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This Master Subscription Agreement (“Agreement”) is between Gorgias Inc. (“Gorgias,” “we,” “us,” or “our”) and you (if you act in your individual capacity) or the company, organization, or other legal entity on behalf of which you act as an authorized representative (in either case, “Customer”).
This Agreement governs (a) Customer’s subscription to access and use Gorgias software-as-a-service and services, including but not limited to any related application programming interface, all related mobile, integrations and add-ons to which Customer subscribes collectively, the “Services”) under the applicable subscription plan(s) selected by Customer and described (i) at https://www.gorgias.com/pricing or (ii) in the applicable Order Form (as applicable, the “Subscription Plan”) and (b) the Agents’ and End-Users’ (as each such term is defined below) access to and use of the Services. The terms of the Subscription Plan(s) are hereby incorporated by reference herein.
The parties may also enter into one or more Order Forms referencing this Agreement. Unless otherwise specified, all such Order Forms shall be governed by this Agreement. In the event of a conflict between this Agreement and an Order Form, the Order Form shall control with respect to the subject matter therein.
THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN CUSTOMER AND GORGIAS. BY USING THE SERVICES, SELECTING A SUBSCRIPTION PLAN, ENTERING IN AN ORDER FORM, OR OTHERWISE SUBSCRIBING TO OR CONTRACTING FOR THE SERVICES, OR AUTHORIZING OR PERMITTING ANY AGENTS OR END-USERS TO ACCESS OR USE THE SERVICES, CUSTOMER AGREES TO BE LEGALLY BOUND TO THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT THIS ELECTRONIC AGREEMENT WILL HAVE THE SAME LEGAL FORCE AND EFFECT AS IF IT WERE IN PAPER FORM WITH CUSTOMER’S WRITTEN SIGNATURE.
If you are an individual entering into this Agreement in your individual capacity, you represent to Gorgias that you are at least 18 years old and have the legal capacity to be bound by this Agreement; if you are an individual entering into this Agreement on behalf of a company, organization, or other legal entity, you represent to Gorgias that you have the authority to bind such entity to this Agreement. If the foregoing (as applicable) is not true, or if Customer does not agree with the terms and conditions in this Agreement, Customer must not use nor authorize any use of the Services.
The Gorgias Data Processing Agreement and its Exhibits (“DPA”) is incorporated into and forms part of this Agreement.
Certain Services and features of Services may be subject to supplemental terms and conditions unique to such Services or features (as defined below). Supplemental Terms do not replace this Agreement, but rather supplement it. Supplemental Terms include, without limitation: (i)https://www.gorgias.com/legal/supplemental-terms (“Professional Services Addendum”), which governs any professional or onboarding services purchased by Customer and is activated upon execution of an applicable Order Form or Statement of Work; and (ii) the Business Process Outsourcing Agreement (“BPO Agreement”), which governs outsourced agent services. Supplemental Terms will be binding only if expressly agreed to by Customer. In the event of any conflict between this Agreement and any Supplemental Term, this Agreement shall prevail, except as set forth in the Order of Precedence clause below.
1. Definitions
“Affiliate” means, with respect to a party to this Agreement, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of, such entity, whether through the ownership of voting securities, by contract, or otherwise.
“Agent” means any individual or entity that is an employee, consultant, service provider, contractor, or agent of Customer and that is granted access to the Services by Customer, solely in support of Customer’s internal business purposes.
“Customer Data” means all data stored by or on behalf of Customer or at Customer’s direction in the Services.
“Documentation” means Gorgias documentation relating to the Services found here, as may be updated by Gorgias from time to time.
“End-Users” means individual customers or consumers of Customer that Customer permits to access the Services.
“Supplemental Terms” means additional terms and conditions that apply to your access and use of certain features or functionality when you purchase, use, or enable such features or functionality.
2. Provision of the Services
2.1 Provision Generally
During the Term (as defined below), Gorgias will provide Customer access to the subscribed Services based on Customer’s applicable Subscription Plan (such access, “Subscription”), in accordance with this Agreement and any Supplemental Terms, in each case as updated from time to time. This Agreement does not cover professional services, which may be provided under a separate agreement between Gorgias and Customer accessible here.
2.2Grant of Rights
Subject to compliance with the terms and conditions of this Agreement, including payment of fees, the eligibility requirements set forth in Section 2.4 and the restrictions and requirements set forth in Section 2.5, Gorgias hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to: (a) access and use, and allow such number of Agents as permitted under the applicable Subscription Plan to access and use, the Services solely for Customer’s internal business purposes, (b) allow End-Users to use the Services solely to the extent necessary to use the support services provided to them by Customer, and (c) download, install, and use the Gorgias-branded software applications provided by Gorgias to enable access to and use of the Services through mobile or other handheld devices (such as apps on iOS or Android devices) (“Mobile Apps”) solely in connection with Customer’s authorized use of the Services as provided in clause (a) of this Section 2.2, in each case of (a) through (c) only during the Term. All rights not expressly granted to Customer in this Agreement are reserved by Gorgias and its licensors. There are no implied rights or licenses granted to Customer under this Agreement or any other agreement concerning the Services.
2.3 Excess Use
If Customer’s use of the Services exceeds the volume of use permitted by the access grant then in effect under the applicable Subscription Plan (including, by way of example, as to the number of Agents or tickets) (“Excess Use”), then Customer will either (a) upgrade such Subscription Plan to accommodate such Excess Use (such upgraded Subscription Plan, the “Upgraded Plan”) or (b) remain on the same Subscription Plan and pay Gorgias, in addition to any and all other payment obligations of Customer, the difference between: (i) the amounts applicable to the Upgraded Plan that would accommodate the Excess Use and (ii) the amounts paid or payable by Customer for the Subscription Term(s) during which there was Excess Use, in each case of (a) and (b) promptly upon the earlier of Gorgias’s notifying Customer of the Excess Use and Customer’s becoming aware of the Excess Use. For clarity, Customer will remain responsible for all Excess Use charges incurred under the original Subscription Plan up to the effective date of the Upgraded Plan. For further clarity, an Upgraded Plan is a Subscription Plan and, accordingly, terms applicable to a Subscription Plan in this Agreement will apply to the Upgraded Plan. Customer may not downgrade its Subscription Plan during the Initial Term. Downgrades may only occur at renewal; provided, however, that for customers on a monthly Subscription Term (if applicable), any downgrade must be requested no fewer than five (5) days prior to the end of the then-current monthly billing period.
