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This Business Process Outsourcing Agreement (“Agreement”), effective as of the date of the later signature hereto (“Effective Date”), is entered into by and between Gorgias Inc, a Delaware corporation (“Gorgias”), and Customer (“Customer”).
This Agreement is incorporated into and governed by the terms and conditions of Gorgias’ Master Services Agreement (“MSA”). In the event of any conflict between this Agreement and the MSA, the terms of the MSA shall prevail unless expressly stated otherwise herein.
1.1 “Agent” means an individual recruited and/or trained by or on behalf of Gorgias to, among other things, interact with Customer and/or assist with Customer’s inquiries and/or requests.
1.2 “Applicable Law” means all applicable local, state, national, and international laws, rules, and regulations.
1.3 “Customer Materials” means all materials and information, including documents, data, specifications, software, content, and technology, in any form or medium, that are downloaded by or on behalf of Gorgias in connection with its provision of the Services, or otherwise received by or on behalf of Gorgias, directly or indirectly, from Customer (including from a Permitted User (as defined below) or via a third-party provider on Customer’s behalf) in connection with this Agreement, in each case excluding any and all Gorgias Materials.
1.4 “Customer Systems” means any and all Customer and third-party: systems, networks, databases, computers, service accounts, and/or telecommunications or other information systems to which Gorgias may require access in connection with the provision of the Services.
1.5 “Gorgias Materials” means all materials and information, including documents, data, specifications, software, software tools, content, technology, know-how, ideas, and methodologies, that Gorgias owns or licenses from a third party.
1.6 “Documentation” means any and all manuals, instructions, specifications, and other documents and materials that Gorgias provides or makes available to Customer in any form or medium in connection with the provision of the Services.
1.7 “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, trademark, trade dress, and service mark rights, goodwill, trade secret rights, and any and all other intellectual property rights and proprietary rights as may now exist or hereafter come into existence, and all applications therefor and registrations, renewals, and extensions thereof, under Applicable Law.
1.8 “SaaS Offering” means the online, software-as-a-service services made available on a remote-basis by Gorgias.
1.9 “Software” means any and all software programs, computer programming code, and/or user interfaces that Gorgias may create in connection with the Services or provide to Customer in downloadable form, including any and all downloadable software, agents, SDKs, and/or APIs.
1.10 “Usage Data” means diagnostic, technical, usage, and/or related information, including information about Customer Systems, that is collected or compiled by or on behalf of Gorgias with respect to Customer’s use of the Services and/or the SaaS Offering, in each case excluding the Customer Materials.
1.11 “Work Product” means the Documentation, the Software, and all inventions (whether or not patentable), know-how, designs, information, developments, and techniques, as well as customizations, enhancements, improvements, derivatives, and modifications to and of the Customer Materials, in any form or media, that are conceived, discovered, or developed by or on behalf of Gorgias, solely or in collaboration with others, in connection with performing the Services, whether or not provided or otherwise made available to Customer. For clarity, Work Product does not include the Customer Materials.
2.1 Statements of Work. This Agreement will be implemented through one (1) or more written statements of work, proposals, and/or other similar documents that reference this Agreement and are signed by authorized representatives of each of Gorgias and Customer (each such document, an “SOW”), and the terms and conditions set forth herein will govern all SOWs. The first SOW is attached hereto as Exhibit A. Gorgias will use commercially reasonable efforts to provide to Customer the services identified in the SOW(s) (collectively, “Services”). In the event of any conflict between the terms of this Agreement and the terms of an SOW, this Agreement will govern unless and to the extent the SOW expressly states otherwise.
2.2 Gorgias’s Responsibilities. Gorgias will perform the Services with skills, care, and diligence consistent with generally recognized industry standards for similar services.
2.3 Subcontractors. Gorgias may utilize independent contractors and/or third-party service providers (collectively, “Subcontractors”) to perform all or part of the Services, provided that Gorgias will remain solely responsible for the performance of all of the Services that are subcontracted.
3.1 Customer Resources and Cooperation. Customer will (a) perform all of its obligations set forth in the applicable SOW or reasonably requested by Gorgias from time to time, (b) provide Customer Materials and all such other resources as may be specified in the applicable SOW or reasonably requested by Gorgias from time to time, (c) provide Gorgias’s personnel with such access to the Customer Systems as is necessary for Gorgias to perform its obligations hereunder, (d) ensure the Customer Systems are set up and in working order to allow Gorgias to perform the Services in accordance with the applicable SOW, (e) provide or obtain all consents, approvals, exception notices, and other communications that may be required for Gorgias to perform the Services, and (f) provide all cooperation and assistance Gorgias reasonably requests to enable Gorgias to exercise its rights and perform its obligations under this Agreement.
