Last revised on
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 another legal entity and its Affiliates (as defined below) on whose behalf you act as an authorized agent (in either case, “Customer”), when using or subscribing to use our proprietary support response systems, mobile applications, tools, application interface protocols, content, and related technical interfaces (collectively the “Services” and individually a “Service”) under the subscription plan selected by Customer described at https://www.gorgias.com/pricing (the “Subscription Plan”).
THIS AGREEMENT IS A BINDING CONTRACT AND GOVERNS THE USE OF AND ACCESS TO THE SERVICES BY CUSTOMER, CUSTOMER’S AGENTS AND END-USERS. CUSTOMER CONSENTS TO CONTRACT WITH GORGIAS ELECTRONICALLY USING THIS ELECTRONIC AGREEMENT. BY USING THE SERVICES, CLICKING ON “CREATE” WHEN SUBSCRIBING TO THE SERVICES, OR AUTHORIZING OR PERMITTING ANY OF CUSTOMER’S AGENTS (AS DEFINED BELOW) OR END-USERS (AS DEFINED BELOW) TO ACCESS OR USE OUR SERVICE, CUSTOMER IS LEGALLY BOUND TO THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT THIS ELECTRONIC AGREEMENT WILL HAVE THE SAME LEGAL FORCE AND EFFECT AS IF IT WAS IN PAPER FORM WITH YOUR WRITTEN SIGNATURE.
When Customer enters into this Agreement on behalf of a third party, such as a company, organization, employer, or another legal entity, Customer is agreeing to this Agreement for such entity and representing to Gorgias that Customer has the authority to bind such entity and its Affiliates to this Agreement. If Customer does not have such authority, or if Customer does not agree with the terms and conditions in this Agreement, Customer must not use or authorize any use of the Services. For purposes of this Agreement, the term “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.
This Agreement (as amended) is effective on the earlier of the date this Agreement (through any provision, subscription, registration or other order process (e.g., service or purchase order) is signed (including by electronic means) or when the Customer permits any End-User or Agent to access the Service as permitted hereunder. For purposes of this Agreement, “End-Users” means individual customers or consumers of Customer that Customer permits to access the Services. Further, the term “Agent” means any individual or entity that is an account administrator, employees, consultants, service provider, contractors, and/or agents of Customer or its Affiliates that is granted access to the Services by Customer or its Affiliates in support of its internal business.
Certain Services may have supplemental terms and conditions unique to such Services or additional features that Customer will be required to accept at the time of Customer’s subscription or selection of such additional features (“Supplemental Terms”). Supplemental Terms do not replace this Agreement, but rather augment the terms and conditions in this Agreement. Supplemental Terms will only be binding if expressly agreed to by Customer in writing by the Parties. If there is any inconsistency or conflict between the terms of this Agreement (as revised) and any other agreement regarding Customer’s use of the Services, including Supplemental Terms, a service order or purchase order, the terms of such other agreement will control, but only with respect to the Services, products and subject matter covered by such other agreements.
1. Provision of the Services
1.1 Provision Generally
During the Subscription Term (as defined in Section 4.1) Gorgias will provide Customer access to the subscribed Services based on Customer’s Subscription Plan in accordance with this Agreement and Supplemental Terms, if any, the Data Processing Agreement, and Gorgias’ Privacy Notice (if Customer resides in a jurisdiction other than in the European Economic Area (“E.E.A.”)) and the Gorgias’ EU Privacy Notice (if Customer resides in an E.E.A. jurisdiction), in each case as updated from time to time. This Agreement does not cover professional services, and such services will only be provided under a separate agreement between Gorgias and Customer.
1.2 Grant of Rights
Subject to compliance with the terms and conditions of this Agreement, including payment of fees, the eligibility requirements set forth in Section 1.3 and the restrictions and requirements set forth in Section 1.4, during the Subscription Term and for the number of users based on Customer’s selected Subscription Plan Gorgias hereby grants Customer a limited, non-exclusive, non-transferable right to: (a) access and use, and allow its Agents to access and use, the Services solely for Customer’s internal business purposes, (b) allow End-Users to use the Services solely in connection with support related to Customer’s business, and (c) download, install and use the Gorgias-branded software applications provided by Gorgias to enable access 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 sub-paragraph (a) of this Section 1.2. 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 or any other Agreement concerning the Services.
