Last updated January 25, 2023
THIS MERCHANT SERVICES AGREEMENT (THE “AGREEMENT”) FORMS A BINDING CONTRACT BETWEEN YOU (THE ENTITY OR INDIVIDUAL AGREEING TO THIS AGREEMENT, “YOU”) AND INVISIBLE COMMERCE LIMITED d/b/a SHIPPED (”SHIPPED”) AND SHIPPED INSURANCE SERVICES LLC, EFFECTIVE AS OF THE DATE OF EXECUTION OF THIS AGREEMENT (THE “EFFECTIVE DATE”). YOU WILL BE REQUIRED TO INDICATE YOUR AGREEMENT TO THIS AGREEMENT IN ORDER TO ACCESS SHIPPED. BY CLICKING ON AN “I AGREE” BUTTON OR OTHER BUTTON OR MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT TO THE TERMS OF AN ELECTRONIC COPY OF THIS AGREEMENT, OR DOWNLOADING OR INSTALLING ANY SHIPPED SOFTWARE, YOU ARE AGREEING: (1) THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT; (2) TO BE LEGALLY RESPONSIBLE FOR COMPLIANCE WITH THE TERMS OF THIS AGREEMENT; (3) THAT YOU ARE DULY AUTHORIZED TO BIND YOUR COMPANY LEGALLY TO THIS AGREEMENT; AND (4) THAT THIS AGREEMENT (INCLUDING ANY ASSOCIATED ORDER FORM(S)) IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, AND SUPERSEDES ALL PROPOSALS OR PRIOR OR CONTEMPORANEOUS AGREEMENTS, ORAL OR WRITTEN, EVEN IF SIGNED BY THE PARTIES AFTER THE DATE HEREOF. YOU AGREE THAT THIS AGREEMENT IS EQUIVALENT TO ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.
The parties hereto (each, a “Party” and collectively, the “Parties”) agree that upon the execution and delivery of an Order Form by a Merchant and Company, (i) such Merchant will become a party to this Agreement and all references to “Merchant” in this Agreement will be deemed to reference such Merchant as the context requires, and (ii) such Company counterpart will become a party to this Agreement and all references to “Company” in this Agreement will be deemed to reference such Company counterpart as the context requires, in each case solely with respect to its participation in offering the Services (as defined in Section 1.1 below) and its actions and omissions on its own behalf conducted under this Agreement. Capitalized terms not otherwise defined herein have the meanings ascribed to them in the Order Form or the Company Service Terms (as defined in Section 1.3 below), as applicable.
The terms and conditions set forth in any attachments or schedules referenced herein (including any terms, conditions, and materials in the Company Service Terms) are hereby incorporated by reference into this Agreement. This Agreement will apply to and govern Company’s provision of and Merchant’s access to and use of any Services agreed upon by the Parties, any Order Form entered into by the Parties (each, an “Order Form”), and any other writing agreed upon by the Parties.
1.1 General. Company offers certain products and services (collectively, “Company Products”) through Company’s proprietary platform and related application programming interfaces (“APIs”), and other technology and access solutions (collectively, the “Services”). Merchant desires to use certain Services to market and offer Company Products to its customers through websites owned and/or controlled by Merchant and identified in an Order Form (each, a “Merchant Site”). Company authorizes Merchant to use the Services specified in an Order Form or as otherwise agreed by the Parties in accordance with the Agreement. A “Customer” is any person who applies to use the Services or who uses the Services in accordance with this Agreement.
1.2 Authorized Channels. Merchant agrees that the rights and obligations set forth in the Agreement will apply to all Merchant Sites listed in an Order Form, any additional URLs, and other channels (each, a “Channel”), in which the Parties agree to market and offer the Services. Merchant may make the Services available on a new URL or through a new Channel only with prior written approval from Company. Any marketing and offering of the Services through an approved Channel will be conducted in accordance with applicable Company Service Terms. Merchant may not change the ownership or control of any Merchant Site and subsequently offer Company’s Services without Company’s prior written approval.