2.4 Eligibility Requirements
Customer represents and warrants that Customer meets the following minimum requirements to subscribe to the Services: (a) Customer has the necessary rights and authority to enter into and perform the obligations required in this Agreement; (b) all information that Customer provides, including information provided during registration, information about Customer and any third-party business or Customer’s customers, and all relevant payment information, is within Customer’s right to use and provide to us, and is and will remain accurate, complete, and current; (c) Customer will access and use the Services in compliance with all applicable laws, including all applicable laws and regulations pertaining to data privacy; (d) none of the Customer Data (as defined below) will contain any unlawful, defamatory, offensive, libelous, harassing, abusive, fraudulent, pornographic, or obscene content or material; and (e) Customer will provide Gorgias with any and all information, records, and/or materials requested to verify compliance with the eligibility requirements set forth in this Agreement.
2.5 Service Restrictions and Requirements
(a) Restricted Use
Except as expressly permitted under this Agreement, including any Supplemental Terms, Customer will not (and will not authorize any third party to): (i) use the Services to develop or market any product, software, or service that is functionally similar to or derivative of the Services, or for any other purpose not expressly permitted herein; (ii) access or use the Services except as envisioned by the Services in their normal operation or as specified in the documentation available at https://docs.gorgias.com/en-US (the “Documentation”); (iii) license, sublicense, sell, resell, distribute, rent, lease, transfer, assign, time share, service bureau, post, link, disclose, or otherwise commercially exploit the Services, directly or indirectly, to any third party other than as permitted hereunder with respect to End-Users and Agents; (iv) alter, modify, debug, reverse engineer, decompile, disassemble, reproduce, copy, or otherwise attempt to derive or gain access to any software (including source code) associated with the Services, including the Mobile Apps; (v) use tracking technologies to track individuals or user behavior related to ad exchanges, ad networks, data brokerages, or to send electronic communications (including e-mail) in violation of applicable law; or (vi) falsely imply any sponsorship by or association with Gorgias other than as a subscriber of the Services.
(b) API and Password Protection
Customer will keep all passwords and API keys provided to it safe and secure and will be responsible for all use of the Services using passwords and/or API keys issued to Customer. Customer will notify Gorgias immediately of any actual or reasonably suspected unauthorized use of its passwords or API keys for the Services. Without limiting any of its other rights or remedies (including, without limitation, under Section 7.6), Gorgias reserves the right to suspend access to the Services if Gorgias reasonably believes that Customer has materially violated the restrictions and obligations in this Agreement (in which case, Gorgias will endeavor to provide Customer prompt written notice of such suspension and an opportunity to cure, as practical and reasonable under the circumstances).
2.6 Customer Support and Cooperation
We will use commercially reasonable efforts to make the subscribed Services available 24 hours a day, 7 days a week, except during (a) Planned Downtime and (b) Force Majeure Events (as defined below). Customer’s Subscription Plan includes, at no additional cost to Customer, standard customer support for the subscribed Services, as may be detailed in the related Documentation. Customer may be able to procure (i) support beyond standard customer support and (ii) the right to a dedicated compatibility support module (CSM) by purchasing such support or subscribing to an Upgraded Plan. Customer will cooperate with Gorgias as reasonably necessary for Gorgias to provide the Services and support in accordance with this Agreement, which may include providing Gorgias reasonably requested information. For purposes of this Section 2.6, “Planned Downtime” means planned downtime for upgrades and maintenance to the Services scheduled in advance of such upgrades and maintenance.
2.7 Modification of Services
Gorgias retains the right to modify the Services, including the Mobile Apps and any features and functionality of the Services, during the Term. If such modification deprecates a material feature or functionality of the subscribed Services, Customer may terminate the applicable Subscription in accordance with the cancellation procedures identified in Section 7.5 and receive a refund for any pre-paid fees for Services not provided after that termination.
2.8 Technical Requirements
To access and use the Services, Customer is responsible, at its own expense, for obtaining Internet access and any applicable hardware, software, and data communications services required to connect to the Services or implement an interface between Gorgias Technology (as defined below) and a Customer’s system. Customer acknowledges that a high-speed Internet connection is required for proper transmission of the Services. Customer is also responsible for procuring and maintaining the network infrastructure and communications services it needs to access and use the Services, and maintaining updated browser, operating system, and other software that enable secure access to the Services and use of the Mobile Apps, including as explained in the Documentation. Gorgias is not responsible for any Customer or third-party software and hardware that are not provided by Gorgias, or for any compromise of any data, including Customer Data, transmitted using systems and telecommunications facilities that are not owned, operated, or controlled by Gorgias. Customer’s access to and use of any Gorgias Technology is subject to the restrictions and policies implemented by Gorgias from time to time with respect to such technologies, as provided in the Documentation or communicated to Customer.
2.9 Customer Personal Data
To the extent that Gorgias processes any Customer Personal Data (as defined in the DPA), the terms of Data Processing Addendum (DPA) are hereby incorporated into and form part of this Agreement.
3. Customer Data and Usage Data
3.1 Customer Data
Customer is solely responsible for all data and information that the Customer, Agents, and End-Users input into the Services (all such data and information, “Customer Data”). Gorgias does not guarantee, and Customer is solely responsible for reviewing and assessing, the accuracy, integrity, and quality of Customer Data. Customer will not do any of the following and will ensure that no Agent or End-User does any of the following: (A) upload or otherwise make available to Gorgias any Customer Data that is unlawful or that violates the rights of any third parties; (B) upload or otherwise make available to Gorgias any Customer Data that Customer does not have a right to transmit due to any law, rule, regulation, or other obligation; (C) use, upload, or otherwise transmit any Customer Data that infringes any intellectual property or other proprietary rights of any third party; (D) upload or otherwise make available to Gorgias any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (E) interfere with or disrupt the Services or servers or networks connected to the Services; (F) upload or otherwise make available, or permit the upload to Gorgias of, any Customer Data that constitutes “protected health information” under the Health Insurance Portability and Accountability Act or any regulation, rule, or standards issued thereunder, or that constitutes similarly protected information under any applicable state rule or regulation; or (G) violate any applicable law, rule, or regulation, including those regarding the export or re-export of technical data. Gorgias will have no liability under this Agreement for any protected health information supplied by Customer or any Agent or End-User, notwithstanding anything to the contrary in this Agreement or under federal or state laws. Customer will keep its Customer Data current, accurate, and complete. Customer acknowledges and understands that Gorgias may rely on Customer Data to send notices, statements, and other information to Customer via email or through Customer’s User Account (as defined below) and/or the Mobile Apps.