The rights granted to Customer in this Agreement may be extended by Customer to Customer’s Affiliates and to contractors or service providers acting on Customer’s or Customer’s Affiliates’ behalf, provided that Customer remains responsible for their compliance hereunder.
1.3 Eligibility Requirements
Customer represents and warrants that Customer meets the following minimum requirements to subscribe to the Services: (a) if an individual, Customer is at least 18 years old and has the legal capacity to be bound by this Agreement; (b) if Customer is subscribing on behalf of a third-party, such as Customer’s company or employer, Customer has the necessary rights and authority to enter into and perform the obligations required in this Agreement, including entering into this Agreement on behalf of and binding such third-party; (c) 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; (d) Customer is in compliance with all applicable laws, including all applicable laws and regulations pertaining to data privacy when using the Services; (e) none of the Customer Data (as defined herein) will contain any unlawful, defamatory, offensive, libelous, harassing, abusive, fraudulent, pornographic or obscene content or material; and (f) Customer will provide Gorgias with any information, records, or materials requested to verify compliance with the eligibility requirements set forth in this Agreement.
1.4 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 its normal operation or as specified in any documentation or instructions provided by Gorgias with regard to the use of the Services (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 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 App; (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 or association with Gorgias other than as a subscriber of the Services.
(b) Customer Data
Customer is solely responsible for all data and information that the Customer, Agents and its End-Users input into the Services, is provided by third party integrations through Customer’s use of the Services, or is collected, generated, or obtained by Gorgias or on its behalf in connection with the Customer’s use of the Services (including from End-Users) (each of the above, the “Customer Data”). Gorgias does not guarantee the accuracy, integrity or quality of Customer Data. Customer will not: (i) upload or otherwise make available to Gorgias any Customer Data that is unlawful or that violates the rights of any third parties; (ii) 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; (iii) use, upload or otherwise transmit any Customer Data that infringes any intellectual property or other proprietary rights of any third party; (iv) 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; (v) interfere with or disrupt the Services or servers or networks connected to the Services; (vi) upload or otherwise make available or permit the upload to Gorgias 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 constitutes similarly protected information under any applicable state rule or regulation, (vii) violate any applicable law, rule, or regulation, including those regarding the export or re-export of technical data, or (viii) use the Services in a manner not prescribed in the Documentation. 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. Gorgias will rely on such information to send notices, statements and other information to Customer via email, through its Services’ account, and/or Mobile App.
(c) 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 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, 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).
1.5 Customer Support and Cooperation
We will use commercially reasonable efforts to make the Services available, based on the Subscription Plan, 24 hours a day, 7 days a week, except during (a) Planned Downtime; and (b) Force Majeure Events. Customer’s Subscription Plan includes standard customer support for the subscribed Services based on Customer’s Subscription Plan and as detailed in the related Documentation. Customer may be able to procure additional support by purchasing such support or upgrading Customer’s Subscription 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 1.5, “Planned Downtime” means planned downtime for upgrades and maintenance to the Services scheduled in advance of such upgrades and maintenance.
1.6 Modification of Services
Gorgias retains the right to modify its Services during the Subscription Term, including the Mobile Apps and any features and functionality of the Services. If such modification deprecates a material feature or functionality of the Services, Customer may terminate on 30 days’ notice and receive a refund for pre-paid fees for Services not provided after that termination.
1.7 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 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 App, including as explained in the Documentation. Gorgias is not responsible for any Customer or other 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 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.
1.8 Feedback and AI Learnings
(a) Feedback
Notwithstanding the above or anything to the contrary herein, to the extent that Customer 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”), such Feedback will not be considered Confidential Information of Customer. Gorgias and its Affiliates will have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any such Feedback received from Customer, Agents, End-Users, or other third parties acting on Customer’s behalf in any manner Gorgias chooses. 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.