3.2 Effect of Customer Failure or Delay. Gorgias is not responsible or liable for any delay in, or failure of, its performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of Customer’s obligations under this Agreement. In the event of any such delay or failure by Customer, Gorgias may, by written notice to Customer, extend all or any due dates set forth in the applicable SOW as Gorgias deems reasonably necessary. The foregoing is in addition to, and not in lieu of, all other remedies Gorgias may have for any such delay or failure by Customer.
4.1 Fees. Customer will pay Gorgias the fees set forth in the SOW(s) (“Fees”).
4.2 Reimbursable Expenses. Customer will reimburse Gorgias for all out-of-pocket expenses incurred by Gorgias in connection with performing the Services that are listed in the applicable SOW(s) or approved by a representative of Customer (“Reimbursable Expenses”).
4.3 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any and all other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder (other than any taxes imposed on Gorgias's income, “Taxes”). If Gorgias has the legal obligation to pay or collect any Taxes, Gorgias will invoice Customer the appropriate amount, and Customer will pay Gorgias such invoiced amount, unless Customer provides Gorgias with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.4 Payment. Customer will pay all Fees and Reimbursable Expenses within fifteen (15) days of the date of the invoice therefor. Customer will make all payments hereunder in US dollars. Customer will make payments to the address or account specified in the applicable SOW or to such other address or account as may be specified by Gorgias in writing from time to time.
4.5 Late Payment. If Customer fails to make any payment when due, then, in addition to all other remedies that may be available to Gorgias:
(a) Gorgias may charge interest on the past due amount at the rate of one and one-half percent (1.5%) per month, calculated daily and compounded monthly, or the maximum allowable under Applicable Law, whichever is less.
(b) Customer will reimburse Gorgias for all reasonable costs incurred by Gorgias in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and
(c) if such failure continues for ten (10) or more days following written notice thereof, Gorgias may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or to any third party by reason of such suspension.
5.1 Ownership
5.1.1 Gorgias Materials, SaaS Offering, and Work Product. As between the parties, Gorgias is and will remain the sole owner of the Gorgias Materials, the SaaS Offering, the Work Product, and all related and underlying technology. Gorgias reserves all title, rights, and interest in and to the Gorgias Materials, the SaaS Offering, and the Work Product that are not expressly granted to Customer hereunder. Gorgias does not grant any implied licenses under this Agreement, under any theory. The parties do not intend to jointly develop any Gorgias Materials or Work Product in connection with this Agreement or any SOW. If any ownership rights in or to the Gorgias Materials, the SaaS Offering, the Work Product, or any related or underlying technology vest in Customer or in any Permitted User, Customer will, and hereby does, on behalf of itself and each applicable Permitted User, assign to Gorgias all of Customer’s and each applicable Permitted User’s rights, title, and interest in and to same.
5.1.2 Usage Data. As between the parties, Gorgias is and will remain the sole owner of the Usage Data. Accordingly, without limitation to the generality of the foregoing, Gorgias may use, maintain, and/or process the Usage Data or any portion thereof for any lawful purpose, including, without limitation: (a) to perform its obligations hereunder, including the provision of the Services; (b) to improve its products and services (including the SaaS Offering) and to develop new products, services, and/or features, including, without limitation, by building and training models and/or algorithms; (c) to monitor Customer’s usage of the Services and of the SaaS Offering; (d) for research and analytics, including, without limitation, data analysis, identifying usage trends, and/or customer research; and (e) solely in de-identified or aggregated form, to share analytics and other derived Usage Data with third parties (the rights listed in subsections (a) through (e) (inclusive) of this Section, the “Data Rights”). If any ownership rights in or to the Usage Data vest in Customer, Customer will, and hereby does, assign to Gorgias all of Customer’s rights, title, and interest in and to same.
5.1.3 Customer Materials. As between the parties, Customer is and will remain the sole owner of the Customer Materials. Customer is solely responsible for the accuracy, content, and legality of all Customer Materials.
