Master Services Agreement
Important! Please read carefully
This Master Services Agreement (this “MSA”) is binding and enforceable between you (“you” or “client”) and Reaction Commerce, Inc., a Delaware corporation having its principal place of business at 2110 Main St., Suite 304, Santa Monica, California, 90405. For itself (“Reaction Commerce,” “we,” “us”). “you” and “client” refers to the entity or organization using the products and/or services described in this msa (the “products and/ or services”). By signing an order form to use the products and/or to receive services, you are accepting and agreeing to be bound by this MSA. You shall inform all users of the products of the terms and conditions of this msa.
Reaction Commerce hereby agrees to make the Products and/or Services described in each Order Form hereto available to You, and You agree to purchase such Products and/or Services from Reaction Commerce, subject to the terms and conditions of the Agreement. This MSA was last updated on April 25, 2017. It is effective between You and Reaction Commerce as of the date of You accepting this MSA.
Conflicts with the Terms of Service. In the event of any conflict between this Master Services Agreement (“MSA”) and the Terms of Service (“TOS”) located at reactioncommerce.com/legal/terms, this MSA will control. For the avoidance of doubt, if there are terms and conditions in the TOS regarding subjects on which this MSA is silent, such silence will not constitute a conflict and the terms and conditions in the TOS will control.
“Acceptable Use Policy” shall mean the Acceptable Use Policy of the Company located at https://reactioncommerce.com/legal/aup
“Account” refers to your account with Reaction Commerce that contains the Service or Product that you subscribe to.
“Applicable Law” shall mean any international, federal, state, or local statute, regulation, or ordinance, expressly including without limitation those relating to individual privacy or the distribution of email and other one-to-one digital messages.
“Confidential Information” shall have the meaning set forth in the Confidentiality section within this document.
“Data” shall mean all data and other information uploaded by Client to the Product.
“Implementation Services” means Reaction Commerce’s then-current standard services for the implementation of the Subscription Services ordered by Customer.
“Malicious Code” shall mean viruses, worms, time bombs, Trojan horses and other harmful or destructive code, files, scripts, agents or programs.
“Product” shall mean all Reaction Commerce Subscription Services, Reaction Commerce PaaS, and other specific Software purchased by Client.
“Professional Services” shall mean the implementation, integration, consulting, and/or similar services described in a Statement of Work and provided by Reaction Commerce employees and subcontractors in support of Client’s use of the PaaS or a Product.
“Statement of Work” or “SOW” shall mean the document describing the scope and schedule of Services, if any, to be performed by Reaction Commerce for Client. An SOW may be a stand-alone document or incorporated into an Order Form and shall be governed by the terms of this MSA.
“Subscription Services” means, collectively, any Reaction Commerce subscription service(s) to which Customer is entitled to receive access pursuant to an Order Form. To avoid any doubt, Subscription Services are not Pass Through Services or Professional Services (as defined in Reaction Commerce’s Professional Services Terms and Conditions) and do not include Pass Through Services or Professional Services.
“Website” shall mean the Client’s site or sites on the Reaction Commerce PaaS and/or Subscription Services.
Licensed Application End User License Agreement. The Products made available through Reaction Commerce websites and/or Software are licensed, not sold, to you. Your license to each Product that you obtain is subject to your prior acceptance of this end user license agreement (“Standard EULA”), and you agree that the terms of this Standard EULA will apply to each Product that you license, unless that Product is covered by a valid end user license agreement between you and the application provider of that Product, in which case the terms of that separate end user license agreement will govern. Your license to any Product under this Standard EULA or separate end user license agreement is granted by Reaction Commerce, and your license to any Third-Party Product under this Standard EULA or separate end user license agreement is granted by the Application Provider of that Third-Party Product. Any Product that is subject to the license granted under this Standard EULA is referred to herein as the “Licensed Application”. The Application Provider or Reaction Commerce as applicable (“Licensor”) reserves all rights in and to the Licensed Application not expressly granted to you under this Standard EULA.