(b)Usage Data
Customer acknowledges that the use of the Services generates usage data, such as query logs and data (other than Customer Data) relating to the operation, support and/or Customer’s use of the Services, Mobile App, and other Gorgias Technology (“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 compensation. 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 any compensation. Except with respect to any Customer Data and solely as permitted under applicable law, Gorgias owns and controls all Usage Data and Aggregate Data, subject to the Gorgias Privacy Notice or EU Privacy Notice, as applicable. Any such sharing with a third party will not include any Customer’s Confidential Information except as permitted in Section 9.
2. Ownership
2.1 Gorgias Technology
The Services consists of and/or is 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’ business proprietary information (including the data, information, text, images, designs, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information other than Customer Data) 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 forgoing, and (e) all intellectual property and industrial rights therein and thereto (collectively, the “Gorgias Technology”). As between the Parties, all right, 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 the Services or the Gorgias Technology other than a limited right to access and use the Services in accordance with this Agreement.
2.2 Customer Data
Gorgias acknowledges and agrees that as between Customer and Gorgias, all right, 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 the Customer Data other than as set forth in this Agreement or Supplemental Terms. As between the parties, Customer and its licensors retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of the operation of the Gorgias Technology. Subject to the terms of this Agreement, Customer hereby grants to Gorgias a worldwide, non-exclusive, royalty-free right to use, reproduce, manipulate, and display the Customer Data during the Term in connection with providing the Services, Mobile App, and perform all related obligations owed to Customer under this Agreement, or as may be required by law. For the avoidance of doubt, Gorgias is prohibited from selling the Customer Data.
2.3 Marks
No right or license is granted hereunder to either Party under any trademarks, service marks, trade names or logos. 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.
3. Fees; Payments; Taxes
3.1 Fees
In consideration of the provision of the Services, Customer will pay Gorgias the applicable fees pursuant to the fee schedule and Customer’s Subscription Plan, and make such payment in accordance with the Gorgias’ instructions or as otherwise agreed by the Parties.
For a payment card and other payment instrument, payments will be processed immediately to such payment instrument upon presentment of Gorgias’ invoice. Customer authorizes Gorgias or its authorized payment agents, as applicable, to bill the payment instrument upon subscription to the Service(s) (and any renewal thereof). Fees paid are non-refundable.
Gorgias is not a payments processor, intermediary, or payment agent. Gorgias’ third-party payment agent 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 agent will not be construed as providing the Services.
3.2 Increases
Gorgias reserves the right to increase its fees following the Initial Term or Renewal term (as defined below) for any Renewal Term on 60 days’ prior notice. If Customer objects to the fee increase, Customer may terminate the Services by written notice following the Initial Term or applicable Renewal Term. If Customer does not exercise its right of termination during such period, Customer will be deemed to have accepted the increased fees.
3.3 Taxes
All amounts due hereunder are exclusive of all sales, use, excise, service, value added, 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 applicable direct or indirect Taxes associated with its purchases hereunder that Gorgias is legally required to collect, and will be itemized on the Gorgias’ invoice. 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 unless the Customer provides Gorgias with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.4 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 or (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.
3.5 Subscription Plan Upgrades and Downgrades
If Customer elects to upgrade its Subscription Plan during the applicable Subscription Term, any incremental charges associated with such upgrade will be charged for the remaining 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 prior to the end of the then-current Subscription Term. Customer must take such actions as required by Gorgias to accommodate the downgrade of the Subscription Plan prior to the beginning of the new Subscription Term. Gorgias is not responsible for any loss of data, content, features, or capacity of the Services after any such downgrade.
4. Term; Termination; Survival
4.1 Term
The term of this Agreement will commence upon Customer’s selection of a Subscription Plan to any of the Services, and will continue for the period of the initial subscription period selected by the Customer (the “Initial Term”), unless earlier terminated in accordance with this Agreement. In the event that the Agreement is not terminated, the Initial Term will continue to automatically renew for the length of the Initial Term (each a “Renewal Term”). The Initial Term and any Renewal Term is referred to herein as a “Subscription Term” or the “Term.”