5.1.4 Feedback. To the extent Customer or any Permitted User provides Gorgias with any suggestions, recommendations, or other feedback relating to the Services, the SaaS Offering, or any other Gorgias products or services (collectively, "Feedback"), Customer, on behalf of itself and each applicable Permitted User, hereby assigns to Gorgias all rights, title, and interest in and to the Feedback. Accordingly, Gorgias is free to use the Feedback and any ideas, know-how, concepts, techniques, and/or other intellectual property contained in the Feedback, without providing any attribution or compensation to Customer or to any third party (including any Permitted User), for any purpose whatsoever, although Gorgias is not required to use any Feedback. Gorgias’s acceptance of the submission of Feedback does not constitute a waiver of any of Gorgias’s rights to use similar or related ideas previously known to Gorgias, or developed by its employees, consultants, or Subcontractors, or obtained from other sources.
5.2 Grants of Rights
5.2.1 Customer Materials. Customer hereby grants to Gorgias a non-exclusive, transferable, irrevocable, perpetual, royalty-free, fully paid-up, and worldwide right and license, with the right to grant and authorize sublicenses, to use, copy store, transmit, reproduce, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit the Customer Materials to exercise the Data Rights.
5.2.2 SaaS Offering. Customer may access and use the SaaS Offering on a non-exclusive and non-transferrable basis, solely in accordance with any applicable Documentation, only to the extent necessary to receive the Services in accordance with this Agreement (including the applicable SOW(s)) during the Term (as defined below) (such access and use, as limited by the foregoing restrictions, the “Permitted Use”). Customer may permit its employees and consultants (“Permitted Users”) to access and use the SaaS Offering on Customer’s behalf, provided that such access and use does not exceed the Permitted Use and that Customer remains solely liable for the acts and omissions of each Permitted User as if they were Customer’s own acts and omissions. Without limiting the generality of the foregoing, Customer will be responsible for any and all actions taken using Customer’s SaaS Offering accounts and/or passwords. Customer will promptly notify Gorgias: (a) if Customer has reason to suspect that any user ID or password applicable to the Services and/or SaaS Offering has been lost, stolen, compromised, or misused, and (b) of any unauthorized access to or use of the SaaS Offering.
5.2.3 Work Product. Subject to and conditioned upon Customer’s compliance with the terms and conditions of this Agreement, Gorgias hereby grants to Customer a non-exclusive, non-transferable (except under Section 11.2), non-sublicensable, and royalty-free license to use any Work Product that Gorgias may deliver or otherwise make available to Customer, solely in accordance with any applicable Documentation, only to the extent necessary to receive the Services in accordance with this Agreement (including the applicable SOW(s)) during the Term.
5.2.4 Restrictions. Other than as may be expressly stated in this Agreement or the applicable SOW, Customer will not, and will not permit any third party (including any Permitted User) to: (a) sell, rent, lease, or use the SaaS Offering or the Work Product (or any component or part of either of the foregoing) for time sharing purposes; (b) use the SaaS Offering or the Work Product (or any component or part of either of the foregoing) to help develop, or help provide to any third party, any product or service similar to or competitive with any product or service of Gorgias; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code of the SaaS Offering or the Work Product (or any component or part of either of the foregoing); (d) use, copy, modify, or create derivative works of the SaaS Offering or the Work Product (or any component or part of either of the foregoing); (e) remove or obscure any copyright or proprietary or other notice contained in or on the SaaS Offering or the Work Product (or any component or part of either of the foregoing); (f) propagate any virus, Trojan horse, or other malware or programming routine intended to damage any Gorgias system or Gorgias Materials; (g) access or use the SaaS Offering or the Work Product (or any component or part of either of the foregoing) in a manner intended to circumvent or exceed service account limitations or requirements imposed on Customer; (h) use the SaaS Offering or the Work Product (or any component or part of either of the foregoing) in a manner that violates any Applicable Law or Customer’s or a third party’s Intellectual Property Rights; or (i) use any tools in order to probe, scan, or attempt to penetrate or benchmark the SaaS Offering or the Work Product (or any component or part of either of the foregoing).
6.1 Confidential Information. Subject to Section 6.2, “Confidential Information” means information that is disclosed by or on behalf of either party (as the “Disclosing Party”) to the other party (as the “Receiving Party”) hereunder that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, including information (tangible or intangible) regarding the Disclosing Party’s technology, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information. Without limiting the generality of the foregoing, the terms of this Agreement, the Gorgias Materials, and any user ID and password information applicable to the Services and/or SaaS Offering are the Confidential Information of Gorgias.
