Revenue under Management Agreement

This Revenue Share Agreement (“Agreement”) is entered into by and between Gorgias Inc., a Delaware corporation (“Gorgias”), and the participating Reseller (“Partner”, “you”, or “your”) who joins the Gorgias Partner Program.

By participating in the Gorgias Partner Program, you agree to comply with and be bound by this Agreement.

1. DEFINITIONS
   

“Applicable Data Protection Laws” means all applicable laws, regulations, and other legal requirements in effect as of the Effective Date, or as they become effective, relating in any way to the privacy, confidentiality, or security of Personal Data, including the General Data Protection Regulation 2016/679 of the European Parliament and of the Council and any applicable national legislation implementing or supplementing the same (“GDPR”) and the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et seq., including any amendments and implementing regulations thereto that become effective on or after the Effective Date (“CCPA”); and all other applicable United States federal, state, and local privacy, data protection, and data security laws, in each case as amended, replaced, or superseded from time to time.

“AI Agent” means the service named “AI agent” that is made available by Gorgias to its customers generally (as it may be renamed by Gorgias from time to time), including associated User Documentation.

“Annual Commitment” means an annual minimum revenue commitment of in Subscription Fees from Merchant accounts attributed to Reseller, as further described in Section 5.1 and in the Annex.

“Gorgias Marks” means Gorgias’s then-current names, trademarks, service marks, trade names, logos, and any other identifiers for Gorgias and/or the Services.

“Gorgias Materials” means any and all (a) materials and information, including documents, documentation (including the User Documentation), data, specifications, software, software tools, content, technology, know-how, ideas, and methodologies, that Gorgias owns or licenses from a third party, whether or not relating to the Services and whether or not provided or otherwise made available to Reseller; (b) the Gorgias Marks; (c) Marketing Materials; (d) marketing plans, product roadmaps, and business plans of Gorgias; and (e) enhancements, improvements, derivatives, and modifications of the foregoing of any kind, and all embodiments of the foregoing in any form.

“Gorgias MSA” means the online Master Subscription Agreement available at https://www.gorgias.com/legal/terms-of-service (or any successor site), as it may be amended.

“Gorgias Transfer Price” means, for each applicable Merchant account, the portion of Subscription Fees actually collected by Gorgias that Gorgias retains after payment of the applicable Revenue Share to Reseller, as determined in accordance with the Revenue Share structure set forth in this Agreement and Annex A.

“Helpdesk” means the service named “Helpdesk” that is made available on a remote basis by Gorgias to its customers generally (as it may be renamed by Gorgias from time to time), including associated User Documentation. 

“Intellectual Property Rights” means any and all patents, copyrights, moral rights, author’s rights, rights of publicity, mask work rights, trademarks, service marks, trade names, trade secrets, know-how, contract rights, licensing rights, and other proprietary or intellectual property rights under the laws of any jurisdiction, whether existing as of the Effective Date or thereafter arising.

“Marketing Materials” means any and all marketing and similar materials provided to Reseller by Gorgias concerning the Services. 

“Merchant” means an end user enterprise or other organization that is a customer of Gorgias with a subscription to Helpdesk and AI Agent at the time it enters into a Reseller Agreement with Reseller. 

“Personal Data” any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a natural person or household, or that is otherwise “personal data,” “personal information,” “personally identifiable information,” or of similar designation under, or that is regulated by, Applicable Data Protection Laws.

“Quarter” means a calendar quarter.

“Referral Agreement” means the online Referral Agreement available at https://www.gorgias.com/legal/referral-agreement (or any successor site), as it may be amended.

“Reseller Agreement” means an agreement between Reseller and a Merchant for the Services that meets the requirements set forth in Section 2.5.

“Reseller’s Marks” means Reseller’s then-current names, trademarks, service marks, trade names, logos, and any other identifiers for Reseller.

“Revenue Share” means a percentage of Subscription Fees paid by a Merchant to Gorgias, attributable to a Merchant contract that originated from Reseller’s efforts (including sourcing, closing and or cross-sell). The applicable percentage will be as agreed between the parties in writing. The specific percentage of Revenue Share to be paid to Reseller will be set forth in a separate written agreement between the parties (see Annex A.)