Scope of License. This license granted to you for the Licensed Application by Licensor is limited to a non-transferable license to use the Licensed Application on any device that you own or control and as permitted by the usage rules set forth in this Agreement (the “Usage Rules”). This license does not allow you to use the Licensed Application on any device that you do not own or control, and except as provided in the Usage Rules, you may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time., unless otherwise noted in the Order Form. You may not rent, lease, lend, sell, transfer redistribute, or sublicense the Licensed Application and, if you sell your device to a third party, you must remove the Licensed Application from your device before doing so. You may not copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed Application. Any attempt to do so is a violation of the rights of the Licensor and its licensors. If you breach this restriction, you may be subject to prosecution and damages. The terms of this license will govern any upgrades provided by Licensor that replace and/or supplement the original Licensed Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
Limited License to Use the Website/Service and Related Restrictions. Subject to and conditional upon your compliance with this Agreement and other agreements between you and Reaction Commerce (including any payment terms, MSA, and SOW), Reaction Commerce hereby grants to you a limited, reversible, non-exclusive, personal, non-sublicensable, non-transferable, non-assignable license to use certain software applications and platforms accessible through the Website/Services (collectively, Reaction Commerce Products). Reaction Commerce reserves all other rights in Reaction Commerce Products not expressly granted to you in this Agreement. You may not use Reaction Commerce Products in any manner that could: (i) damage, disable, overburden, or impair the software application or platform (or any server or networks connected thereto), or (ii) interfere with any third party’s use and/or enjoyment of the software application or platform (or any server or networks connected thereto).
Third Party Applications. If you use Reaction Commerce to run applications developed by a third party or that access data, content or resources provided by a third party, you agree that Reaction Commerce is not responsible for those applications, data, content, or resources, regardless of whether you acquired the third party applications directly from Reaction Commerce. You understand that all data, content or resources which you may access through such third party applications are the sole responsibility of the person from which they originated and that Reaction Commerce is not liable for any loss or damage that you may experience as a result of the use or access of any of those third party applications, data, content, or resources. You agree that you will not use any third-party materials in a manner that would infringe or violate the rights of any other party and that Reaction Commerce is not in any way responsible for any such use by you. You should be aware that the data, content, and resources presented to you through such a third party application may be protected by intellectual property rights which are owned by the providers (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on such data, content, or resources (either in whole or in part) unless you have been specifically given permission to do so by the relevant owners.
You acknowledge that your use of such third party applications, data, content, or resources may be subject to separate terms between you and the relevant third party. In that case, this Agreement does not affect your legal relationship with these third parties.
Your Use of External Services. You agree that the External Services contain proprietary content, information and material that is owned by Licensor and/or its agents or licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the External Services or in any manner that is inconsistent with the terms of this Standard EULA or that infringes any intellectual property rights of a third party or Reaction Commerce. No portion of the External Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the External Services, in any manner, and you shall not exploit the External Services in any unauthorized way whatsoever, including but not limited to, using the External Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the External Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that neither Licensor nor its agents is in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the External Services. Licensor makes no representation that such External Services and Materials are appropriate or available for use in any particular location. To the extent you choose to use or access such External Services and Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Licensor reserves the right to change, suspend, remove, or disable access to any External Services at any time without notice. In no event will Licensor be liable for the removal of or disabling of access to any such External Services. Licensor may also impose limits on the use of or access to certain External Services, in any case and without notice or liability.
Acceptable Use Policy
We may change our Acceptable Use Policy (the “AUP”) to add restrictions on your use of the Products provided that any new restrictions are reasonable and consistent with industry norms. Any changes to the AUP made during the term of your Agreement will become effective as to you upon the first to occur of: (i) renewal, (ii) your execution of a new/additional Order Form for that incorporates the revised AUP by reference, or (iii) thirty days following our notice to you describing the change. If a change to the AUP materially and adversely affects you, you may terminate the Agreement by giving us written notice of termination on such grounds no later than (30) thirty days following the date the change became effective as to you.
You agree that we may suspend access of Products and Professional Services without liability if: (i) we reasonably believe that the Products and Professional Services being used in violation of the Agreement; (ii) you do not cooperate with our reasonable investigation of any suspected violation of the Agreement; (iii) there is an attack on your Product which is accessed or manipulated by a third party without your consent, or there is another event for which we reasonably believe that the suspension of Product is necessary to protect the Reaction Commerce network or our other clients, or (iv) if required by law. We will give you advance notice of a suspension under this paragraph of at least twelve (12) hours unless we determine in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect Reaction Commerce or its other clients from imminent and significant operational or security risk.