3.2 Usage Data
Customer acknowledges that the use of the Services generates data, such as query logs and data relating to: the configuration (including, without limitation, third-party integrations) and operation of the Services; Customer’s and the Agents’ and End-Users’ use of, and interactions with, the Services (including the Mobile Apps) and other Gorgias Technology; and support provided in connection with the Services (such data, collectively, “Usage Data”). Notwithstanding anything to the contrary in this Agreement, Gorgias will collect and may use Usage Data to develop, improve, support, and operate its products and services without providing any compensation to Customer or to any third party. Gorgias may also analyze Customer Data, and data of other customers, to create aggregated statistics or data that do not identify Customer or any Agent, End-User, or other individual, household, user, browser, or device (“Aggregate Data”). Gorgias may, during and after the Term, use and share such Aggregate Data and Usage Data in its discretion and without providing any compensation to Customer or to any third party. Solely as permitted under applicable law, Gorgias owns and controls all Usage Data and Aggregate Data, subject to the Privacy Notice (if Customer resides in a jurisdiction other than the European Economic Area (“E.E.A.”)) or EU Privacy Notice (if Customer resides in an E.E.A. jurisdiction), as applicable. To the extent any ownership rights in or to Usage Data and/or Aggregate Data vest in Customer, any Agent(s), or any End-User(s), Customer hereby assigns, on behalf of itself and the applicable Agent(s) and/or End-User(s), to us all rights (including intellectual property rights), title, and interest in and to same.
4. Feedback and AI Learnings
4.1 Feedback
Notwithstanding anything to the contrary herein, to the extent that Customer, an Agent, or and End-User at any time provides Gorgias with any suggestions, enhancement requests, recommendations, or other feedback regarding the Services, including potential improvements or changes thereto (collectively, “Feedback”), Customer hereby grants, on behalf of itself and the applicable Agent(s) and/or End-User(s), to Gorgias and its Affiliates a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable, and perpetual license to implement, modify, commercially exploit, incorporate into the Services, and otherwise use (including on a non-confidential basis) any such Feedback in any manner Gorgias chooses, including, without limitation, as described in Section 4.2. Gorgias has the right to seek intellectual property protection for any features, functionality, or components that may be based on Feedback in its own name. All Feedback provided by Customer is provided “AS IS” and without warranty or representation of any kind.
4.2 Machine Learning and Artificial Intelligence; Output
Customer acknowledges and agrees that Gorgias may, without providing any compensation to Customer or to any third party, use information gathered, collected, and/or generated in the course of providing the Services, including Customer Data, Feedback, Aggregate Data, Usage Data, and Output (as defined below), solely to build and improve our internal machine learning and other artificial intelligence models to the extent permitted by law and otherwise consistent with our obligations set forth in this Agreement. Gorgias will not use Customer Data to improve or train any third-party provider’s models. Any third-party provider utilized by Gorgias will operate under a zero-data-retention policy and will not use Customer Data to improve or train their models
Subject to Customer’s compliance with this Agreement, Customer may use the output generated by the Services based on certain Customer Data (“Output”) for any lawful purpose (except as described below), on a royalty-free basis, provided that Customer acknowledges and agrees that: (a) Customer’s use of the Services and the Output does not transfer to Customer ownership of any intellectual property rights in or to the Services and (b) we may, by notice to Customer at any time, limit Customer’s use of the Output or require Customer to cease using the Output (and delete any copies of the Output) if we form the view, in our sole and absolute discretion, that Customer’s use of the Output may infringe the rights of any third party. Customer shall not represent that Output was human-generated or use the Output to train Customer’s own machine learning models.
CUSTOMER ACKNOWLEDGES THAT, DUE TO THE NATURE OF MACHINE LEARNING, THE OUTPUT MAY NOT BE UNIQUE ACROSS USERS OF THE SERVICES AND THE SERVICES MAY GENERATE THE SAME OR SIMILAR OUTPUT FOR MULTIPLE USERS. CUSTOMER FURTHER ACKNOWLEDGES MACHINE LEARNING AND ARTIFICIAL INTELLIGENCE INVOLVES PROBABILISTIC PROCESSING, AND THE USE OF OUR SERVICES LEVERAGING THESE TECHNOLOGIES MAY IN SOME SITUATIONS RESULT IN INCORRECT OR INACCURATE OUTPUT. CUSTOMER IS SOLELY RESPONSIBLE FOR REVIEWING AND ASSESSING THE ACCURACY, INTEGRITY, AND QUALITY OF ALL OUTPUT. CUSTOMER AGREES THAT WE SHALL NOT BE LIABLE FOR ANY DAMAGES CUSTOMER OR ANY THIRD PARTY ALLEGES TO INCUR AS A RESULT OF OR RELATING TO ANY OUTPUT OR OTHER CONTENT GENERATED BY OR ACCESSED ON OR THROUGH THE SERVICES.
5. Ownership
5.1 Gorgias Technology
The Services consist of and/or are supported by (a) Gorgias’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information), (b) Gorgias’s business proprietary information (including the data, information, text, images, designs, sound, music, marks, logos, compilations (meaning the collection, arrangement, and assembly of information), and content (other than Customer Data)) made available or used in providing the Services, (c) Usage Data and Aggregate Data, (d) modifications, improvements, and derivatives of the foregoing, and (e) all intellectual property and industrial rights in and to the foregoing (collectively, the “Gorgias Technology”). As between the parties, all rights (including any and all intellectual property rights), title, and interest in and to the Gorgias Technology are and will remain owned by Gorgias or its licensors, and this Agreement in no way conveys any right, title, or interest in or to the Services or the Gorgias Technology other than a limited right to access and use the Services in accordance with this Agreement.
5.2 Customer Data
Gorgias acknowledges and agrees that, as between Customer and Gorgias, all rights, title, and interest in and to the Customer Data are and will remain owned by Customer or its licensors, and this Agreement in no way conveys any right, title, or interest in or to the Customer Data other than as set forth in this Agreement or in any Supplemental Terms. As between the parties, Customer and its licensors retain all rights (including any and all intellectual property rights), title, and interest in and to the Customer Data, except as set forth in this Agreement or in any Supplemental Terms. Subject to the terms of this Agreement, Customer hereby grants to Gorgias a worldwide, irrevocable, transferable, sub-licensable (through multiple layers), assignable, non-exclusive, fully paid-up, royalty-free--and, with respect to clause (b) hereof only, perpetual--right to use, reproduce, copy, store, manipulate, modify, distribute, publish, list information regarding, make derivative works of and publicly perform and display the Customer Data (a) during the Term in connection with providing the Services, including the Mobile Apps, and performing all related obligations owed to Customer under this Agreement, or as may be required by law; and (b) during the Term and thereafter, (i) to maintain, provide, and improve our products and services, including the Services, and for our other business purposes, such as data analysis, customer research, developing new products or features, and identifying usage trends, and (ii) to perform such other actions as described herein (including, without limitation, pursuant to Section 4.2) or as otherwise authorized by Customer in connection with Customer’s use of the Services.