1.3 Company Policies and Company Service Terms. Merchant will maintain and comply with Merchant’s internal policies, including policies for shipping and fulfillment of customer orders, privacy of customer information, customer refunds and returns, and customer dispute resolution, that meet or exceed prevailing industry standards for merchants similar to Merchant (collectively, “Merchant Policies”), provided that this Agreement will control in the event of a conflict, ambiguity, or inconsistency between the Agreement and a Merchant Policy. Company has implemented and maintains certain policies, standards, processes, and terms and conditions that apply to the Services (collectively, the “Company Service Terms”), which are located at https://www.invisiblecommerce.com/terms and may be modified by Company in accordance with Section 12.11. Merchant will comply with the applicable Company Service Terms when offering and using the Services.
1.4 Marketing Commissions. Company reserves the right to suspend the marketing commission if there are shipment issues where the damage is deemed preventable had the shipment included the appropriate use of packing materials such as, but not limited to, packaging tape, bubble wrap, packing peanuts, crumpled paper, styrofoam, or mail rollers.
Prior to suspending the marketing commission, Company will notify Merchant and provide 30 days for Merchant to make necessary improvements and provide supporting evidence of the improvements made. Supporting evidence may include photo(s) and video(s) detailing the packaging improvements. If no improvements are made, the marketing commission may be suspended.
If the marketing commission has been suspended, the merchant may request the marketing commission to be reinstated by writing to Company merchant support (email@example.com) along with photo(s) and/or demonstrating that the necessary package improvements have been made. Company reserves the right to request additional documents to confirm that improved packaging is deemed sufficient.
2.1 Intellectual Property. As between the Parties, Company retains exclusive ownership of all right, title, and interest in and to all IP (as defined below) relating to or embodied in the Services, including the APIs, and any Confidential Information provided to Merchant by Company (collectively, the “Company IP”). Neither Party will, by virtue of the Agreement, gain any rights of ownership of IP owned (prior to, on or after the Effective Date) by the other Party. “IP” means all worldwide rights in and to intellectual, industrial, and other property, whether exclusive or non-exclusive, including rights to inventions, trademarks, trade names, trade dress, service marks, logos, brand names, other indicia of origin, trade secrets, know-how, technology, research tools, data, software, improvements, processes, designs, techniques, works of authorship and rights of attribution, whether or not protected by patents or copyrights, the Marks (as defined in Section 2.2(b), patent applications, patents, copyrights, moral rights, all other rights pertaining to intellectual property, and all goodwill associated therewith. Merchant agrees that its submission of any feedback, comments, or suggestions to Company related to Company IP (“Feedback”) is voluntary. Notwithstanding any other provision of the Agreement, (a) Company may use Feedback and incorporate it into Company’s products, technologies, and services without any obligation to Merchant or restriction as to Company’s use of such Feedback, (b) Merchant hereby waives all rights it or its representatives have or may have, including all IP rights, in and to the Feedback, and will cause its representatives to waive all moral or similar rights that its representatives have to Company, and (c) Merchant hereby assigns to Company all of Merchant’s rights in and to Feedback and will cause its representatives to assign all of such representatives’ rights to Company. In the event Merchant is unable to waive or assign its or its representatives rights in and to Feedback pursuant to Applicable Law, then Merchant hereby grants to Company an irrevocable, perpetual, exclusive, royalty-free, fully paid-up, worldwide, license, to use, reproduce, distribute, perform, display and create derivative works of, such Feedback, without the need for a separate writing. Merchant is not entitled to any compensation or reimbursement of any kind under any circumstances for any Feedback. If Merchant develops any modifications, corrections, enhancements, derivatives, or extensions of or relating to Company IP, all rights, title, and interest in and to all IP therein will be owned exclusively by Company. Should Company IP become, or in Company’s opinion likely become, the subject of an IP infringement claim by a third party, Company, at its option, may: (i) procure for Merchant the right to continue using the applicable Company IP, (ii) modify the applicable Company IP to make it non-infringing provided the same functionality is maintained, or (iii) terminate this Agreement or the applicable Order Form as to the potentially infringing Services.