4.2 Termination
Either Party may terminate this Agreement (a) by written notice to the other Party, if the other Party breaches any obligation under this Agreement, the breach is capable of remedy, and the Party in breach does not remedy that breach within 30 business days of receipt of a notice from the non-breaching Party specifying the breach and requiring the breach to be remedied; (b) immediately upon notice if the other Party breaches any obligation under this Agreement, and the breach is incapable of remedy; or (c) if the other Party makes a general assignment for the benefit of its creditors, commences, or has commenced against it, proceedings under any bankruptcy, insolvency, or debtor’s relief law, which proceedings are not dismissed within 30 calendar days, or is liquidated or dissolved.
In addition, either Party may elect not to renew this Agreement and/or the Subscription Plan to a Service at the end of the then-current Subscription Term by providing notice no less than (a) 30 days prior to the end of such Subscription Term if such term is annual, or (b) 5 days prior to the end of such Subscription Term if such term is monthly. If Customer elects not to use the Services during the Subscription Term, the Customer is still obligated and agrees to pay the Fee applicable to the Subscription Plan for the entire agreed Subscription Term. In no event will any suspension or termination of the subscription relieve Customer to pay any fees due to Gorgias for the period prior to such suspension or termination.
4.3 Temporary Suspension
In Gorgias’ sole discretion and upon notice to Customer, Gorgias may elect to suspend Customer’s subscription account in lieu of termination until the breach has been remedied, including non-payment of fees. Gorgias will also provide written notice to Customer if the suspended Subscription Plan is reinstated. Gorgias may also restrict functionalities or suspend the Services (or any part thereof), the Subscription Plan account, or the Agents’ or End-Users’ access and use the Services, including removing any Customer Data or other content if (a) we reasonably believe that Customer, Agent or End-Users have violated this Agreement; or (b) we suspect or detect any malicious activity or software when in the Services. We may also remove Customer Data or other content to mitigate the risk of a security compromise or to protect the rights of others. Unless we are legally prohibited from doing so, we will use commercially reasonable efforts to contact Customer via email when taking such actions. We may refer any suspected fraudulent, abusive, or illegal activity by Customer, Agent or End-Users to law enforcement authorities.
4.3 Effects of Termination; Survival
Upon any termination of this Agreement: (a) all rights granted to Customer hereunder will terminate and Gorgias will no longer provide access to the Services to Customer, its Agents, or End-Users, and (b) Customer will cease using the Services. If requested by Customer, Gorgias will make the Customer Data available to Customer, including as provided in the Documentation (if any), for 45 days after the effective date of termination, expiration or migration of this Agreement or the Subscription Plan, except where we have only suspended Customer’s subscription as permitted in this Agreement. 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 will survive termination of this Agreement. In addition, the following Sections, as well as any other provisions herein which by their nature should survive, will survive termination of this Agreement: Sections 2 through 10.
5. Data Protection
5.1 Data Generally
All Customer Data will be stored in a private and secure fashion, and will not be used by Gorgias except as provided herein. Customer will be solely responsible for providing, updating, uploading and maintaining all Customer Data. The content of Customer Data will be Customer’s sole responsibility.
5.2 Safeguards and Breach Notice
Gorgias will implement and maintain reasonable and appropriate technical and organizational measures to ensure the protection, confidentiality, and integrity of Customer Data and otherwise provided in the Data Processing Agreement. In the event of any actual or reasonably suspected accidental, unauthorized, or unlawful use, destruction, loss, alteration, disclosure of, or access to Customer Data (“Security Incident”), Gorgias will: (a) provide prompt notice to Customer (no more than seventy-two (72) hours) upon Gorgias’ discovery of the Security Incident; (b) use reasonable efforts and take all reasonable actions to prevent, contain, and mitigate the impact of the Security Incident; (c) collect, preserve, and document evidence as reasonably practicable concerning the discovery, cause, vulnerability, remedial actions and impact related to such Security Incident and (d) reasonably cooperate with Customer related inquiries.