5.3 Marks
No right or license is granted hereunder to Customer under any trademarks, service marks, trade names, or logos of Gorgias. Customer will not remove any Gorgias trademark, service mark, or logo, or any proprietary notices or labels (including any copyright or trademark notices) from the Services or Documentation.
6. Fees; Payments; Taxes
6.1 Fees
In consideration of the Services, Customer will pay Gorgias the fees set forth in the applicable Subscription Plan or Order Form, (“Subscription Fees”). Unless otherwise stated in the applicable Order Form,, Subscription Fees are due hereunder must be paid at the start of each subscription term,, are non-cancelable once incurred and non-refundable. Customer’s use of the Services is subject to the limitations in the applicable Subscription Plan.
6.2 Payment Method
All fees due hereunder will be paid by credit card, or, if agreed to in writing by Gorgias, through automated clearing house (“ACH”) transfers (each such payment method and related information provided by Customer, a “Payment Method”). By providing a Payment Method, Customer authorizes each of Gorgias and the third-party payment processor(s), such as Stripe, Inc., that we engage to process payments in connection with the Services (“Payment Processor”) to charge, or collect via, that Payment Method the applicable fees (including Subscription Fees) and Taxes (as defined below), including, if applicable, on a recurring basis until, with respect to Subscription Fees, Customers cancels the Subscription (including the applicable notice period specified in Section 7.5). Fees and Taxes will be charged to, or collected via, Customer’s Payment Method on the specific payment date indicated in Customer’s account on the Services (“User Account”). In some cases, Customer’s payment date may change (for example, if Customer’s Payment Method has not successfully settled, if the Subscription Plan changed, or if the Subscription began on a date not contained in a subsequent month). The length of Customer’s billing cycle will depend on the applicable Subscription Plan (if applicable). Fees are fully earned upon payment. We may authorize Customer’s Payment Method in anticipation of Services-related charges through various methods.
6.3 Payment Processor
Gorgias is not a payments processor, intermediary, or payment agent. The Payment Processor is acting solely as a billing and processing agent for and on behalf of Gorgias. Gorgias will not be construed to be providing payment or other financial services, and the Payment Processor will not be construed as providing the Services. Gorgias or Payment Processor will attempt to verify Customer’s Payment Method(s), and may do so by processing an authorization hold, which is standard practice. To the extent Payment Processor processes payments made by Customer, Customer will be subject to terms and conditions governing the use of Payment Processor’s service, including, without limitation, Stripe, Inc.’s Services Agreement applicable to Customer (available at https://stripe.com/legal/ssa). Please review such terms and conditions as well as Payment Processor’s privacy notice (each of which is available on Payment Processor’s website). Customer acknowledges and understands that Payment Processor may collect and retain a portion of the fees (including Subscription Fees) Customer pays to Gorgias whenever Customer pays such fees. We do not view or store Customer’s full credit card or other Payment Method information. If any of Customer’s account, order, or Payment Method information changes, Customer will promptly update such information, so that we or Payment Processor may complete Customer’s transaction(s) and/or contact Customer, as needed.
6.4 Late Payments and Disputed Fees
Customer will pay interest on all late payments for amounts not subject to a timely good faith dispute at the lesser of (a) 1% per month and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer will reimburse Gorgias for all reasonable costs and expenses, including reasonable attorneys’ fees, incurred in collecting any unpaid undisputed amounts owed by Customer hereunder. If Customer reasonably and in good faith disputes any amount invoiced, it will promptly inform Gorgias of such dispute and may withhold payment for the amount subject to such dispute for a period of 30 days. If the parties are unable to resolve the dispute within such 30 days, each party will have the right to seek any remedies it may have under this Agreement, at law, or in equity.
6.5 Payment Representations and Warranties
Customer represents and warrants that: (a) the account and order information and the Payment Method Customer supplies to us and/or to Payment Processor, as applicable, is true, accurate, correct, and complete; (b) Customer is duly authorized to use the Payment Method(s); (c) Customer will pay any and all charges incurred by users of Customer’s Payment Method(s) in connection with the Services, including any applicable fees (at the prices in effect when such charges are incurred) and Taxes; (d) charges incurred by Customer will be honored by the Payment Method’s company; (e) Customer will not allow or enable anyone else to use Customer’s Subscription (including, without limitation, by sharing Customer’s password(s) or any other authentication credentials with any third party, or by attempting to transfer Customer’s Subscription to anyone else); and (f) Customer will report to us any unauthorized or prohibited access to or use of Customer’s Subscription and/or password(s) or other authentication credentials.
6.6 Disclaimer
We disclaim any and all liability with respect to, and Customer understands and acknowledges that we are not responsible for: (a) any security or privacy breaches related to Customer’s credit card or other Payment Method, (b) any fees that may be charged to Customer by Customer’s bank in connection with the collection of fees in connection with the Services (including Subscription Fees), and/or (c) any unauthorized use of Customer’s Payment Method by a third party.
6.7 Taxes
All amounts due hereunder are exclusive of all sales, use, excise, service, value added, and/or other taxes, duties, and charges of any kind (whether foreign, federal, state, local, or other) associated with this Agreement, the Services, or Customer’s access to the Services (collectively, “Taxes”). Customer agrees to pay any and all applicable direct and indirect Taxes associated with its transactions hereunder that Gorgias is legally required to collect and that Gorgias itemizes on Gorgias’s invoice(s). If Customer has an obligation to withhold any amounts under applicable law (other than U.S. income tax law), Customer will gross up the payments so that Gorgias receives the amount actually quoted and invoiced. If Gorgias has the legal obligation to pay or collect Taxes for which Customer is responsible, Customer will reimburse Gorgias for such amounts. Customer must timely provide Gorgias with any valid tax exemption certificates authorized by the appropriate taxing authority.