6.2 Exclusions. Confidential Information does not include information that (a) is rightfully in the Receiving Party’s possession at the time of disclosure without an obligation of confidentiality, (b) is or becomes generally available to the public other than as a result of an improper disclosure by the Receiving Party, (c) is rightfully obtained by the Receiving Party from a third party without restriction on its use or disclosure, or (d) is independently developed by the Receiving Party without use of the Confidential Information. The obligations set forth in Section 6.3 will not apply to disclosures of Confidential Information required by Applicable Law or an order or subpoena of any administrative agency or court of competent jurisdiction, provided that, to the extent not prohibited by such requirement, the Receiving Party will promptly notify the Disclosing Party of such requirement so as to provide the Disclosing Party an opportunity to seek a protective order or other confidential treatment of the Confidential Information required to be disclosed.
6.3 Protection of Confidential Information. The Receiving Party will: (a) hold in confidence the Confidential Information of the Disclosing Party, (b) not copy, distribute, transmit, share, or otherwise use or exploit any Confidential Information of the Disclosing Party, except to the extent necessary to perform the Receiving Party’s obligations, and exercise the Receiving Party’s rights, under this Agreement, and (c) not disclose any Confidential Information of the Disclosing Party to any third party other than to officers, employees, consultants, agents, and/or professional advisers (including lawyers) of the Receiving Party who have a need to know such Confidential Information and who are bound by contractual obligations of non-use and confidentiality substantially equivalent to those of the Receiving Party hereunder, and, in the case of Gorgias, to Subcontractors. The Receiving Party will safeguard the confidentiality of the Confidential Information of the Disclosing Party using at least the same degree of care that it uses in protecting its own confidential and proprietary information, but no less than a reasonable degree of care.
7.1 Term. This Agreement will commence on the Effective Date and, unless earlier terminated as provided herein, will continue in effect until the earlier of: (a) the expiration or termination of the Master Subscription Agreement in effect between the parties (the “MSA”) and (b) the expiration or termination of the last SOW to expire or terminate (“Term”).
7.2 Termination for Breach or Insolvency. Either party may terminate this Agreement (and all SOWs) or any particular SOW: (a) effective immediately upon written notice if (i) the other party has breached this Agreement (or the particular SOW) and such breach is not curable, or (ii) the other party has breached this Agreement (or the particular SOW) and such breach is curable, but the other party has not cured such breach within thirty (30) days of the first party’s written notice of such breach; provided, however, that such cure period will be ten (10) days if Gorgias is seeking to terminate this Agreement (or the particular SOW) based on Customer’s failure to pay Fees; or (b) effective upon thirty (30) days’ written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy, or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition, or comparable proceeding, or such a proceeding is instituted against the other party and is not dismissed within ninety (90) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates, or otherwise fails to operate in the ordinary course.
7.3 Effect of Expiration or Termination. Any termination of this Agreement will automatically terminate any and all outstanding SOWs, but termination of any particular SOW will not terminate this Agreement. Upon any expiration or termination of this Agreement: (a) Gorgias will have no obligation to perform any Services; (b) Customer will (i) return to Gorgias all Gorgias Materials and any and all other documents and tangible materials (and any and all copies thereof) containing, reflecting, incorporating, or based on Gorgias’s Confidential Information, and (ii) permanently erase Gorgias’s Confidential Information from its computer systems.
7.4 Surviving Terms. The provisions of this Agreement that by their terms are perpetual or are otherwise intended to survive the expiration or termination of this Agreement, including Sections 1.0, 3.2, 4.0, 5.1, 5.2.1, 6.0, 7.3, 7.4, and 8.0 through 11.0 (inclusive) will survive the expiration or termination of this Agreement.
8.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party, and (c) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms, subject to bankruptcy, insolvency, and other laws affecting creditors’ rights generally.