5.3 Subcontracting and Sub-Processors
Gorgias will engage sub-processors that will have access to or Process Customer Data to assist in providing the Services to Customer. Customer authorizes Gorgias’ use of the sub-processors listed in the Data Processing Agreement. We will be responsible for the acts and omissions of such Sub-processors to the same extent as Gorgias is responsible if Gorgias was performing the Processing directly under the terms of this Agreement.
5.4 Role of Gorgias Under Applicable Data Protection Laws
(a) Gorgias as a Business/Data Controller
Gorgias will be considered the “business” or “data controller” (as such terms are defined under applicable data protection laws) of certain Customer’s personal information or data as set forth and in accordance with the Gorgias Privacy Notice or the EU Privacy Notice, as applicable. Customer is responsible for informing its Agents and End-Users of their rights as set forth in our relevant privacy notices.
(b) Gorgias as a Data Processor
The Parties acknowledge that Gorgias acts as a “data processor” or “service provider” (as such terms are defined under applicable data protection laws) when processing Customer Data that includes personal information or personal data. The Data Processing Agreement governs the processing of such personal information or personal data by Gorgias as a “data processor”, and is incorporated by reference herein into this Agreement. Terms defined in the Data Processing Agreement have the meaning set forth therein when used in this Agreement.
(c) Data Protection Compliance
Customer represents and warrants that Customer has obtained all relevant consents, permissions and rights, and provided all relevant notices necessary under applicable data protection or privacy laws for Gorgias to lawfully process such information as an independent controller or data processor.
6. Representations and Warranties; Disclaimer
6.1 General Representations and Warranties
Each Party hereby represents and warrants to the other Party that: (a) if such Party is a corporation, company or other entity (as applicable), 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.
6.2 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 thereto) to grant the licenses to Customer under this Agreement. GORGIAS DOES NOT WARRANT THAT IT WILL BE ABLE TO CORRECT ALL REPORTED DEFECTS OR THAT USE OF THE SERVICE 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 paragraph 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.
6.3 Disclaimer
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES, INCLUDING ALL MOBILE APPS, SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW. NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICE (IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE), INCLUDING ANY WARRANTY (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, (B) NONINFRINGEMENT, (C) THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, (D) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, OR (E) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICE.
6.4 Additional Disclaimer
CUSTOMER ACKNOWLEDGES THAT THE SERVICE IS 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 HELP RECEIVE PAYMENTS. GORGIAS MAY CHANGE ITS HOSTING CONTRACTOR AND PAYMENT PROCESSOR AT ANY TIME. THE USE OF THE SERVICE IS SUBJECT TO ANY RESTRICTIONS IMPOSED BY THE HOSTING CONTRACTOR AND THE PAYMENT PROCESSOR, AS APPLICABLE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, GORGIAS WILL NOT BE LIABLE FOR ANY PROBLEMS, FAILURES, DEFECTS OR ERRORS WITH THE SERVICE TO THE EXTENT CAUSED BY THE HOSTING CONTRACTOR OR PAYMENT PROCESSOR OR AGENT. CUSTOMER ACKNOWLEDGES THAT THE FEES PAYABLE FOR THE SERVICE REFLECT THE FACT THAT GORGIAS IS NOT RESPONSIBLE FOR THE ACTS AND OMISSIONS OF THE HOSTING CONTRACTOR OR PAYMENT PROCESSOR.
7. Limitations of Liability
7.1 Damages Cap
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, EACH PARTY’S TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SERVICE 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.
7.2 Disclaimer of Indirect Damages
IN NO EVENT WILL EITHER PARTY 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 SERVICE OR THIS AGREEMENT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
7.3 Exceptions
THE LIMITATIONS IN SECTIONS 7.1 AND 7.2 ABOVE WILL NOT APPLY TO LIABILITY ARISING FROM (A) A PARTY’S WILLFUL MISCONDUCT; (B) CUSTOMER’S OBLIGATION TO PAY ALL AMOUNTS DUE HEREUNDER; (C) A BREACH OF CONFIDENTIALITY OBLIGATIONS OR INFRINGEMENT OR MISAPPROPRIATION BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (D) INDEMNIFICATION OBLIGATIONS. WITH RESPECT TO LIABILITY ARISING FROM AN UNAUTHORIZED USE OR DISCLOSURE OF CUSTOMER DATA IN BREACH OF THIS AGREEMENT, SUPPLEMENTAL TERMS OR THE DATA PROCESSING AGREEMENT, EACH PARTY’S LIABILITY TO EACH OTHER WILL BE TWICE THE AMOUNT SET OUT IN SECTION 7.1 OF THIS AGREEMENT NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 7.1.