7. Subscription Payments
7.1 Automatic Renewals
SUBSCRIPTIONS ARE AVAILABLE ON AN AUTOMATICALLY RENEWING SUBSCRIPTION BASIS AND ENTAIL PAYMENT OF RECURING SUBSCRIPTION FEES. CUSTOMER’S SUBSCRIPTION WILL COMMENCE UPON CUSTOMER’S SELECTION OF AN APPLICABLE SUBSCRIPTION PLAN AND WILL CONTINUE FOR THE PERIOD OF THE INITIAL SUBSCRIPTION PERIOD SPECIFIED IN THAT SUBSCRIPTION PLAN (THE “INITIAL TERM”), UNLESS CANCELLED EARLIER IN ACCORDANCE WITH THIS AGREEMENT. IF THE SUBSCRIPTION IS NOT CANCELLED AT THE EXPIRATION OF THE INITIAL TERM, THEN THE SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR SUCCESSIVE TERMS, EACH THE LENGTH OF THE INITIAL TERM (EACH, A “RENEWAL TERM”) UNLESS AND UNTIL CUSTOMER CANCELS THE APPLICABLE SUBSCRIPTION IN ACCORDANCE WITH THE CANCELLATION PROCEDURES IDENTIFIED IN SECTION 7.5 (INCLUDING THE APPLICABLE NOTICE PERIOD SPECIFIED IN SECTION 7.5). THE INITIAL TERM OR THE APPLICABLE RENEWAL TERM (AS APPLICABLE) IS REFERRED TO HEREIN AS A “SUBSCRIPTION TERM”; THE TIME PERIOD SPANNING THE INITIAL TERM TOGETHER WITH ANY AND ALL RENEWAL TERMS (I.E., ALL THE SUBSCRIPTION TERMS) IS REFERRED TO HEREIN AS THE “TERM.”
7.2 Automatic Billing and Policies
When Customer enrolls in a Subscription, Customer expressly acknowledges and agrees that: (a) each of Gorgias and Payment Processor is authorized to charge Customer, at the beginning of each Subscription Term, the Subscription Fees for such Subscription, any applicable Taxes, and any other charges Customer may incur in connection with such Subscription, subject to adjustment in accordance with this Agreement; and (b) Customer’s Subscription is continuous until the earlier of: (i) Customer’s cancellation of such Subscription (including the applicable notice period specified in Section 7.5) and (ii) the termination of Customer’s access to such Subscription or to the Services in accordance with this Agreement. Customer understands and acknowledges that the amounts billed may vary due to changes to the Subscription Fees in accordance with the Subscription Plan and/or changes in applicable Taxes, and Customer authorizes each of Gorgias and Payment Processor to charge Customer’s Payment Method the changed amounts.
7.3 Fee Increases
Gorgias reserves the right to increase Subscription Fees following the Initial Term, for any Renewal Term, on at least 60 days’ prior notice. If Customer objects to the fee increase, Customer may cancel the applicable Subscription in accordance with the cancellation procedures identified in Section 7.5 before the first Renewal Term to which the fee increase applies. If Customer does not exercise its right of cancellation during such period, Customer will be deemed to have accepted the increased fees.
7.4 Subscription Plan Upgrades and Downgrades
If Customer subscribes to an Upgraded Plan during a Subscription Term, any incremental increases to the Subscription Fees associated with such Upgraded Plan will be charged for the remainder of the then-current Subscription Term. Customer may not downgrade its Subscription Plan during any Subscription Term. If Customer desires to downgrade its Subscription Plan for a subsequent Subscription Term, Customer must provide Gorgias with written notice no less than (a) 30 days prior to the end of the then-current Subscription Term if such Subscription Term is annual, or (b) 5 days prior to the end of the then-current Subscription Term if such Subscription Term is monthly, in each case of (a) and (b) by contacting us at billing@gorgias.com. Customer must take such actions as required by Gorgias to accommodate the downgrade of the Subscription Plan prior to the beginning of the upcoming Subscription Term. To the extent permitted by applicable law, Gorgias is not responsible for any loss of data, content, features, or capacity of the Services after any such downgrade.
7.5 Cancellation Procedures
To cancel any Subscription, Customer must provide us with written notice no less than 30 days prior to the end of the then-current Subscription Term regardless of whether the Subscription is monthly or annual Notice must be provided either through by using the appropriate functionalities of the Services or by contacting us at billing@gorgias.com. Customer’s Subscription will continue through the end of the then-current Subscription Term. CUSTOMER UNDERSTANDS THAT, UNLESS AND UNTIL CUSTOMER NOTIFIES US OF CUSTOMER’S INTENT TO CANCEL, CUSTOMER’S SUBSCRIPTION AND THE CORRESPONDING SUBSCRIPTION FEES WILL AUTOMATICALLY RENEW, AND CUSTOMER AUTHORIZES EACH OF GORGIAS AND PAYMENT PROCESSOR (WITHOUT NOTICE TO CUSTOMER, UNLESS REQUIRED BY APPLICABLE LAW) TO CHARGE CUSTOMER THE APPLICABLE SUBSCRIPTION FEES AND ANY TAXES, USING ANY OF CUSTOMER’S PAYMENT METHODS, FOR EACH SUBSCRIPTION TERM.
7.6 Cancellation; Refunds
Gorgias may de-activate Customer’s User Account at any time or elect not to use the Services during the Term (or any portion thereof), and we may, subject to the terms hereof, with or without prior notice, cancel, suspend, or terminate Customer’s Subscription, permanently terminate or temporarily suspend Customer’s access to Customer’s User Account, or stop providing the Services (or any portion thereof) without liability, at any time, in our sole discretion, for any or no reason, including if, in our sole determination, Customer violates any provision of this Agreement. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT, UNLESS REQUIRED BY APPLICABLE LAW, CUSTOMER WILL NOT BE ENTITLED TO RECEIVE ANY REFUND OR CREDIT FOR ANY SUCH DE-ACTIVATION, CANCELLATION, SUSPENSION, OR TERMINATION, NOR FOR ANY UNUSED TIME ON CUSTOMER’S SUBSCRIPTION, ANY PRE-PAYMENTS MADE IN CONNECTION WITH CUSTOMER’S SUBSCRIPTION, ANY USAGE OR SUBSCRIPTION FEES FOR ANY PORTION OF THE SERVICES, ANY CONTENT OR DATA ASSOCIATED WITH CUSTOMER’S USER ACCOUNT, OR ANYTHING ELSE, AND THAT ANY SUCH REFUNDS OR CREDITS MAY BE GRANTED AT OUR SOLE OPTION AND IN OUR SOLE DISCRETION. If Customer believes Customer has been improperly charged and would like to request a refund, please contact us at billing@gorgias.com.
7.7 Free Trials
We may, at our sole option and in our sole discretion, offer free trials to a particular portion of the Services, subject to the terms of the offer. If Customer is signed up to such a free trial, we or Payment Processor will automatically, with or without notice to Customer, bill Customer’s Payment Method: (a) on the day that follows the last day of such free trial (which day will be the first day of the first Subscription Term), unless Customer cancels the free trial by 11:59 PM Pacific Time on the last day of the free trial period, and (b) on the first day of each subsequent Subscription Term, subject to the terms of this Agreement.