Reaction Commerce Responsibilities
Reaction Commerce shall: (a) make the Products available to Client in a manner that is consistent with generally accepted industry standards; (b) use commercially reasonable efforts to ensure that the Product operates within prevailing industry standards to maintain the Subscription Services; (c) provide Client with maintenance, updates and technical support in accordance with the Order Form and (d) use commercially reasonable efforts to make the Product available twenty-four (24) hours a day, seven (7) days a week, except for: (i) planned downtime (for which Reaction Commerce shall make good faith efforts to give at least five (5) business days’ notice and which Reaction Commerce shall schedule to the extent reasonably practicable during the weekend hours from 10:00 p.m. ET Friday to 4:00 a.m. ET Saturday); or (ii) any unavailability caused by an act of god, terrorism, public enemy, labor disorders, fire, floods, strikes, lockouts, work stoppage, plant closing or shutdowns, accidents, civil commotion/ riots/ rebellions, quarantines, embargoes, closing of public highways, governmental interference or regulations and other contingencies, similar or dissimilar to the foregoing, beyond the reasonable control of Reaction Commerce.
Reaction Commerce Responsibility Limitations. Certain major functional updates or enhancements may, however, in Reaction Commerce’s discretion, be considered new Products that will be made available to Client at an additional charge.
If you create an account and/or ecommerce website with our Product, you are responsible for maintaining the security of your account and website, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with your website. You acknowledge and agree that you are solely responsible for maintaining the confidentiality of your account information (including without limitation, username and password). You must treat your username and password, and any other security details, as confidential, and not disclose it to any other person. You must also prevent unauthorized access to your account by (a) logging off from your account at the end of each session on our site and (b) notifying us immediately of any unauthorized use of your username and password or any other breach of security.
You must not describe or assign keywords to your website in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others. You must also not sell products on your website which are illegal or transmit any harmful code. Reaction Commerce may change, remove any description or keyword that it considers inappropriate or unlawful, or otherwise likely to cause Reaction Commerce liability. A breach or violation of any term in the TOS as determined in the sole discretion of Reaction Commerce may also result in an immediate termination of your services.
Account Ownership. The highest authority of a single specific Account is the Account Owner. The Account Owner is appointed on the Order Form during the registration process. We do not recommend that a temporary employee, contractor or other transient person or party be the owner of the Account, as that has the potential to result in a dispute over ownership between the parties if/when the parties sever ties. In those cases, we may not be able to assist the other party with accessing the Account without a judicial authority with competent standing so requiring. In situations in which account ownership is disputed, Reaction Commerce reserves the right, in its sole discretion, to suspend or close the Account in question. The Account Owner is responsible for and agrees to assume all liability for: (i) management of the Account, Service and all Content associated with the Account; (ii) any and all claims or complaints served upon Reaction Commerce in reference to the Content; (iii) any and all activity that occurs under or is otherwise associated with the Reaction Commerce Account; (iv) the actions of all Account Contacts; and (v) payment of all monies owing on the Account.
Account Ownership Transfers. Requests to transfer ownership of a Account must be initiated by the Account Owner. In the case of an account ownership transfer request initiated by someone other than the Account Owner, please contact hello@reactioncommerce for more information.
Payment, Renewal and Terms
Prices. Prices for Products offered may change at any time, and we do not provide price protection or refunds in the event of a price reduction or promotional offering. If a Product becomes unavailable following a transaction but prior to provisioning and access, your sole remedy is a refund. If technical problems prevent or unreasonably delay delivery of your Product, your exclusive and sole remedy is either replacement or refund of the price paid, as determined by Reaction Commerce.
Subscription Terms. These Terms are effective on the date that you sign the Order Form (the “Effective Date”). The “Initial Subscription Term” will be for the period specified in the Order Form, commencing on the Effective Date. At the end of the Initial Subscription Term, your subscription automatically renews for successive renewal subscription terms (each a “Renewal Subscription Term”, and together with the Initial Subscription term, the “Subscription Term”) equal in duration to the Initial Subscription Term at our then current subscription fees unless you elect not to renew your subscription as further described below under “Termination”.