2.2 License Grants
(a) Licenses. The applicable Company policies and Company Service Terms will set forth all terms and conditions governing any licenses related to the Services.
(b) Trademark License. Upon the terms and subject to the conditions of the Agreement, each Party (the “Licensor”) hereby grants to the other Party (the “Licensee”) a limited, revocable, non-exclusive, non-transferable license and right to use, reproduce, display, distribute, and transmit the Licensor’s name, logo, and any other trademarks, trade names, service marks, photographs, graphics, brand imagery, text, and other content, in each case provided by the Licensor, in any and all media formats, whether registered or unregistered (with respect to each Licensor, the “Marks”), in connection with the use and marketing of the Services during the Term (as defined in the applicable Order Form). Licensee’s use of the Licensor’s Marks may be subject to usage guidelines and quality control standards that Licensor may provide to Licensee from time to time. Upon Licensor’s request, Licensee will provide to Licensor representative samples of Licensee’s use of the Marks, and Licensor reserves the right to reject any such use in the event that Licensor reasonably believes a deficiency exists in the manner of use of the Marks by Licensee. All goodwill arising out of the use of the Licensor’s Marks will inure to the benefit of the Licensor. Use of a Licensor’s Marks does not create in the Licensee any ownership interest in Licensor’s Marks. Neither Party will register or apply for registration of the other Party’s Marks (or any confusingly similar trademarks, trade names, service marks, logos, or names). Each Party agrees to reasonably cooperate with the other Party with respect to any infringement action regarding such rights.
2.3 Restrictions on Use of the Services. Merchant will not: (a) offer for sale or lease, or sell, resell, or lease, or in any way transfer the Services; (b) attempt to create a substitute or similar service through use of, or access to, the Services; or (c) access or use the Services in a way intended to avoid incurring fees, misrepresent usage or performance data, misrepresent transaction amounts or item data, misrepresent user information, or knowingly permit Customers and third parties to engage in actions that are prohibited under the Agreement. In addition, Merchant will not, nor will Merchant allow any third party to (i) modify, translate, reverse engineer, decompile, disassemble, otherwise attempt to derive source code from, or create derivative works based on, Company IP, (ii) make unauthorized copies of Company IP, (iii) modify or remove any proprietary notices, disclosures, disclaimers, or Company Marks from the Services or Company IP, or (iv) use the Services or Company IP in any manner or for any purpose other than for which the Services or Company IP have been provided or incorporated.
2.4 Marketing Materials. Company may provide certain pre-approved marketing language and disclosures (“Company-Approved Marketing Materials”) to Merchant to offer and market the Services. Merchant may not use any materials, other than Company-Approved Marketing Materials, to offer and market the Services, subject to brand and marketing guidelines in the Company Service Terms. In no event will Merchant modify Company-Approved Marketing Materials or use Company Marks in a way not otherwise provided for in the Company-Approved Marketing Materials without Company’s prior approval. Merchant further agrees to (a) comply with Company Service Terms in displaying Company Marks on Merchant Sites and in Merchant marketing materials, and (b) include Company Marks wherever Merchant markets, offers, or promotes the Services. Merchant permits, and agrees to obtain any third-party licenses or consents required to enable, Company to use Merchant Marks in marketing or promotional materials in connection with the Services, at no additional cost to Company. Company may withdraw its approval of any Company-Approved Marketing Materials upon notice to Merchant. If Merchant breaches its obligations under this Section 2.4, Merchant will immediately cure such breach, including by removing any non-compliant marketing materials from all Channels.
3.1 Payment and Reimbursements. In consideration for Company providing the Services, Merchant will pay the fees listed for the Services at the time of the transaction. Company will charge Merchant for any fees owed for providing the Services pursuant to this Agreement and any Order Form(s).