8. Temporary Suspension; Termination
8.1 Temporary Suspension
Without limiting Gorgias’s rights under Section 7.6, Gorgias may, in its sole discretion and upon notice to Customer, elect to suspend Customer’s access to Customer’s User Account, the Subscription, and/or the Services due to Customer’s breach of this Agreement until the breach has been remedied. Gorgias will provide written notice to Customer if the suspended Subscription is reinstated. Without limiting Gorgias’s other rights under this Agreement, Gorgias may restrict functionalities of the Services or suspend the Services (or any part thereof) or the Agents’ or End-Users’ permission to access and use the Services, and may remove Customer Data and/or other content from the Services if (a) we reasonably believe that Customer, an Agent or an End-User has violated this Agreement; or (b) we suspect or detect any malicious activity or software in the Services. We may also remove Customer Data and/or other content to mitigate the risk of a security incident or to protect the rights or content of others. Unless we are legally prohibited from doing so, we will use commercially reasonable efforts to notify Customer of such actions via email. We may refer any suspected fraudulent, abusive, or illegal activity by Customer, an Agent or an End-Users to law enforcement authorities.
8.2 Effects of Termination; Survival
Upon the termination or expiration of the Term: (a) all rights granted to Customer hereunder will terminate, and Gorgias will no longer provide access to the Services to Customer or to any Agents or End-Users, and (b) Customer will cease accessing and using the Services. If requested by Customer, Gorgias will make the Customer Data available to Customer, including as may be provided in the Documentation, for 45 days after the effective date of termination or expiration of the Term. In the event of a suspension, the Customer Data will be available to Customer until Gorgias notifies Customer of a termination. Any obligations that have accrued prior to termination or expiration will survive termination or expiration of this Agreement. In addition, the following Sections, as well as any other provisions herein that by their nature should survive, will survive termination or expiration of the Term: Sections 1, 3, 4, 5, 6, 8.2, and 9 through 13 (inclusive).
9. Representations and Warranties; Disclaimer
9.1 General Representations and Warranties
Each party hereby represents and warrants to the other party that: (a) if such party is a company, organization, or other entity, such entity is duly organized, validly existing, and in good standing in its jurisdiction of organization; (b) such party’s execution, delivery, and performance of this Agreement have been duly and validly authorized by all necessary organizational action on its part or, if such party is an individual, such party has the legal capacity to enter into this Agreement; (c) the provisions set forth in this Agreement constitute legal, valid, and binding obligations of such party, enforceable against such party in accordance with their terms, subject to bankruptcy, insolvency, and other laws affecting creditors’ rights generally; (d) its execution, delivery, and performance of this Agreement does not and will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under any agreement or other obligation to which such party is subject; and (e) it has all rights and permissions necessary to fully perform its obligations hereunder.
9.2 Gorgias Warranty
Gorgias further represents and warrants that: (a) it will provide the Services in a competent and workmanlike manner, consistent with industry standards; and (b) it owns or otherwise has sufficient rights (including, without limitation, all intellectual property rights) to grant the rights granted to Customer under this Agreement. GORGIAS DOES NOT WARRANT THAT IT WILL (OR THAT IT WILL BE ABLE TO) CORRECT ALL REPORTED DEFECTS OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. GORGIAS MAKES NO WARRANTY REGARDING FEATURES OR SERVICES PROVIDED BY ANY THIRD PARTIES.
Customer’s sole remedy for Gorgias’s breach of the warranty in this Section 9.2 will be that Gorgias will remedy the applicable error, or, if Gorgias is unable to do so in a timely manner, refund to Customer actual damages up to a limit of the fees paid for the Services for the Subscription Term during which the breach of warranty occurred.
9.3 Disclaimer
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES, INCLUDING THE MOBILE APPS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, GORGIAS MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SERVICES (WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE), INCLUDING ANY WARRANTY (A) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (B) OF NONINFRINGEMENT, (C) THAT THE SERVICES WILL MEET CUSTOMER’S (OR ANY END-USER’S OR OTHER THIRD PARTY’S) REQUIREMENTS, WILL ALWAYS BE AVAILABLE AND ACCESSIBLE, WILL BE UNINTERRUPTED, TIMELY, OR SECURE, OR WILL OPERATE WITHOUT ERROR, (D) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, OR (E) AS TO THE ACCURACY, COMPLETENESS, CURRENCY, OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICES.
9.4 Beta Services
Occasionally, Gorgias may look for beta testers to help it test new versions and/or features of the Services (each, a “Beta Service”). Beta Services will be identified as “beta” or “pre-release,” or with words or phrases with similar meanings. Beta Services are made available on an “as is” and “as available” basis and, notwithstanding anything to the contrary herein, to the extent permitted under applicable law, without any warranties, indemnification obligations, or other contractual commitments that Gorgias makes for other Services.
9.5 Disclaimer For Third-Party Services
CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE HOSTED BY A THIRD-PARTY HOSTING PROVIDER (THE “HOSTING CONTRACTOR”) AND USES THIRD-PARTY SERVER HARDWARE, DISK STORAGE, FIREWALL PROTECTION, SERVER OPERATING SYSTEMS, MANAGEMENT PROGRAMS, AND WEB SERVER PROGRAMS FOR DELIVERY OF THE SERVICES. ADDITIONALLY, GORGIAS USES THIRD PARTIES TO PROCESS PAYMENTS AND TO PROVIDE OTHER SERVICES THAT AUGMENT THE SERVICES OR ON WHICH THE SERVICES OR CERTAIN FUNCTIONALITIES OF THE SERVICES RELY (ALL SUCH THIRD PARTIES, INCLUDING THE HOSTING CONTRACTOR AND PAYMENT PROCESSOR(S), “THIRD-PARTY SERVICE PROVIDERS”). GORGIAS MAY REPLACE ANY OR ALL OF THE THIRD-PARTY SERVICE PROVIDERS AT ANY TIME. THE USE OF THE SERVICES PROVIDED BY THIRD-PARTY SERVICE PROVIDERS IS SUBJECT TO ANY RESTRICTIONS, TERMS, AND CONDITIONS IMPOSED BY SUCH THIRD-PARTY SERVICE PROVIDERS. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, GORGIAS WILL NOT BE LIABLE FOR ANY PROBLEMS, FAILURES, DEFECTS, OR ERRORS WITH THE SERVICES TO THE EXTENT CAUSED BY A THIRD-PARTY SERVICE PROVIDER. CUSTOMER EXPRESSLY RELIEVES US FROM ANY AND ALL LIABILITY ARISING FROM CUSTOMER’S OR ANY AGENT’S OR END-USER’S ACCESS TO AND/OR USE OF ANY ASPECT OF THE SERVICES PROVIDED BY A THIRD-PARTY SERVICE PROVIDER. CUSTOMER ACKNOWLEDGES THAT THE FEES PAYABLE FOR THE SERVICES REFLECT THE FACT THAT GORGIAS IS NOT RESPONSIBLE FOR THE ACTS AND OMISSIONS OF THE THIRD-PARTY SERVICE PROVIDERS.