“Services” means any and all products, features, functionalities, applications, tools, or services offered, provided, licensed, or otherwise made available by Gorgias from time to time, whether individually or in combination, and as may be modified, enhanced, or updated during the Term. 

“Subscription Fees” means the recurring amount due to Reseller from each Merchant for the Services. For clarity, Reseller determines in its sole discretion the Subscription Fees charged to Merchants. 

“User Documentation” means the then-current Gorgias user manual(s) and other written or online materials describing the Services.
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2. RESELLING MECHANICS

2.1 Appointment. Subject to the terms and conditions of this Agreement, Gorgias hereby appoints Reseller, and Reseller hereby accepts its appointment as a non-exclusive reseller of the Services directly to Merchants worldwide for each such Merchant’s access to and use of the Services in strict accordance with the Reseller Agreement (such appointment, the “Appointment”).

2.2 Right to Access. Subject to the terms and conditions of this Agreement, Gorgias hereby grants to Reseller a non-exclusive, non-sublicensable, non-transferable, revocable, restricted right to access and use the Services solely as needed for purposes of the Appointment.

2.3 Security of Credentials. Without limiting the generality of Section 9.3, Reseller will keep any and all login name(s), password(s), and other credentials required to access and use the Services pursuant to Section 2.2 (collectively, “Credentials”) confidential, keep them in a safe place, and protect them against unauthorized access with appropriate precautions, including technological safeguards. Reseller is and will be solely responsible for all actions performed using Reseller’s account on the Services. Reseller will notify Gorgias immediately upon becoming aware of, or beginning to suspect, any unauthorized access to or use of Reseller’s Credentials or of any other security breach. 

2.4 Reselling Restrictions. For clarity, in no event shall Reseller: (a) solicit or encourage any Merchant or any other person to enter into a Reselling Agreement with Reseller (or any third-party) for a subscription to Helpdesk or to use any third-party service competitive with Helpdesk; or (b) enter into a Reseller Agreement with the United States Government or any contractor or licensor thereof.

2.5 Reseller Agreement. To constitute a Reseller Agreement, the agreement must: (a) bind Reseller and a Merchant to each other in writing; (b) incorporate by reference the Gorgias MSA and allow the Merchant to access and use the Services strictly in accordance with the terms and conditions of the Gorgias MSA; (c) provide that Gorgias will invoice and collect Subscription Fees directly from Reseller, and Reseller shall be solely responsible for billing and collecting any applicable fees from Merchants;(d) not provide any warranties with respect to the Services that are inconsistent with the Gorgias MSA; (e) expressly name Gorgias as an intended third-party beneficiary of the agreement and provide that, in the event the Merchant breaches any of its obligations under the agreement, Gorgias may, in its sole discretion, terminate or suspend the provision of Services to the Merchant, without limiting any other of Gorgias’s available remedies; and (g) identify Reseller’s role as a referral and marketing partner entitled to Revenue Share under Gorgias’s attribution criteria.

2.6 No Other Rights. Reseller’s rights with respect to the Services are limited to those expressly granted in this Agreement. Without limiting the generality of the foregoing or of any other restrictions set forth in this Agreement:

The Appointment is non-transferable, and Reseller will not resell or otherwise permit access to the Services to any agents, sub-distributors, or contractors of Reseller, or to any other third parties, without Gorgias’s prior written approval; 

Reseller will not offer Services or make them available to, nor collect any fees with respect to Services from, any person or entity that is not a then-current Merchant; and

Reseller will not, and will not cause or permit any third party to: (i) attempt to gain unauthorized access to the Services or to any related systems or networks, (ii) modify, reverse engineer, or decompile or disassemble the Services, (iii) create derivative products based upon the Services or by using Gorgias Materials, or (iv) retain, use, or disclose Personal Data (if any) available through the Services for any purpose other than performing the activities contemplated by this Agreement.