If Company cannot charge Merchant’s selected payment method for any reason (such as expiration or insufficient funds), Merchant remains responsible for any uncollected amounts and Company will attempt to charge the payment method again as Merchant may update information regarding Merchant’s selected payment method. Company reserves the right to change the listed price of the Services for Customers from time to time.
Company will reimburse Merchant for any unexpected damage, loss or theft tracked in Shipped Track and timely reported in Shipped Shield in accordance with the terms of the Merchant Assurance Guarantee (https://www.shippedsuite.com/assurance). Reimbursements will be netted from the payment transfer.
3.2 Shipping and Fulfillment. Merchant will maintain and comply with shipping and service fulfillment practices that meet or exceed (a) prevailing industry standards maintained and complied with by merchants similar to Merchant, and (b) any requirements set forth in Merchant’s agreements with applicable Customers.
3.3 Fraudulent Transactions. The Parties will work together to prevent fraudulent Customer transactions and minimize the risk of loss associated with such fraudulent transactions and will comply with applicable processes and procedures set forth in the Company Service Terms.
4.1 Prohibited Products. Merchant agrees that the categories of business and business practices described in the Prohibited Products section of Exhibit A hereto (each, a “Prohibited Product”) are ineligible for the Services, and Merchant will not allow the Services to be used in connection with any Prohibited Product.
5.1 Confidential Information. In connection with the Agreement, including the negotiation of the Agreement, a Party (“Recipient”) may receive or have access to confidential or proprietary information of the other Party or its affiliates (“Discloser”), whether received or disclosed by such Parties or their respective personnel, representatives, or other agents (collectively “Representatives”). As used in the Agreement, “Confidential Information” means the information exchanged by the Parties prior to or during negotiation of the Agreement that should be reasonably understood to be confidential or proprietary in nature, regardless of whether such information was provided subject to a non-disclosure agreement between the Parties, the terms and conditions of the Agreement, any proprietary information, technical data, demographic information, trade secrets, or know-how, including research, product plans, products, services, customers, customer lists, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed by either Party either directly or indirectly in any form but excluding information that: (a) was lawfully, and not otherwise as a result of any violation of confidentiality obligations, in Recipient’s possession before receiving it from Discloser; (b) is rightfully received by Recipient from a third party without restriction, and, to Recipient’s knowledge, without a breach of a confidentiality obligation imposed on such third party; (c) is or becomes generally available to the public other than through a breach of the Agreement; or (d) was or is independently developed by Recipient without use of or reference to any Confidential Information of Discloser. For avoidance of doubt, Company’s proprietary financial platform, including any solution designs, specifications, enhancements, or improvements made thereto, is Company’s Confidential Information.
5.2 Non-Disclosure of Confidential Information. Recipient will: (a) keep the Confidential Information of Discloser confidential and not use or copy such Confidential Information other than as expressly authorized by Discloser and as permitted under the Agreement; (b) protect the Confidential Information of Discloser from unauthorized use or disclosure by using at least the same degree of care as Recipient employs to avoid such unauthorized use or disclosure of its own Confidential Information, but in no event any less than reasonable care; and (c) limit access to Confidential Information to those of its Representatives who need such access for purposes consistent with the Agreement and will be liable for any breach of this Section 5.2 by such Representatives. It is understood that Discloser’s Confidential Information will remain the sole property of Discloser. In the event that Recipient or any of its Representatives are legally compelled by Applicable Law (as defined in Section 12.2), subpoena, or similar court process to disclose any Confidential Information of Discloser, Recipient will, to the extent legally permissible, provide Discloser with notice of such circumstances and will limit such disclosure to only what legal counsel for Recipient advises is specifically required by Applicable Law, subpoena, or similar court process. This provision will supersede any previous agreement, whether written or oral, between the Parties hereto regarding Confidential Information.
5.3 Privacy; Data Security. The Parties agree to protect, secure, and maintain information processed and handled under this Agreement in compliance with Applicable Law and the terms and conditions set forth in applicable Company policies and the Company Service Terms.