10. Limitations of Liability
10.1 Damages Cap
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, GORGIAS’S TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAYABLE BY CUSTOMER TO GORGIAS UNDER THIS AGREEMENT OVER THE 12 MONTHS PRIOR TO WHEN THE LAST LIABILITY AROSE.
10.2 Disclaimer of Indirect Damages
IN NO EVENT WILL GORGIAS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING LOSS OF DATA OR PROFITS) ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.
10.3 Exceptions
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE LIMITATIONS IN SECTIONS 10.1 AND 10.2 ABOVE WILL NOT APPLY TO LIABILITY ARISING FROM (A) GORGIAS’S WILLFUL MISCONDUCT; (B) GORGIAS’S INDEMNIFICATION OBLIGATIONS HEREUNDER; OR (C) AN UNAUTHORIZED USE OR DISCLOSURE OF CUSTOMER DATA IN BREACH OF THIS AGREEMENT, SUPPLEMENTAL TERMS, OR THE DATA PROCESSING AGREEMENT, IN WHICH CASE OF CLAUSE (C) GORGIAS’S LIABILITY TO CUSTOMER WILL BE TWICE THE AMOUNT SET OUT IN SECTION 10.1 OF THIS AGREEMENT NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 10.1.
10.4 Basis of the Bargain
THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY AND EXCLUSION OF DAMAGES SET FORTH IN THIS SECTION 10 ARE A FUNDAMENTAL BASIS OF THE BARGAIN, THAT GORGIAS HAS SET ITS FEES IN ABSOLUTE RELIANCE ON THESE LIMITS AND THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THEY WILL APPLY NOTWITHSTANDING ANY REMEDY FAILING ITS ESSENTIAL PURPOSE.
10.5 Jurisdictional Limitations
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES (FOR EXAMPLE, INCIDENTAL OR CONSEQUENTIAL DAMAGES). IN A JURISDICTION WHERE SOME OF THE ABOVE LIMITATIONS DO NOT APPLY, GORGIAS’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY THE LAWS OF SUCH JURISDICTION.
11. Indemnification
11.1 Gorgias Indemnification
Gorgias will defend and indemnify Customer from and against any claims, actions, proceedings, demands, lawsuits, damages, liabilities, and expenses (including reasonable attorneys’ fees and court costs) (“Claims”) brought by, or due to, a third party to the extent it is proven in a final, non-appealable adjudication that any part of the Services infringes, misappropriates, or otherwise violates such third party’s intellectual property or proprietary right when used as authorized in this Agreement (collectively, “Infringement”).
11.2 Customer Indemnification
Customer will indemnify, defend, and hold Gorgias and Gorgias’s Affiliates and subcontractors, and each of its and their officers, directors, employees, consultants, and subcontractors (singularly or collectively, “Gorgias Parties”) harmless against any Claims brought against, or suffered or incurred by, the Gorgias Parties arising out of or in connection with any: (a) use of the Services (and not arising solely from the Services themselves), including use of Output, by Customer, Agents, or End-Users in breach of this Agreement; (b) negligence, fraud, dishonesty, or reckless or willful misconduct of Customer, any Agent, any End-User, and/or any of representatives of any of the foregoing; (c) failure or alleged failure by Customer to comply with any obligation, warranty, or representation under this Agreement; (d) breach of applicable law by Customer, any Agent, and/or any End-User; and (e) a third party’s allegation that Customer’s performance under this Agreement or any materials provided, directly or indirectly, by Customer (including, without limitation, Customer Data) to Gorgias infringes, misappropriates, or violates the rights of a third party, including any rights of privacy, confidentiality, or intellectual property of that third party.
11.3 Indemnification Process
The party to be indemnified (the “Indemnitee”) will: (a) provide the indemnifying party (the “Indemnitor”) notice of the Claim as soon as practical; provided, however, that the failure to give such notice shall relieve the Indemnitor of its obligations under Section 11.1 or Section 11.2 (as applicable) solely to the extent the Indemnitor is prejudiced thereby; (b) give the Indemnitor the option to conduct the defense of the Claim, including negotiations for settlement or compromise before the institution of legal proceedings; provided, however, that no Claims may be settled, compromised, or otherwise disposed of by the Indemnitor without the express prior written consent of the Indemnitee; and (c) provide the Indemnitor with reasonable assistance in conducting the defense of the Claim.
11.4 Exclusions
Gorgias’s obligations in Section 11.1 above will not apply to any Claim to the extent arising from or relating to: (a) use of the Services other than strictly in accordance with the Documentation, Gorgias’s instructions, and this Agreement; (b) any modification, alteration, or conversion of the Services not created or approved in writing by Gorgias; (c) any combination of the Services with any computer, hardware, software, or service not provided by Gorgias; (d) Gorgias’s compliance with specifications or other requirements of Customer; or (e) any Customer Data used by Gorgias in accordance with this Agreement.
11.5 Exclusive Remedy for Claims of Infringement
If a Service is or may be subject to a claim of Infringement, Gorgias may, at its cost and sole discretion: (a) obtain the right for Customer to continue using the Service as contemplated herein; (b) replace or modify the Service so that it becomes non-Infringing without substantially compromising its principal functions; or (c) to the extent the foregoing are not commercially reasonable, stop providing the Service and return to Customer any pre-paid fees for the Service associated with the Subscription Term(s) during which the subscribed Services could not be used due to the Infringement (if any). Gorgias’s obligations in Section 11.1 and in this Section 11.5 will be Gorgias’s sole obligations, and Customer’s sole remedies, in the event of any claim of Infringement.