7.4 Basis of the Bargain
THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY AND EXCLUSION OF DAMAGES SET FORTH IN THIS SECTION 7 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 THAT ANY REMEDY WILL FAIL ITS ESSENTIAL PURPOSE.
7.5 Limitation of Liability in the Aggregate
THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN APPLIES IN AGGREGATE TO ANY AND ALL CLAIMS BY SUBSCRIBER AND ITS AFFILIATES, AND WILL NOT BE CUMULATIVE.
7.6 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) OR FOR A PARTY’S OWN FRAUD, WILLFUL INJURY TO THE PERSON OR PROPERTY OF ANOTHER, OR VIOLATION OF LAW. IN A JURISDICTION WHERE SOME OF THE ABOVE LIMITATIONS DO NOT APPLY, GORGIAS’ LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY THE LAWS OF SUCH JURISDICTION.
8. Indemnification
8.1 Gorgias Indemnification
Gorgias will defend, and indemnify Customer from and against any third party claims, actions, proceedings, demands, lawsuits, damages, liabilities and expenses (including reasonable attorneys’ fees and court costs) to the extent it is proven in a final non-appealable adjudication that any part of the Services infringes, misappropriates, or otherwise violates any third party intellectual property or proprietary right when used as authorized in this Agreement (collectively, “Infringement”).
8.2 Customer Indemnification
Customer agrees to indemnify, defend, and hold Gorgias, its Affiliates, subcontractors, and each of their officers, employees, and subcontractors (singularly or collectively, “Gorgias Parties”) harmless against any demand, claim, action, proceeding, or losses, liabilities, damages, and claims, and all related costs and expenses (including any and all legal fees and reasonable costs of investigation, litigation, settlement, judgment, appeal, interest, and penalties) suffered or incurred by the Gorgias arising out of or in connection with any: (a) use of a Service (and not arising solely from the Service itself) by Customer, Agents or End-Users in breach of this Agreement; (b) negligence, fraud, dishonesty, or reckless or willful misconduct of Customer and/or any of its affiliates or representatives; (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, its Affiliates and/or their Agents; and (e) demand, claim, action, or proceeding brought by a third party alleging that Customer’s performance under this Agreement or any materials provided by Customer to Gorgias infringes or violates the rights of a third party, including any rights of privacy, confidentiality, or IP of that third party.
8.3 Indemnification Process
As conditions of the indemnification obligations in Sections 8.1-8.2 above: (a) the applicable Customer Indemnified Party or Gorgias Indemnified Party (the “Indemnitee”) will provide the indemnifying Party (the “Indemnitor”) notice of claim as soon as practical; (b) give the indemnifying Party the option to conduct the defense of the claim, including negotiations for settlement or compromise before the institution of legal proceedings; provide the indemnifying Party with reasonable assistance in conducting the defense of the claim; and (c) with respect to infringement claims, permit the indemnifying Party to modify, alter, or substitute the relevant infringing material to render it non-infringing.
8.4 Exclusions
Gorgias’s obligations in Section 8.1 above will not apply to any claim to the extent arising from or relating to (a) misuse of the Services not 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.
8.5 Exclusive Remedy for Claims of Infringement
If a Service is or may be subject to a claim of Infringement described in Section 8.1 above, 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, terminate this Agreement and return to Customer any pre-paid fees for the Service associated with the then-current Subscription Term. Gorgias’ obligations in this Section 8.5 will be Gorgias’s sole obligations, and Customer’s sole remedies, in the event of any claim of Infringement.