(a) Each Party represents and warrants that: (i) it is duly formed, validly existing, and in good standing under the laws of its state of incorporation or formation; (ii) it has the right, power, and authority to enter into the Agreement; (iii) the Agreement has been duly and validly executed and delivered and constitutes legal, valid, and binding obligations of each Party; (iv) it is in compliance with all Applicable Law in connection with carrying out its obligations under the Agreement; (v) there is no pending or, to such Party’s knowledge, threatened litigation, arbitration matter, or other dispute to which such Party or any of its affiliates is a party that would reasonably be expected to, individually or in the aggregate, have a material adverse effect on such Party’s ability to fulfill its obligations under the Agreement; and (vi) the execution and delivery of the Agreement will not conflict with, or result in a violation or breach of, any of the terms, conditions, or provisions of such Party’s organizational documents or any legal restriction or any agreement or instrument to which such Party is now a party or by which it is bound, or require the consent of any person or entity not subject to the Agreement. Merchant represents, warrants, and covenants that it will convey good and valid title to the Merchant products delivered or otherwise made available to a Customer as a result of any sale of a Merchant product or service to a Customer using the Services that is captured by Merchant (each, a “Successful Transaction”), free and clear of all encumbrances, debts, mortgages, attachments, pledges, charges, claims, and liens of any kind.
(b) EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT AND EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, COMPANY MAKES NO OTHER WARRANTY OF ANY KIND REGARDING THE SERVICES, AND EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.
7.1 Merchant Indemnification. Merchant will defend, indemnify, and hold harmless Company, its affiliates, and their respective officers, directors, agents, employees, successors, and assigns (individually and collectively, a “Company Party”) from and against all third-party claims, and any resulting penalties, damages, losses, or expenses (including reasonable attorneys’ fees) (collectively, “Losses”) suffered, incurred, or sustained by any Company Party to the extent resulting from or arising out of: (a) Merchant’s violation of Applicable Law; (b) personal injury (including death) or property damage resulting from Merchant’s acts or omissions; (c) Merchant’s breach of its obligations under the Agreement with respect to the offering, marketing, sale, or distribution of goods or services that are Prohibited Products; (d) the goods or services provided by Merchant, including any claims for false advertising, unfair business practices, discrimination, or product defects; (e) any applicable federal, state or local sales or use taxes (individually, a “Tax” or collectively, “Taxes”) and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on Merchant with respect to or in connection with Merchant’s use of the Services and any Taxes in connection with Merchant’s business; (f) Merchant’s violation, misappropriation, or infringement of the IP of a third party; or (g) fraud, gross negligence, or willful misconduct of Merchant.
7.2 Company Indemnification. Company will defend, indemnify, and hold harmless Merchant, its affiliates, and their respective officers, directors, agents, employees, successors, and assigns (individually and collectively, a “Merchant Party”) from and against all third-party claims, and any resulting Losses suffered, incurred, or sustained by any Merchant Party to the extent resulting from or arising out of: (a) Company’s violation of Applicable Law; (b) personal injury (including death) or property damage resulting from Company’s acts or omissions; (c) any Taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) in connection with Company’s business; (d) Company’s violation, misappropriation, or infringement of the IP of a third party; (e) fraud, gross negligence, or willful misconduct of Company; or (h) the acts or omissions of Company Personnel.
7.3 Indemnification Procedure. A right to indemnification under the Agreement is conditioned upon the following: (a) notice by the indemnified Party (the “Indemnified Party”) to the other Party (the “Indemnifying Party”) after the Indemnified Party’s receipt of the assertion or the commencement of any third-party action, proceeding, or other claim with respect of which the Indemnified Party will seek indemnification under the Agreement; (b) control of the investigation, preparation, defense, and settlement thereof by the Indemnifying Party (provided, however, that the Indemnifying Party will not, without the prior consent of the Indemnified Party, settle, compromise, or consent to the entry of any judgment with respect to the indemnified claim); and (c) cooperation by the Indemnified Party, at the Indemnifying Party’s request, in the Indemnifying Party’s defense of the indemnified claim. The Indemnified Party will have the right to participate in the defense of the indemnified claim at the Indemnified Party’s expense (notwithstanding any indemnification obligations under the Agreement).