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3. INTELLECTUAL PROPERTY RIGHTS

3.1 Gorgias Rights. Reseller acknowledges and agrees that Gorgias and its licensors own and will continue to own at all times all rights (including all Intellectual Property Rights), title, and interest in and to the Services and the Gorgias Materials. To the extent any ownership rights in or to the Services and/or the Gorgias Materials vest in Reseller, Reseller will and hereby does assign to Gorgias all rights (including all Intellectual Property Rights), title, and interest in and to the same. Gorgias reserves all rights and licenses in and to the Services not expressly granted to Reseller under this Agreement.

3.2 License to Marks. Subject to the terms and conditions of this Agreement, Gorgias hereby grants to Reseller a non-exclusive, non-sublicensable, non-transferable, revocable, restricted, worldwide right to use and display the Gorgias Marks, solely to identify Gorgias and the Services and to advertise and market the Services, during the Term, in each case in accordance with Gorgias’s then current quality control, usage, and other guidelines, as the same may be provided by Gorgias and as updated by Gorgias from time to time. Without limiting the generality of the foregoing, Reseller will not use any Gorgias Marks (whether individually or in combination, or in whole or in similar part): (a) as part of Reseller’s corporate or trade name or any domain name; (b) in any way that may cause confusion, mistake, or deception; (c) in any way that may dilute, tarnish, or otherwise diminish the Gorgias Marks’ distinctiveness or jeopardize the reputation of or goodwill associated with the Gorgias Marks, the Services, or Gorgias; or (d) challenge or assist others to challenge the Gorgias Marks or the registration thereof, or attempt to register or cause to be registered any Gorgias Marks or any trademarks, service marks, or trade names confusingly similar to the Gorgias Marks. All uses of the Gorgias Marks, and all goodwill associated therewith, will inure solely to the benefit of Gorgias. Reseller will cease using and displaying the Gorgias Marks immediately upon Gorgias’s withdrawal of approval.

3.3 Feedback. To the extent Reseller or any of Reseller’s employees or agents provides Gorgias with any suggestions, recommendations, or other feedback relating to the Services or to any other Gorgias products or services (collectively, “Feedback”), Reseller, on behalf of itself and each applicable employee or agent, hereby assigns to Gorgias all rights (including all Intellectual Property Rights), title, and interest in and to such 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 Reseller or to any third party (including any employee or agent of Reseller), for any purpose whatsoever, although Gorgias is not required to use any Feedback. Gorgias’s acceptance of a 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.

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4.RESELLER OBLIGATIONS

4.1 Marketing. Reseller will use commercially reasonable efforts to market the Services during the Term. Subject to the terms and conditions of this Agreement, Gorgias hereby grants to Reseller a non-exclusive, non-sublicensable, non-transferable, revocable, restricted, worldwide right to use, during the Term, such Marketing Materials as Gorgias may provide or otherwise make available to Reseller for the purpose of marketing the Services, solely for such purpose. Reseller will not use any Marketing Materials other than in accordance with any relevant guidelines provided in writing by Gorgias. Reseller will cease using the Marketing Materials immediately upon Gorgias’s withdrawal of approval. Reseller will not use any marketing or similar materials prepared by Reseller or provided to it by a third party that are not pre-approved by Gorgias in writing for Reseller’s use for the purpose of Reseller’s marketing of the Services.

4.2 Gorgias Identifiers. Reseller will not: (a) remove any Gorgias copyright notice(s), proprietary rights legend(s), and/or other indicia of ownership from the Services, (b) private label the Services, or (c) advertise, promote, market, or distribute the Services using any names, trademarks, service marks, trade names, or logos other than the Gorgias Marks.

4.3 Monthly and Quarterly Reporting. By five (5) days after each calendar month of the Term, Reseller will provide to Gorgias written lists of: (a) any and all organizations that became Merchants during the previous month. Additionally, by fifteen (15) days from the end of each Quarter, Reseller will provide to Gorgias, in writing, the following information with respect to each Reseller Agreement that was in effect at any point during such Quarter: (i) the Merchant’s full name, and (ii) the total Subscription Fees subscribed. For clarity, this Section 4.3 shall survive the termination or expiration of this Agreement. 