12. Confidentiality
The Services may include non-public, proprietary, or confidential information of Customer, Gorgias and/or of third parties (“Confidential Information”). Confidential Information includes any and all information that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure, including non-public business, product, technology, and marketing information. Each Party shall, and (if applicable) shall ensure that all Agents and End-Users will: (a) protect and safeguard the confidentiality of all Confidential Information using at least the same degree of care as it uses to protect its own highly sensitive confidential information, but in no event less than a reasonable degree of care; (b) not use any Confidential Information except as necessary to exercise its rights or fulfill its obligations under this Agreement; and (c) not disclose any Confidential Information to any person or entity, except to its service providers, financial or legal advisors, or the applicable End-User (as the case may be) who (i) have a need to know the Confidential Information and (ii) are bound by written non-use and non-disclosure obligations at least as restrictive as those set forth in this Section.Notwithstanding the foregoing, a Party may disclose Confidential Information if required by law, regulation, or a valid court order, provided that (where legally permitted) the disclosing Party gives the other Party prompt written notice to allow it to seek a protective order or other appropriate remedy.
13. Miscellaneous
13.1 Compliance with Laws
Each party will comply with all laws, rules, regulations, and ordinances applicable to its activities hereunder. The Services and other Gorgias Technology may be subject to export controls and economic sanctions laws and regulations of the United States and other jurisdictions. Customer agrees to comply with all such laws and regulations as they relate to the access to and use of the Services and other Gorgias Technology. Each party represents that none of it, its parents, or its controlling shareholders is named on any U.S. government or other applicable restricted-party list. Customer will not, and will not permit any Agent or End-User to: (a) access or use the Services in a U.S.-embargoed or U.S.-sanctioned country or region (e.g., Cuba, Iran, North Korea, Syria, Crimea, or any other country or region embargoed or sanctioned during the Term); (b) access or use the Services if Customer, the Agent, or the End-User is named on any U.S. government or other applicable restricted-party list; (c) submit any information to the Services that is controlled under the U.S. International Traffic in Arms Regulations or other similar laws; or (d) access or use the Services for any purpose prohibited by the United States or applicable international import and export laws and regulations.
13.2 Assignment
Except as permitted hereunder, Customer may not assign this Agreement, or assign any of its rights or delegate any of its obligations under this Agreement, without the prior written consent of Gorgias. For the avoidance of doubt, and notwithstanding anything to the contrary in this Agreement, the parties acknowledge and agree that (a) Gorgias may assign this Agreement and its rights hereunder, in whole or in part, to any third party, and (b) Gorgias may assign, transfer, pledge, and deliver the same to its lenders or other creditors, including the right to create, attach, and perfect a security interest in this Agreement and Gorgias’s rights to payment hereunder. Any purported assignment or delegation in violation of this paragraph is null and void. This Agreement will be binding on each party’s successors and permitted assigns.
13.3 Entire Agreement
This Agreement, together with the DPA and any Supplemental Terms and/or applicable service order(s) or purchase order(s), contains the complete understanding and agreement of the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto. Except as expressly stated herein, there are no other agreements, representations, warranties, or commitments that may be relied upon by either party with respect to the subject matter hereof. There are no oral promises, conditions, representations, understandings, interpretations, or terms of any kind between the parties, except as may otherwise be expressly provided herein.
13.4 Amendment
We may amend this Agreement from time to time, in which case the amended Agreement will supersede prior versions. When we change this Agreement in a material manner, we will update the ‘last revised on’ date at the top of this page and notify Customer not less than 30 days prior to the effective date of any such material amendment. Continued access to and/or use of the Services following the effective date of any amendment to this Agreement may be relied upon by Gorgias as Customer’s consent to any such amendment.
13.5 Notice
Gorgias may give any notices issued in connection with this Agreement by email to Customer at the email address given by Customer when creating its User Account, and such notices will be effective upon confirmation of transmission to Customer.
13.6 Force Majeure
Gorgias will not be liable or responsible to Customer or to any third party, nor be considered to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any provision of this Agreement to the extent such failure or delay is caused by or results from any act, circumstance, or other cause beyond the reasonable control of Gorgias and which could not have been prevented by reasonable diligence on the part of Gorgias, including acts of God, flood, fire, earthquake, explosion, governmental actions, war, comprehensive cybersecurity attacks, cyber terrorism, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable technology or components, telecommunication breakdown, or power outage (each, a “Force Majeure Event”), provided that Gorgias promptly provides written notice to Customer of such Force Majeure Event preventing or delaying performance and resumes its performance as soon as practicable.
13.7 Publicity
Customer hereby grants Gorgias and its Affiliates a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable, and perpetual license to use and display Customer’s name, trade name(s), and logo(s) on client lists published on Gorgias’s website and in marketing materials (whether physical or digital). Gorgias will stop exercising the foregoing license promptly upon receipt of Customer’s request sent to legal@gorgias.com. Gorgias may announce the relationship hereunder in a press release, provided that Gorgias obtains Customer’s prior approval of the wording of the release (such approval not to be unreasonably withheld).
13.8 Choice of Law
This Agreement is and will be governed by and construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of Delaware, without giving effect to any conflicts of laws provision thereof or of any other jurisdiction that would produce a contrary result.
13.9 Disputes; Arbitration
(a) Binding Arbitration
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between Customer and Gorgias or its employees, agents, successors, or assigns, will be settled exclusively through binding and confidential arbitration. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, “Rules and Procedures”). For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, Customer may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
(b) Collective Claims Prohibited
ANY CLAIMS BROUGHT BY A PARTY MUST BE BROUGHT IN SUCH PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE OR COLLECTIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS OR COLLECTIVE PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF.
(c) Costs and Relief
Gorgias reserves the right, in its sole and exclusive discretion, to assume responsibility for all of the costs of the arbitration. The arbitrator will honor claims of privilege and privacy recognized at law, the arbitration proceedings will be confidential, and neither Customer nor Gorgias may disclose the existence, content, or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. The arbitrator may award any individual relief or individual remedies that are permitted by applicable law, and the losing party will pay the prevailing party’s reasonable attorneys’ fees and expenses to the extent directed by the arbitrator. Notwithstanding the foregoing: (i) either Customer or Gorgias may bring an individual action in small claims court to the extent eligible, and (ii) either party may seek emergency equitable relief before the state or federal courts located in the State of Delaware in order to maintain the status quo pending arbitration and/or as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, confidential information (including, in the case of Gorgias, Confidential Information), or intellectual property rights, and each party hereby agrees to submit to the exclusive personal jurisdiction of the courts located within the State of Delaware for such purposes. A request for interim measures will not be deemed a waiver of the right to arbitrate.
13.10 Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise or employment relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
13.11 Waiver
No waiver by either party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such party. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
13.12 Severability
If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction, and the remaining provisions of this Agreement will remain in effect.
13.13 Headings; Interpretation
Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. Unless the intent is expressly stated otherwise in specific instances, use of the words “include,” “includes,” or “including” in this Agreement will not be limiting, and “or” will not be exclusive.
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