Except for claims of gross negligence or intentional wrongdoing, (a) in no event shall either party be liable to the other for special, consequential, punitive, or exemplary damages under this Agreement; and (b) each party’s liability under this Agreement shall be limited to the fees paid for the past 12 months under the Agreement.
9.1 Informal Dispute Resolution. Prior to the initiation of arbitration, the Parties will first attempt to resolve their Dispute informally as set forth in this Section 9.1 (the “Informal Dispute Resolution Process”). Either Party may initiate the Informal Dispute Resolution Process by giving notice of a Dispute to the other Party (the “Notice of Dispute”), which will include a reasonably detailed statement of the Dispute. All negotiations and proceedings pursuant to this Section 9.1 will be confidential and will be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.
9.2 Governing Law; Formal Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington, including the Uniform Commercial Code currently in effect as of entering into this Agreement, without reference to conflicts of laws principles or the UN Convention on International Sale of Goods. Any disputes or claims arising under or related to this Agreement shall be settled by binding arbitration under JAMS arbitration rules in the State of Washington, United States, before a single arbitrator and will be conducted on a confidential basis. An award of arbitration may be confirmed in a court of competent jurisdiction.
10.1 Force Majeure Event. Except for each Party’s payment obligations, neither Party will be liable for any failure or delay in performance of its obligations under the Agreement if and to the extent such failure or delay is caused, in whole or in part, directly or indirectly, by fire, storm, earthquake, flood or other weather, terrorism, epidemic, pandemic, unavailability of necessary utilities or raw materials, unavailability of components, war, riot, elements of nature or acts of God, regulation, ordinance, instructions of government or other public authorities, any other event that is traditionally recognized by Washington courts as an event of force majeure, or any other cause beyond the reasonable control of such Party, provided that the non-performing Party is without fault in causing such failure or delay, and such failure or delay could not have been prevented by reasonable precautions and could not reasonably be circumvented by the non-performing Party through the use of alternate sources, workaround plans, or other means.
10.2 Obligations. In the event of such a force majeure event, the non-performing Party will give prompt notice to the Party to whom performance is due that describes at a reasonable level of detail the circumstances causing such failure or delay and the expected period of time the non-performance will continue. The non-performing Party will be excused under this Section 10 so long as such Party continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay; however, notwithstanding the foregoing, such delay will not be excused under this Section 10 for more than 90 days.
11.1 Term. The Agreement will become effective on the Effective Date and will continue in full force and effect until the expiration or termination of the last Order Form that is subject to this Agreement.
11.2 Termination. Company may terminate the Agreement, including any Order Form, without cause at any time by giving Merchant notice thereof. Either Party may terminate the Agreement or any Order Form for a material breach that is not cured within 30 days after notice by the other Party or immediately upon notice of termination in the event of a material breach that by its nature cannot be remedied within 30 days. Either Party may terminate the Agreement, including any Order Form, immediately if the other Party (a) terminates its business operations; (b) becomes insolvent; (c) suffers the appointment of a receiver or makes an assignment for the benefit of a creditor; or (d) enters into any voluntary or involuntary bankruptcy proceedings. In addition, Company may terminate the Agreement immediately if (i) Company discovers that Merchant misrepresented, omitted, or falsified any information or documentation provided to Company; (ii) in Company’s reasonable discretion, Merchant engages in conduct that could damage or disparage the reputation or goodwill of Company, its personnel, or the Services or otherwise harms or causes a loss of business or revenue to Company; (iii) Merchant violates any Applicable Law; or (iv) as otherwise provided in the Agreement. Any termination by Company in accordance with the Agreement will be without cost or penalty.