4.4 Merchant Enforcement. Reseller shall promptly notify Gorgias of any suspected breach by a Merchant of the Reseller Agreement that is related (in whole or in part) to Gorgias’s Intellectual Property Rights and/or the Gorgias MSA, and Reseller will reasonably cooperate with and assist Gorgias, at Gorgias’s expense, in bringing legal action against such Merchant. Reseller will perform any actions reasonably requested by Gorgias in writing to assure adequate protection of Gorgias’s Intellectual Property Rights in and to the Services and Gorgias Materials. Reseller will be solely liable for each Merchant’s performance of, or failure to perform, the applicable Reseller Agreement.

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5. COMPENSATION AND PAYMENT TERMS

5.1 Annual Commitment Revenue. Reseller agrees to generate and maintain a minimum level of Annual Recurring Revenue (ARR) in Subscription Fees from Merchants attributed to Reseller during each calendar year of the Term (the “Annual Commitment Revenue”). The required ARR threshold applicable to Reseller shall correspond to the Partner Tier assigned to Reseller under Gorgias’s Partner Program, as set forth in the Partner Program documentation or as otherwise communicated by Gorgias in writing. Attribution shall be determined in accordance with Gorgias’s partner attribution policy. If, at the end of any calendar year, the attributed ARR does not meet the threshold applicable to Reseller’s Partner Tier, Gorgias reserves the right to invoice Reseller for the shortfall, and/or suspend Revenue Share eligibility for the following period.

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5.2 Revenue-Share Payments. Gorgias shall invoice and collect Subscription Fees directly from Reseller. Within fifteen (15) days following the end of Quarter, Gorgias shall remit to Reseller the Revenue Share attributable to Merchant contracts initiated or influenced by Reseller, in accordance with Gorgias’s attribution policy. Gorgias reserves the right to adjust Revenue Share percentages or eligibility criteria with thirty (30) days' prior written notice to Reseller. Taxes. The Revenue Share does not include any sales taxes, value added taxes, or any other taxes, duties, or excises that may be due in any applicable jurisdiction (excluding taxes based on Gorgias’s net income, “Taxes”). Gorgias will have no liability for Taxes, and Reseller will indemnify Gorgias in the event that Gorgias is charged for any Taxes. This provision does not apply to any taxes for which Reseller is exempt, provided that Reseller has furnished Gorgias with a valid tax exemption certificate authorized by the appropriate taxing authority.

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6. WARRANTY AND DISCLAIMER

6.1 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.

6.2 Reseller Warranties. Reseller further represents and warrants that: (a) it possesses the experience, skills, and resources required to perform its obligations under this Agreement, and will perform its obligations under this Agreement in compliance with all applicable laws and regulations; (b) it will not make any promises, representations, warranties, or other commitments: (i) actually, apparently, or impliedly on Gorgias’s behalf, or (ii) concerning or relating to the Services other than as contained in the Gorgias MSA or pre-approved by Gorgias in writing; (c) it will not engage in any unfair, unethical, misleading, or deceptive acts or practices for or in connection with any advertising, promotion, marketing, or distribution of the Services; (d) it will conduct its business in its own name, in accordance with the highest business standards, in a manner that reflects favorably at all times on Gorgias and its good name, goodwill, and reputation, and in compliance with all applicable laws and regulations; (e) it will not, and will ensure that employees and agents do not, directly or indirectly make an offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of any government (including a decision not to act) or of inducing such a person to use his or her influence to affect any such governmental act or decision in order to assist Reseller in obtaining, retaining, or directing any business; and (f) it will comply with any such other reasonable terms, policies, and procedures then in effect with respect to the Services provided by Gorgias to Reseller in writing.

6.3 Limited Gorgias Warranty. Gorgias warrants to Reseller alone that it will provide the Services in a competent and workmanlike manner consistent with industry standards. 

6.4 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, THE SERVICES AND THE GORGIAS MATERIALS, 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 THE 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, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF WILL MEET RESELLER'S OR ANY THIRD PARTY’S (INCLUDING ANY MERCHANT’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. 

