree that the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, representative action, consolidated action or private attorney general action) unless both you and Commerce specifically agree in writing to do so following initiation of the arbitration. Neither you, nor any other user of the Services, can be a class representative, class member, or otherwise participate in a class, representative, consolidated or private attorney general proceeding without having complied with the opt-out requirements above.
    10. Limitation of Procedural Rights. You understand and agree that, by entering into this Arbitration Agreement, you and Commerce are each agreeing to arbitration instead of the right to a trial before a judge or jury in a public court. In the absence of this Arbitration Agreement, you and Commerce might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). You give up those rights, to the extent permitted by applicable law. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited in arbitration. The right to appellate review of an arbitrator’s decision is much more limited than in court, and in general an arbitrator’s decision may not be appealed for errors of fact or law.
    11. Severability. If any clause within this Arbitration Agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, then this entire Arbitration Agreement will be unenforceable, and the Dispute will be decided by a court.
    12. Continuation. This Arbitration Agreement will survive the termination of your contract with Commerce and your use of the Services.
14. Anti-Corruption, Export and Sanctions Compliance. With respect to this Agreement, you represent, warrant, and covenant that you:
    1. have not and will not violate, or cause any party to be in violation of, any applicable anti-bribery or anti-corruption law (including, but not limited to, the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.S. domestic bribery statute in 18 U.S.C. 201, the U.S. Travel Act, or the UK Bribery Act 2010), anti-kickback laws, anti-money laundering and anti-terrorist financing laws, sanctions, embargoes, export controls, import controls, anti-fraud laws, or any other applicable law, regulation, or order (collectively, “Applicable ABAC Laws”);
    2. have not and will not use or apply the Services or the Website in violation of Applicable ABAC Laws;
    3. have not and will not with a corrupt, improper, or illegal intention directly or indirectly (through third parties) pay, provide, promise, offer, authorize, solicit, or accept any money, gift, hospitality, entertainment, favor, financial advantage, or other thing of value to or from any individual, organization, political party, or entity whether in the public or private sector in any country in order to obtain, retain, or direct regulatory approvals, licenses, permits, business, contracts, investments, sales, tax or duty assessments, import or export clearances, foreign exchange clearances, or other advantages;
    4. shall cause all of your employees, officers, directors, agents, contractors, vendors, and partners (collectively, “Relevant Parties”) to comply with all of the terms contained in this Anti-Corruption, Export and Sanctions Compliance Section;
    5. are not, and will ensure that your Relevant Parties and customers are not, (a) nationals, residents, agents or representatives of Iran, Cuba, North Korea, Syria, the Crimea Region of Ukraine, or any other region subject to comprehensive U.S. sanctions; (b) on the List of Specially Designated Nationals & Blocked Persons, the Sectoral Sanctions Identifications (SSI) List, or Foreign Sanctions Evaders List maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, or any other applicable list of sanctioned, embargoed, blocked, criminal, or debarred persons maintained by any U.S. or non-U.S. government, the European Union, Interpol, the United Nations, the World Bank, or any other public international organization (each such list, a “Sanctions List”); (c) an entity that is 50% or more owned, individually or in the aggregate, directly or indirectly, by, is controlled by (including without limitation by virtue of such person being a director or owning voting shares or interests), or acts, directly or indirectly, for or on behalf of, any person or entity on a Sanctions List; or (d) otherwise the target of any sanctions, suspensions, embargoes or debarment by the U.S. government or any other government or public international organization;
    6. shall secure all necessary export/sanctions licenses or authorizations to the extent applicable and necessary;
    7. shall implement an effective, risk-based compliance program and necessary internal controls (including, but not limited to, conducting sanctions screenings of your Relevant Parties and customers) to ensure compliance with Applicable ABAC Laws and this Anti-Corruption, Export and Sanctions Compliance Section;
    8. shall review and adhere to Commerce’s Company Associate Compliance Guide if provided by Commerce; and
    9. shall reasonably cooperate with Commerce to (a) ensure compliance with sanctions, embargoes, and other Applicable ABAC Laws and/or (b) review and remediate actual or potential violations of sanctions or other Applicable ABAC Laws, including, but not limited to, suspending or terminating the supply of products or services to customers or other persons that appear on a Sanctions List or are otherwise the target of sanctions and other similar restrictions. A violation of the foregoing representations, warranties, or covenants will constitute a material breach of this Agreement, and, in the event of such a violation, Commerce may, at its sole option, terminate this Agreement for cause and without further liability or obligation on the part of Commerce. Any such breach will entitle Commerce to seek to be indemnified by you and/or obtain injunctive and other emergency or equitable relief, in addition to any other remedies which may be available under applicable laws.
15. Modifications. Commerce reserves the right, in its discretion, to change, modify, add to, or remove portions of the Agreement (collectively, “Changes”), at any time. Commerce will notify you of Changes by sending an email to the address identified in your Account and by posting a revised version of the Agreement incorporating the Changes to its Website. Your continued use of the Website or Services following notice of the Changes (or posting of the Agreement incorporating the Changes in the event your email address is no longer valid, is blocked, or is otherwise not able to receive the notice) will mean that you accept and agree to the Changes. Such Changes will apply prospectively beginning on the date the Changes are posted to the Website.