11.3 Effect of Termination. If this Agreement is terminated for any reason, any Order Form then in effect will automatically be terminated as of the date this Agreement is terminated, unless otherwise agreed upon by the Parties.
11.4 Obligations upon Termination. Termination will not release either Party from financial obligations owed to the other Party for Services delivered or payments owed for Services delivered prior to or after termination of this Agreement (or applicable Order Form). The Parties will cooperate to complete all outstanding obligations to Customers related to the Services. Upon termination of the Agreement:
(a) All authorizations and licenses granted by either Party will immediately terminate, and all rights will revert to the owner, provided that Company may continue to use Merchant Marks to the extent reasonably necessary to complete all outstanding obligations to Customers related to the Services. Merchant will immediately cease to represent itself as a Company partner and cease its use of any of the Company Marks.
(b) Upon request, and except as required by Applicable Law, Merchant will immediately destroy or return to Company, and upon request, certify such destruction of, all of Company’s materials, documentation, data, and Confidential Information, including all related materials that were derived from such materials, documentation, data, and Confidential Information.
12.1 Notices, Acceptances and Approvals. All notices, acceptances, approvals, and other communications provided pursuant to the Agreement will be in writing, which may be provided electronically, and deemed duly given when: (a) sent via electronic mail by Merchant to the electronic mail address set forth in any applicable Company policies and the Company Service Terms, (b) sent via electronic mail by Company to the electronic mail address submitted by Merchant on the most current Order Form, or (c) captured in Merchant’s online merchant interface (the “Merchant Portal”) to Merchant’s authorized users or through other electronic means (e.g., “click-to-accept” radio buttons). Notices will be deemed received one (1) business day after being sent or captured in accordance with the foregoing.
12.2 Applicable Law. Merchant will comply with, and will offer the Services in a manner that complies with, all applicable requests by governmental authority, court orders, laws, regulations, codes, rules and guidelines imposed by law, any competent government authority, governing body or regulator in each country and jurisdiction (collectively, “Applicable Law”) applicable to Merchant’s business, the marketing and offering of the Services, and Merchant’s use of Company IP. Company will comply with Applicable Law applicable to its provision of the Services under this Agreement.
12.3 Other Remedies
(a) In addition to and without limiting any other remedies that Company may have under the Agreement, Company may suspend the Services, immediately or from such other date as determined by Company, upon notice to Merchant, in the event that: (i) Merchant breaches, or Company reasonably suspects that Merchant has breached, any provision of the Agreement; (ii) Company reasonably determines that such suspension is necessary to comply with Applicable Law; (iii) there are any outstanding fees or other amounts due to Company that Company is unable to collect or Merchant otherwise fails to pay in accordance with this Agreement, provided that Company makes a good faith effort to inquire with Merchant as to status and attempts to seek payment for at least 10 days prior to any suspension; (iv) Company has a good faith, reasonable suspicion of fraudulent transactions or other suspicious activity related to the Services; or (v) Company, its affiliate or its bank partner is not authorized by Merchant’s bank to debit the applicable Merchant bank account.
(b) Company may continue any suspension until: (i) Merchant has rectified Merchant’s breach of the Agreement or has proven that Merchant did not breach the Agreement, in either case, to Company’s reasonable, good faith satisfaction; (ii) Company determines, in its reasonable discretion, that Merchant is no longer involved in excessive Customer Disputes and that resuming the Services will not result in excessive Customer Disputes; (iii) Company, in its sole discretion, determines that suspension is no longer necessary to comply with Applicable Law; (iv) Merchant has paid all Past Due Amounts; and (v) Company no longer has a basis for reasonably suspecting fraudulent transactions or other suspicious activity related to the Services. Company will not be liable for any damages arising in connection with its suspension of the Services.
12.4 Independent Contractors. The Parties are independent contractors. Nothing in the Agreement will be construed to create a joint venture, partnership, franchise, or agency relationship between the Parties. Neither Party has the authority, without the other Party’s approval, to bind or commit the other Party in any capacity.