7. INDEMNIFICATION

7.1 Reseller’s Indemnification Obligations. Reseller will indemnify, defend, and hold harmless Gorgias and its officers, directors, employees, 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) Reseller’s breach or alleged breach of this Agreement or of any Reseller Agreement(s);  (b) Reseller’s or its representatives’ (i) access to or use of the Services in a manner inconsistent with this Agreement or any applicable User Documentation, (ii) interactions with Merchants and/or prospective Merchants, or (iii) gross negligence or willful misconduct.

7.2 Gorgias’s Indemnification Obligations. Gorgias will indemnify, defend, and hold harmless Reseller from and against any and all Losses arising out of or in connection with any Claim by a third party against Reseller arising out of or relating to: (a) Gorgias’s breach or alleged breach of this Agreement,  (b) an allegation that Reseller’s use of Gorgias Materials in accordance with this Agreement and any Gorgias instructions infringes or violates the Intellectual Property Rights of such third party, or (c) any Claim by Merchant against Reseller arising directly from a material and prolonged outage of the Services caused solely by Gorgias, excluding downtime resulting from force majeure events or misuse of the Services.

7.3 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 7.1 or Section 7.2 (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 7.1 or Section 7.2 (as applicable).

8. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO (a) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (b) EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 9; (c) RESELLER’S BREACH OF SECTION 2.6 OR SECTION 6.2; (d) THE PARTIES’ RESPECTIVE OBLIGATIONS UNDER SECTION 7.1 AND SECTION 7.2; 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 GREATER OF (x) THE AMOUNTS PAID BY RESELLER TO GORGIAS HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES AND (y) THE GORGIAS TRANSFER PRICE. THE FOREGOING LIMITATIONS APPLY NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 

9. CONFIDENTIALITY; DATA PRIVACY AND SECURITY.

9.1 Confidential Information. Subject to Section 9.2, “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, non-public Gorgias Materials, and the Credentials are and will be the Confidential Information of Gorgias, and the content of the reports prepared pursuant to Sections 4.3. are and will be the Confidential Information of both parties.

9.2 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 9.3 will not apply to disclosures of Confidential Information required by applicable law or regulation or by 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.

9.3 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 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. 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.

9.4 Data Privacy and Security. Gorgias and Reseller are independently responsible for compliance with the Applicable Data Protection Laws applicable to the provision of the Services, respectively, in particular in relation to the exercise by individuals of the rights they have in respect of their Personal Data pursuant to Applicable Data Protection Laws. Each party will maintain appropriate administrative, physical, and technical safeguards for the protection of the privacy, security, confidentiality, and integrity of the Personal Data collected, received, processed, and/or maintained by such party under this Agreement, and will comply, and ensure that its employees, agents, and contractors comply, with all Applicable Data Protection Laws. Reseller represents and warrants that, before providing to Gorgias any data, including Personal Data, relating to Merchants and prospective Merchants as required under this Agreement, it will obtain all necessary consents. Reseller will ensure that each Merchant acknowledges Gorgias’s then-current Privacy Notice (currently available at: https://www.gorgias.com/legal/privacy) and agrees to Gorgias’s then-current Data Processing Agreement (currently available at: https://www.gorgias.com/legal/data-processing-agreement), in each case prior to such Merchant’s access to and use of the Services. 

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10. TERM AND TERMINATION

10.1 Term. This Agreement will begin on the Effective Date and, unless earlier terminated as set forth herein, will remain in effect for one (1) year therefrom, and thereafter will automatically renew for successive one (1) year terms unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current initial or renewal term (as applicable) (collectively, the “Term”). 

10.2 Termination for Breach. Either party may terminate this Agreement, effective immediately upon written notice, if (a) the other party has breached this Agreement and such breach is not curable, or (b) the other party has breached this Agreement 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.

10.3 Termination for Insolvency. Either party may terminate this Agreement, 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.