16. Miscellaneous.
    1. Entire Agreement. This Agreement is the entire agreement between Commerce and Customer regarding Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as expressly provided in Section ‘Modifications’, no waiver, changes, or modifications to this Agreement will be effective unless included in a written amendment executed by authorized representatives of both parties. All Exhibits referenced in this Agreement are incorporated into this Agreement by reference. Each party represents and warrants to the other party that it is NOT relying on any promises, guarantees and/or assurances of the other party that are NOT otherwise expressly contained in this Agreement. In the case of a conflict between this Agreement and any Incorporated Terms, Program Documents, or Order Forms; the order of precedence in descending order is as follows: (i) the Order Form; (ii) this Master Services Agreement; and (iii) any Program Documents, exhibits, and schedules.
    2. Governing Law; Jurisdiction. The law that will govern the validity and construction of this Agreement and apply in any dispute or lawsuit arising out of or relating to this Agreement is as set forth in table in the Contracting Entity Section above. YOU HEREBY CONSENT TO, AND WAIVE ALL DEFENSES OF LACK OF PERSONAL JURISDICTION AND FORUM NON CONVENIENS WITH RESPECT TO, THE JURISDICTION AND VENUE OF THE FEDERAL AND STATE COURTS LOCATED IN TRAVIS COUNTY, TEXAS (USA). The prevailing party in any dispute arising out of this Agreement shall be entitled to recover its reasonable attorney’s fees and costs, in addition to any other relief granted. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement and is hereby expressly excluded.
    3. Language. This Agreement has been prepared in the English language. In the event of any conflict or inconsistency between the English language version of this Agreement and any translation thereof, the English language version shall prevail.
    4. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable.
    5. Waiver. No waiver of any provision of this Agreement, nor consent by Commerce to the breach of or departure from any provision of this Agreement, will in any event be binding on or effective against Commerce unless it be in writing and signed by a duly authorized representative of Commerce, and then such waiver will be effective only in the specific instance and for the specific purpose for which given.
    6. Notices.
       1. You consent to receive electronically any communications from Commerce. We may communicate with you through the email address specified in your account or by posting notices on the Website. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any requirement that such communications be in writing. All notices from us intended for receipt by you shall be deemed delivered when sent to the email address you provide to us. All notices from both parties shall be made in the English language.
       2. Notices to Commerce must be sent to: trustandsafety@commerce.com.
    7. Section Headings. The section headings and titles in this Agreement are for convenience only and have no legal or contractual effect. The Agreement will be interpreted without application of any strict construction in favor of or against you or Commerce.
    8. Independent Contractors. No agency, partnership, joint venture or employment relationship is created by this Agreement or your use of the Services, and you do not have any authority of any kind to bind Commerce in any respect whatsoever.
    9. Marks. Commerce shall have the non-exclusive right and license to use the names, trademarks, service marks and logos associated with your store(s) to promote the Services.
    10. Force Majeure. Commerce will have no liability to you, your users, or any third party for any failure by Commerce to perform its obligations under this Agreement in the event that such non-performance arises as a result of the occurrence of an event beyond the reasonable control of Commerce, including, without limitation, acts of a governmental body in its sovereign capacity, an act of war or terrorism, natural disaster, failure of electricity supply or telecommunication failure, riot, civil disorder, or civil commotion, pandemics, epidemics, quarantine restrictions or other force majeure event.
    11. Third-Party Service Integration. Certain Third-Party Products may be integrated with the Services. Commerce may, in its discretion and without liability to you, decide to no longer support such integration and migrate your Services subscription to a different integration. Any use or other engagement of Third- Party Services offered through the Commerce mobile based application (“Mobile Application”) or Service is entirely at your own risk and discretion. It is your responsibility to understand the terms and conditions and/ or privacy policy of any Third- Party Services you are accessing, linking to, or otherwise engaging prior to any engagement with that Third-Party Service Provider. If you install or enable a Third- Party Services for use with the Commerce’s Service, you grant us permission to allow the applicable Third-Party Service Provider to access your data and content and other materials and to take any other actions required for the interoperation of the Third- Party Services with Commerce’s Services. Any exchange of data, content or materials, and any other interaction between you and the Third- Party Service Provider is solely between you and the Third-Party Service Provider. Commerce is not responsible for any disclosure, modification, deletion, or other processing of data, content, or other materials, or for any corresponding losses or damages you or any other party may suffer as a result of your interactions or engagement with Third-Party Services or a Third-Party Service Provider. In some instances, Commerce may receive revenue from third-parties that Commerce recommends or that you otherwise engage with through the use of our services. We provide no warranties and make no representations with respect to any third-party. The availability of Third-Party Services on Commerce’s mobile application and Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Commerce. Commerce does not guarantee the availability of Third-Party Services and you acknowledge that Commerce may disable access to any Third-Party Services at any time and for any reason in its sole discretion without notice to you. Commerce is not responsible or liable to anyone for discontinuation of the Third-Party Services.
    12. Hosting Services. Commerce has entered into arrangements with one or more third parties for hosting services that are essential to the Services, incorporated within the Services and without which the Services could not be provided to you.