Fees and Payments. By selecting a Product you agree to pay Reaction Commerce the term subscription fees or the one-time fee indicated for that service as specified in all Order Forms and/or SOW’s executed under this MSA. Payments will be charged on a pre-pay basis on the day you sign up for a Product and will cover the use for a subscription period as indicated. Product fees are not refundable. Prices for Products may change at any time, Your total price will include the price of the Product plus any applicable sales tax; such sales tax is based on the bill-to address and the sales tax rate in effect at the beginning of your Subscription Term. We will charge tax only in states where digital goods or services are taxable. YOU ARE RESPONSIBLE FOR PROVIDING REACTION COMMERCE WITH A VALID PAYMENT METHOD FOR PAYMENT OF ALL FEES.
Overdue Payments. Your failure to timely pay any fees and expenses that are not the subject of a good faith dispute of which you notified Reaction Commerce in a detailed writing (“Undisputed Fees”) shall constitute a material breach of the Agreement. If any amounts for which you responsible are overdue, then Reaction Commerce may provide you with written notice of the same (a “Late Notice”). Any unpaid and uncontested balance due and owing will (i) incur a late fee of 1% per month and (ii) all fees and costs (including reasonable attorneys’ fees, court costs and collection agency fees) incurred in seeking collection of such overdue amounts (“Collection Costs”). In addition, if any invoice remains unpaid for more than 30 days, Reaction Commerce may suspend access to the Products and/or Professional Services after giving 10 days’ written notice to you, until Reaction Commerce has been paid all amounts due. In the event of any dispute with regard to a portion of an invoice, the undisputed portion shall be paid as provided herein, and you shall notify Reaction Commerce in writing of the reason for your dispute.
Termination. The Subscription Services will continue for the duration of the Subscription Term specified in the applicable Order Form, and shall automatically renew for additional periods of the same duration as the Subscription Term or for one year if the Subscription Term is greater than one year unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
In addition to any other remedies it may have, either party may terminate the Subscription Services upon thirty (30) days’ notice (or ten (10) days in the case of nonpayment), if the other party breaches any material term or condition governing the Subscription Services. Reaction Commerce reserves the right, in its sole discretion, to terminate only the specific Subscription Service related to such breach. As related to a breach, You will pay in full for the Subscription Services up to and including the last day on which the Subscription Services are provided. Upon any termination, Reaction Commerce may, but is not obligated to, delete archived data. A breach of any terms and conditions governing Reaction Commerce’s other services provided to you (if any) does not provide the non-breaching party the right to terminate Subscription Services. The sections of this Agreement titled “Payment”, “Confidentiality”, “Warranty”, “Limitation of Liability”, “Indemnification” and “General Provisions” will survive termination of this Agreement or any part hereof and will survive termination, including, without limitation, accrued rights to payment.
Definition of Confidential Information. “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as “Confidential” and/or “Proprietary”, or (c) reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall include, without limitation, the terms and conditions of the Agreement (including pricing and other terms reflected in all Order Forms and SOWs), the Data, business and marketing plans, technology and technical information, financial information, business strategies, practices, procedures, methodologies, know-how, product designs, and business processes. Confidential Information (except for Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party by the Receiving Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without use of the Confidential Information of the Disclosing Party; or (iv) is rightfully received from a third party not known by the Receiving Party to be subject to an obligation owed to the Disclosing Party.
Confidentiality. The Receiving Party shall use practices consistent with generally accepted industry standards to protect the security of Confidential Information it receives from the Disclosing Party and to prevent the disclosure or use any such Confidential Information for any purpose other than to fulfill the purpose of the Agreement. Notwithstanding the foregoing: (a) the Receiving Party may disclose such Confidential Information to its employees and contractors, as well as those of its Affiliates, who have a need to know such information for purposes relating to the Agreement, and hereby certifies that prior to disclosure it will cause such employees and contractors to agree to be bound by terms and conditions of confidentiality substantially similar to those in this MSA; and (b) each party may disclose the existence and terms of the Agreement: (i) in confidence, to a potential purchaser of or successor to any portion of such party’s business; (ii) to its attorneys, accountants and other advisors having a need to know the same; and (iii) if necessary to enforce its rights under the Agreement, provided that the Receiving Party uses reasonable efforts to limit such disclosure and to obtain confidential treatment of, or a protective order governing, the terms of the Agreement.