8.2 Gorgias Warranty. Gorgias warrants that it will provide the Services in substantial conformity with any applicable Documentation and the applicable SOW. Gorgias's sole liability (and Customer's sole and exclusive remedy) for any breach of this warranty will be to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity, or, if Gorgias determines, in its sole discretion, such remedy to be impracticable, to allow Customer to terminate the applicable SOW and receive, as its sole and exclusive remedy and Gorgias's entire liability, a refund of any Fees Customer has pre-paid for use of any portion of the Services it has not received as of the date of the warranty claim. The warranty set forth in this Section will not apply: (a) unless Customer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared, (b) if the error was caused by misuse, unauthorized modifications, or third-party hardware, software, or services, or (c) to any Services provided on a no-charge or evaluation basis.
8.3 Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Gorgias that: (a) Customer owns or otherwise has and will have all necessary rights and consents in and relating to the Customer Materials to grant the rights granted under this Agreement therein and thereto, and so that they do not and will not, and so that Gorgias’s and the Subcontractors’ use thereof in performing Gorgias’s obligations, and exercising Gorgias’s rights, hereunder will not, infringe, misappropriate, or otherwise violate any Intellectual Property Rights of any third party or violate any Applicable Law; (b) Customer has, and will maintain during the Term, all rights required for Gorgias to be able to perform the Services (including, without limitation, by accessing all Customer Systems and any other data and information pertinent to Customer from third parties); and (c) Customer will not circumvent, avoid, bypass, or obviate, directly or indirectly, the intent of this Agreement, including by working, or allowing any Permitted User to work, directly with any Agent with the effect of avoiding payment of Fees, or soliciting or accepting any opportunity to work directly with any Agent during the Term and for thirty-six (36) months following its expiration or termination without Gorgias’s prior written consent.
8.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES, THE GORGIAS MATERIALS, THE SAAS OFFERING, THE WORK PRODUCT, AND ANY PRODUCTS OR RESULTS OF THE USE THEREOF ARE PROVIDED "AS IS" AND “AS AVAILABLE,” AND GORGIAS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER WITH RESPECT TO SAME. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, (A) GORGIAS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, AND (B) GORGIAS MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, THE GORGIAS MATERIALS, THE SAAS OFFERING, THE WORK PRODUCT, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF WILL MEET CUSTOMER’S OR ANY THIRD PARTY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF VIRUSES OR HARMFUL CODE, OR ERROR FREE.
9.1 Customer’s Indemnification. Customer will indemnify, defend, and hold harmless Gorgias and its Subcontractors and each of its and their respective officers, directors, employees, consultants, contractors, agents, successors, and assigns (collectively, including Gorgias, "Gorgias Parties") from and against any and all losses, liabilities, damages, demands, claims (including taxes), costs, payments, and expenses (including any and all reasonable attorneys’ fees) (collectively, “Losses”) as incurred, arising out of or in connection with any claim, action, or proceeding (each, a “Claim”) by a third party against any of the Gorgias Parties arising out of or relating to: (a) Customer’s breach or alleged breach of Section 8.0; or (b) Customer’s or its representatives’ (including the Permitted Users): (i) access to or use of the SaaS Offering and/or the Services in a manner inconsistent with any Documentation or Applicable Law, or (ii) gross negligence or willful misconduct.
9.2 Gorgias’s Indemnification. Gorgias will indemnify, defend, and hold harmless Customer from and against any and all Losses arising out of or in connection with any Claim by a third party against Customer arising out of or relating to: (a) Gorgias’s breach or alleged breach of Section 8.0; or (b) Customer’s or the Subcontractors’ gross negligence or willful misconduct.