12.5 Assignment. Neither Party may assign all or part of the Agreement without the prior consent of the other Party; provided, however, that such consent will not be required in the case of an assignment in connection with the sale or transfer of all or substantially all the Party’s assets; provided, further, that Company may assign the Agreement (whether by operation of law, merger or other combination) to an affiliate or subsidiary. Following any assignment permitted hereunder, the assignee will have the same rights and obligations as the assignor and will agree in writing to be bound by the terms and conditions of the Agreement. Merchant must promptly notify Company if Merchant undergoes a change of ownership or control.
12.6 No Third-Party Beneficiaries. Except as expressly set forth in this Section 12.6 or the applicable Company Service Terms with respect to any affiliates or subsidiaries of Company, the Agreement is for the benefit of, and may be enforced only by, Merchant and Company and their respective successors and permitted transferees and assignees, and is not for the benefit of, and may not be enforced by, any third party.
12.7 Further Assurances. Each Party will, upon the request of the other Party, promptly execute and deliver such documents and perform such acts as may be necessary to give full effect to the terms of the Agreement.
12.8 Interpretation. For purposes of the Agreement, (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to the Agreement as a whole. Where agreement, approval, authorization, acceptance, consent, or similar action by either Party is required under the Agreement, such action will be performed in accordance with Section 12.1 and, except where expressly provided as being in the discretion of a Party, will not be unreasonably delayed or withheld. The headings in the Agreement are for reference only and will not affect the interpretation of the Agreement. The Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
12.9 Waiver. The failure of any Party to enforce any of the terms and conditions of the Agreement will not constitute a waiver of that Party’s right thereafter to enforce each and every term and condition of the Agreement. Any single or partial exercise of any right hereunder will not preclude further exercise of the same right or the exercise of any other right hereunder by either Party. The waiver by any Party of any default or breach of the Agreement will not constitute a waiver of any other default or breach.
12.10 Entire Agreement. The Agreement (and any schedules attached hereto), including the Company Service Terms and Order Forms, constitute the entire understanding and contract between the Parties and supersedes all prior agreements (including any prior non-disclosure agreements entered into between the Parties), understandings, arrangements, commitments, or representations, oral or written, between the Parties with respect to the subject matter hereof. Unless otherwise stated in the Agreement with respect to a specific provision, any conflicts between provisions in the Agreement will be resolved in accordance with the following descending order of precedence: the provisions of the Company Service Terms, the provisions of any materials referenced in the Company Service Terms, the provisions of this Agreement, and the provisions of the applicable Order Form. The Agreement may be executed in two or more counterparts, each of which will be an original instrument, but all of which will constitute one and the same agreement.
12.11 Amendments and Severability. Company may amend the Agreement by giving Merchant no less than 30 days’ notice prior to the effective date of the proposed change. If Merchant does not want to continue receiving the Services as a result of any such amendment, Merchant may terminate the Agreement by providing Company 30 days’ notice of such termination. Merchant will be deemed to have accepted any amendment notified to Merchant by Company on the earlier of (a) Merchant’s acceptance of the amendment, or (b) the effective date of the amendment (provided the Agreement has not been terminated before the effective date of the amendment). If any provision of the Agreement is determined to be invalid, illegal, or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and to the extent permitted and possible, the invalid or unenforceable term will be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
12.12 Survival. Termination of the Agreement will not release either Party from any payment incurred prior to or after termination of the Agreement, including fees, refunds, or other amounts payable to Company with respect to Successful Transactions, or other obligations owed to the other or affect any rights or liabilities of either Party with respect to any breach of the Agreement. Sections 2, 5, 6, 7, 8, 9, 11 and 12, as well as any other provision of the Agreement that contemplates performance or compliance subsequent to termination or expiration of the Agreement and those sections that survive in accordance with the terms of any applicable Company policies or the Company Service Terms, will survive termination of the Agreement until all such obligations are completed; provided that with respect to Section 5, such survival will expire on the third (3rd) anniversary of the termination or expiration of the Agreement.