Compelled Disclosure. If the Receiving Party is requested to, or subject to a legal obligation to, disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with notice of the same as early as reasonably practical (if legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek immediate injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate. Client acknowledges that Reaction Commerce is unable to guarantee absolute security of Data or Confidential Information and that Reaction Commerce has no liability to Client for any unauthorized access or use of such Data or Information by a third party, or the corruption, deletion, destruction or loss of any such Data or Information, unless Reaction Commerce’s security practices are below generally accepted industry standards.
Anonymous and Aggregate Data. Notwithstanding anything to the contrary in the MSA, Reaction Commerce may separately collect anonymous data with respect to the aggregate usage of and other aggregate measures (“Anonymous and Aggregate Data”) of the Subscription Service’s performance and compliance to usage limitations as indicated on Order Form; provided that the Anonymous and Aggregate Data (i) does not identify in any way or permit identification in any way of Client or any person; (ii) does not identify in any way or permit identification in any way of Client’s Confidential Information ; and (iii) does not include any Client Property.
NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
Disclaimer of Warranties. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY US, THE WEBSITE AND SERVICE ARE PROVIDED “AS IS,” AND ARE FOR USE SOLELY AS CONTRACTED HEREIN. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH THEREIN, WE HEREBY DISCLAIM ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS WITH REGARD TO OUR SITE AND OUR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND QUALITY OF OUR PRODUCTS AND SERVICES EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. WE MAKE NO REPRESENTATIONS, GUARANTIES OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE WEBSITE OR SERVICE AND/OR MATERIALS ASSOCIATED WITH THE WEBSITE OR SERVICE, OR THE RESULTS YOU MAY OBTAIN BY ACCESSING OR USING THE WEBSITE, SERVICE AND/OR MATERIALS ASSOCIATED THEREWITH. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE WEBSITE OR SERVICE WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE; (B) THE QUALITY OF SERVICES, INFORMATION, OR OTHER MATERIAL YOU PURCHASE OR OBTAIN THROUGH THE WEBSITE WILL MEET YOUR REQUIREMENTS; OR (C) THE PRODUCTS, SERVICES, MATERIALS, OR THE SYSTEMS THAT MAKE THE WEBSITE OR SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT WE DO NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE WEBSITE, SERVICE AND/OR MATERIALS ASSOCIATED THEREWITH MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Domestic and Foreign Use
You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons. The Licensed Application and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
Limitation of Liability
TO THE EXTENT ALLOWED BY LAW, IN NO EVENT SHALL THERE BE ANY LIABILITY ON REACTION COMMERCE, INC., OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, LICENSORS, AND SUPPLIERS. IN NO EVENT SHALL REACTION COMMERCE, INC. OR THE THIRD PARTY PROVIDERS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES TO YOUR COMPUTER, TELECOMMUNICATION EQUIPMENT, OR OTHER PROPERTY AND/OR FOR LOSS OF DATA, CONTENT, IMAGES, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THESE TERMS & CONDITIONS, INCLUDING BUT NOT LIMITED TO THE ACCESSING OR USE OF, OR INABILITY TO USE, THE WEBSITE AND THE SERVICE THERE WITH INCLUDING BUT NOT LIMITED TO THE DOWNLOADING OF ANY MATERIALS, REGARDLESS OF CAUSE, WHETHER IN AN ACTION IN CONTRACT OR NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR THE THIRD PARTY PROVIDER HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REACTION COMMERCE’S TOTAL LIABILITY TO CUSTOMER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO REACTION COMMERCE BY CUSTOMER UNDER THE ORDER FORM GIVING RISE TO ANY LIABILITY HEREUNDER. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY IN THE EVENT OF CLIENT’S BREACH, OR RELATED TO CLIENT’S INDEMNITY OBLIGATIONS. THIS PARAGRAPH SHALL NOT AFFECT THE RIGHTS LISTED BELOW IN THE SECTION TITLED “INDEMNIFICATION.”