9.3 Indemnification Procedure. The party seeking indemnification (the “Indemnified Party,” which, in the case of Gorgias, will include all Gorgias Parties) will: (a) provide the party from which indemnification is sought (the “Indemnifying Party”) with prompt written notice of any Claim made against it (provided that the failure to give such notice will not relieve the Indemnifying Party of any of its obligations under Section 9.1 or Section 9.2 (as applicable), except to the extent the Indemnifying Party is materially prejudiced thereby); (b) allow the Indemnifying Party control of the defense of any such Claim (so long as any settlement: (i) does not, without the Indemnified Party’s prior written approval, (x) involve the admission of any wrongdoing by the Indemnified Party, (y) restrict the Indemnified Party’s future actions, or (z) require the Indemnified Party to take any action, including the payment of money; and (ii) includes a full release of the Indemnified Party); and (c) give the Indemnifying Party reasonable assistance, at the Indemnifying Party’s expense, requested by the Indemnifying Party in writing in connection therewith. The Indemnified Party will have the right to participate in the defense of any Claim at its own expense, and such participation will not relieve the Indemnifying Party of any of its obligations under Section 9.1 or Section 9.2 (as applicable).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO (a) A PARTY’S WILLFUL MISCONDUCT; (b) EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 6.0; (c) CUSTOMER’S BREACH OF SECTION 5.3; (d) OBLIGATIONS UNDER SECTION 9.1 OR SECTION 9.2 (AS APPLICABLE); AND (e) ANY AMOUNTS OWED OR PAYABLE TO GORGIAS HEREUNDER: (i) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, PROFITS, OR DATA), WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (ii) IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF THE GORGIAS PARTIES UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), AND STRICT LIABILITY, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES. THE FOREGOING LIMITATIONS APPLY NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GORGIAS WILL NOT BE LIABLE TO CUSTOMER FOR ANY COST OF PURCHASING SUBSTITUTE GOODS OR SERVICES (I.E., COST OF COVER), REGARDLESS OF HOW SUCH DAMAGES ARE CHARACTERIZED.
11.1 Publicity. Gorgias will have the right to use Customer’s name and logo on client lists published on Gorgias’s website and in marketing materials, provided that such use is previewed and pre-approved by Customer. 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 unreasonably withheld, conditioned, or denied).
11.2 Assignment. 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 Section is null and void. This Agreement will be binding on each party’s successors and permitted assigns.
11.3 Force Majeure. In no event will Gorgias be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in fulfilling or performing any obligation hereunder 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, 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 Gorgias’s workforce), restraints or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable technology or components, telecommunication breakdown, or power outage.
11.4 Third-Party Beneficiaries. Except for the Gorgias Parties, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any third party any legal or equitable right, benefit, or remedy of any nature whatsoever.
11.5 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 6.0 or, in the case of Customer, Section 5.3 or Section 8.3, may cause the other party irreparable harm for which monetary damages would not be an adequate remedy, and each party further agrees that, in the event of such breach or threatened breach, notwithstanding anything to the contrary in this Agreement, the other party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and/or any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
11.6 Governing Law. This Agreement will be governed by and construed in accordance with applicable federal law and the laws of the State of Delaware, without regard to the conflicts of law principles thereof.
11.7 Disputes; Arbitration
11.7.1 Binding Arbitration. Subject to Section 11.5, any and all controversies, disputes, demands, counts, claims, and/or causes of action (including the interpretation and scope of this Section 11.7 and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between Customer and Gorgias will be settled exclusively through binding and confidential arbitration. Notwithstanding anything to the contrary in Section 11.6, such arbitration will be subject to the Federal Arbitration Act and not to 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.
11.7.2 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.
1.7.3 Costs and Relief. Gorgias reserves the right, at is sole option and in its sole discretion, to assume responsibility for all of the costs of the arbitration. The arbitrator will honor claims of privilege and privacy recognized under Applicable 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 Applicable 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 anything to the contrary in this Agreement: (a) either party may bring an individual action in a small claims court to the extent eligible, and (b) 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 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.
11.8 Notices. All notices under this Agreement will be in writing, in English, and delivered to the recipient party at its address listed on the signature page hereto or at such other address designated in accordance with this Section. Notices will be deemed to have been duly given when received, if personally delivered; after twelve (12) hours, if sent via electronic mail; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
11.9 Amendment; Waiver. No amendment to or modification of this Agreement will be effective unless it is in writing and signed by an authorized representative of each party. No waiver by either party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by an authorized representative of the party so waiving. Without limiting the generality of the foregoing: (a) no failure or delay by either party in exercising any right, power, or remedy under this Agreement will operate as a waiver of any such right, power, or remedy, and (b) any waiver by either party of any provision of this Agreement will not be construed as a waiver of any other provision of this Agreement, nor will such waiver operate or be construed as a waiver of such provision respecting any future event or circumstance.
11.10 Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable, and so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
11.11 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, and both of which, when taken together, will constitute one and the same instrument. Delivery by electronic mail will be as effective as delivery of an original signed counterpart, and the parties agree that electronic signatures are effective and binding.
11.12 Entire Agreement. This Agreement (including all SOWs and all attached exhibits) and the online Master Subscription Agreement (MSA) constitute the complete agreement and understanding between the parties, and supersede all prior and/or contemporaneous agreements and understandings between the parties, with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the Effective Date.