9. Confidentiality; Destruction; Feedback
9.1 Definition
“Confidential Information” means information that is disclosed by or on behalf of either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) hereunder during the Term 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 a Party’s technology, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information. “Confidential Information” will not include any information that (a) is or becomes generally known to the public through no fault of, or breach of this Agreement by, the Receiving Party; (b) is rightfully in the Receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (d) is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure. In addition, (a) the terms and conditions of this Agreement will be deemed to be Confidential Information of both Parties; (b) the Services, including Gorgias Technology, will be deemed Confidential Information of Gorgias, regardless of whether or not they are labeled or identified, or would reasonably be considered confidential; and (c) Customer Data will be deemed Confidential Information of Customer.
9.2 General Obligations
Each Party agrees to keep confidential, and not to use or disclose, other than as permitted by this Agreement, any Confidential Information of the other Party. These obligations of confidence extend to Confidential Information provided to or obtained by a Party prior to entry into this Agreement. Each Party may use or disclose Confidential Information of the other only on a “need-to-know” and confidential basis; (a) with the prior written consent of the other Party; (b) to its officers, agents, professional advisers (including lawyers), or employees under enforceable obligations to retain the confidentiality of such Confidential Information consistent with the terms in this Section 9; (c) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (d) as reasonably necessary to comply with any applicable law. Each Party that discloses Confidential Information of the other will ensure that such information is kept confidential by the recipients on the terms of this section. This Section 9 will control over any non-disclosure agreement by and between the Parties with respect to the exchange of Confidential Information after the execution of this Agreement. The Parties agree that any violation or threatened violation by a Party to this Agreement with respect to Confidential Information may cause irreparable injury to the other Party and thus the Parties agree such violation or threatened violation will entitle the other Party to seek injunctive or other equitable relief in addition to all legal remedies, without posting of a bond.
9.3 Return or Destruction
Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party, or destroy or erase the Disclosing Party’s Confidential Information in tangible form, upon the termination of this Agreement; provided that, subject to ongoing compliance with the terms of this Agreement for as long as it processes or controls the Disclosing Party’s Confidential Information, (a) Receiving Party may retain a copy of Disclosing Party’s Confidential Information solely for the purposes of tracking Receiving Party’s rights and obligations hereunder with respect thereto, (b) Receiving Party may retain copies of Disclosing Party’s Confidential Information solely to the extent required by law or by applicable professional standards which require such Party to retain copies of its working papers, and (c) Receiving Party may retain Disclosing Party’s Confidential Information solely to the extent reasonably necessary for Receiving Party to exercise rights or perform obligations under this Agreement that survive such termination.
10. Miscellaneous
10.1 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 it (nor its parents or controlling shareholders) is not named on any U.S. government or other applicable restricted-party list, and Customer will not, and will not permit any Agent or End-User to: (a) access or use any Service 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 Subscription Term); (b) access or use any Service if Customer, Agent or End-User is named on any U.S. government or other applicable restricted-party list; (c) place any information in the Services that is controlled under the U.S. International Traffic in Arms Regulations or other similar laws; or (d) access or use any Service for any purpose prohibited by the United States or applicable international import and export laws and regulations.
10.2 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’ 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.
10.3 Entire Agreement
This Agreement 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 which 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.
10.4 Amendment
We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify Customer not less than 30 days prior to the effective date of any such amendment and continued use of the Services following the effective date of any such amendment may be relied upon by Gorgias as your consent to any such amendment.
10.5 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 account, and such notices will be effective upon confirmation of transmission to Customer.
10.6 Force Majeure
Neither Party will be liable or responsible to the other, 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 the Party and which could not have been prevented by reasonable diligence on the part of such Party, 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 the non-performing Party promptly provides written notice to the other Party of such Force Majeure Event preventing or delaying performance and resumes its performance as soon as practicable.
10.7 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 (not unreasonably withheld).
10.8 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.
10.9 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 exclusively be settled 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 hereby agree 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.
10.10 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.
10.11 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.
10.12 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.
10.13 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.