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS REACTION COMMERCE, INC., ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, LICENSORS, AND SUPPLIERS FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING, BUT NOT LIMITED TO ALL ATTORNEYS’ FEES CHARGED TO REACTION COMMERCE, INC., RESULTING FROM ANY VIOLATION OF THIS AGREEMENT OR THE TERMS & CONDITIONS BY YOU OR ANY OTHER PERSON ACCESSING THE WEBSITE OR SERVICE ON YOUR BEHALF.
Entire Agreement. The Agreement, including any applicable Order Form, any SOW(s) and the Terms of Service, comprise the complete and exclusive agreement between the parties, which supersedes all proposals or prior agreements, oral or written agreement, and all other communications between the parties relating to the subject matter hereof.
This Agreement shall be governed by the laws of the State of California, without giving effect to any principles that provide for the application of the law of another jurisdiction. All proceedings shall be conducted in English. Venue for all proceedings shall be Los Angeles County, California, provided that Reaction Commerce may seek injunctive relief in any court of competent jurisdiction. Nothing in this Agreement or any SOW will prevent either Party from pursuing temporary restraining order, injunctive relief or other equitable relief from a court of competent jurisdiction against the other Party at any time if the disputing or allegedly aggrieved Party believes that a breach or threatened breach of any of the provisions of this Agreement or any Order Form would cause it irreparable harm. The section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement. Except for Licensee’s obligation to pay Reaction Commerce, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. If any provision of this Agreement is held to be unenforceable, this Agreement shall be construed without such provision. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party’s right to exercise such right or any other right in the future. Reaction Commerce may modify this Agreement prior to any renewal of this Agreement, with such modifications to take effect upon such renewal. The parties agree to receive electronic documents and accept electronic signatures (information attached or logically associated with such document and clicked or otherwise adopted with an intent to sign) including in counterparts, which shall be valid substitutes for paper-based documents and signatures, and the legal validity of a transaction will not be denied on the ground that it is not in writing. Subsequent to the execution and delivery of this Agreement, and without any additional consideration, each party shall execute and deliver any further legal instruments and perform any acts that are or may become reasonably necessary to effectuate the purposes of this Agreement.
No Agency Relationship. Except where provided for in a separate agreement with Reaction Commerce, no agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by this Agreement. Without limiting the foregoing, except as expressly set forth herein, Reaction Commerce is not acting and does not act as an agent for any user or visitor of their Website.
Conflicts. Shall a conflict or contradiction exist between this Agreement and any others which relate specifically to a particular section of the Reaction Commerce’ Website or Services, the specific terms relevant to that section shall prevail.
Severability. Any provision of this Agreement found to be unenforceable will not void nor affect other provisions of this agreement.
Dispute Resolution. In the event that any dispute or other disagreement arises out of, or relates to, this Agreement or any SOW, or the performance of the terms hereof or thereof by either of the Parties (each, a “Dispute”), the following Internal Corporate Alternative Dispute Resolution Process is a condition precedent to any Party’s ability to commence arbitration. The process will proceed as follows:
Reaction Commerce’s Account Manager (Account Manager) will have fifteen (15) days, upon receipt of a written summary of the matter in dispute, within which to mutually agree to a resolution of such Dispute.
If Account Manager is unable to resolve any such Dispute within fifteen (15) days, the unresolved Dispute will be referred to the designated corporate official of each Party, with a written report from Account Manager as to the unresolved Disputes. The designated corporate officials will then have fifteen (15) days within which to mutually agree to a resolution of such Disputes.
If either the designated parties are unable to reach agreement, or the Dispute has not been finally resolved within forty-five (45) days of first submission to the Account Manager, then either Party may proceed to Arbitration.
Arbitration. All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the state of California or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. Any such arbitration shall be conducted by an arbitrator experienced in manners related to the Software or Professional Services and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction.
The prevailing Party in any Dispute, legal action, suit or proceeding will recover, in addition to any award or judgment, all of its costs and expenses, including reasonable attorneys’ fees, the fees of other professionals relevant to the Dispute, legal action, suit or proceeding, and reasonable expert witness fees.
Nothing in this Agreement or any Order Form will prevent either Party from pursuing temporary restraining orders, injunctive relief or other equitable relief from a court of competent jurisdiction against the other Party at any time to prevent irreparable harm.
Notice for Users in California. This notice is for users of the Website residing in the State of California. Please be advised that the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be reached by mail at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (800) 952-5210.