10.4 Termination due to Reseller Association with a Competitor. Notwithstanding the non-exclusive nature of the appointment contemplated under this Agreement, Gorgias may terminate this Agreement upon thirty (30) days’ written notice in the event Gorgias determines, in its reasonable discretion, that: (i) Reseller has developed, offers, or otherwise makes available a services, helpdesk solution or AI agent that is competitive with the Gorgias Services; or (ii) Reseller markets, promotes, or resells products or services that are substantially similar to or competitive with the core Gorgias Services and which are offered by a direct competitor of Gorgias, in each case where Gorgias is capable of supporting such customer’s use case. For clarity, this Section shall not apply where Reseller resells a competitive product solely in circumstances where Gorgias is unable to meet the relevant customer’s product or support requirements. 

10.5 Effect of Termination. Upon the termination or expiration of this Agreement for any reason: (a) the Appointment and all other rights granted by Gorgias to Reseller hereunder (including, without limitation, the rights to offer Services and to make them available to Merchants ) will terminate (to the extent not already expired); (b) with respect to each Reseller Agreement then in effect (if any),; and (c) Reseller will return to Gorgias any and all Confidential Information of Gorgias then in Reseller’s possession or under Reseller’s control, or, at Gorgias’s request, destroy the same and provide Gorgias with an officer’s written certification of compliance with the foregoing. Upon Gorgias’s request at any point after the termination or expiration of this Agreement, Reseller will reasonably cooperate with Gorgias in transferring former Merchants to direct contracts with Gorgias.

10.6 Non-Exclusive Remedy. Termination of this Agreement by either party pursuant to Section 10.2 will be a non-exclusive remedy for breach and will be without prejudice to any other right or remedy of such party.

10.7 Survival. Sections 2.3, 4.3, 4.4, 5 through 9 (inclusive), 10.5, 10.6, 10.7, and 11 will survive the termination or expiration of this Agreement. For clarity, Reseller’s obligation to pay Revenue Share shall survive and continue to be due and payable in accordance with the terms of this Agreement after the termination or expiration of this Agreement.

10.8 Migration to Referral Agreement. Notwithstanding anything in this Agreement to the contrary, Gorgias reserves the right to terminate this Agreement at any time for any or no reason in connection with a termination of the program contemplated by this Agreement, and in such case, Gorgias will migrate all Merchants to customer accounts directly with Gorgias and thereafter will pay Reseller a Referral Fee in accordance with the Referral Agreement. 

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11. MISCELLANEOUS

11.1 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 and, in the case of Reseller, Section 2.6, Section 3, or Section 4.2, 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.

11.2 Assignment. Reseller 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 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.

11.4 Governing Law; Forum. This Agreement will be governed by the laws of Delaware, without regard to its conflict of laws rules that might cause the application of the laws of any other jurisdiction. Other than as necessary to enforce any final judgment, award, or determination, any action brought pursuant to or in connection with this Agreement will be brought only in the state courts of or federal courts in California, and both parties submit to the personal jurisdiction of such courts and waive any objections to venue of such courts.

11.5 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.

11.6 Independent Contractors. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without the other’s prior written consent. Without limiting the generality of the foregoing, Reseller does not have the authority to legally represent, or negotiate on behalf of, Gorgias, or to make any commitments or agreements or to incur any liabilities whatsoever on behalf of Gorgias, nor will Gorgias be liable for any acts, omissions to act, contracts, commitments, representations, warranties, or guarantees made by Reseller to a third party (including, without limitation, a Merchant).

11.7 Publicity and Use of Reseller Marks. Gorgias may identify Reseller as a reseller of Services in press releases, on Gorgias’s website, in marketing materials, and in demonstrations and presentations. Subject to the terms and conditions of this Agreement, Reseller hereby grants to Gorgias a non-exclusive, non-sublicensable, non-transferable, revocable, restricted, worldwide right to use and display the Reseller Marks, solely for the purposes described in this Section, solely during the Term. All uses of the Reseller Marks, and all goodwill associated therewith, will inure solely to the benefit of Reseller. 

11.8 No Conflicts. Reseller represents and warrants that neither this Agreement (or any provision hereof), nor the performance of or exercise of rights by Reseller under this Agreement, is restricted by, contrary to, or in conflict with any other agreement to which Reseller may be a party.

11.9 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.

11.10 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 Entire Agreement. This Agreement, together with the Gorgias Master Subscription Agreement (“Gorgias MSA”) and any other Gorgias partner program terms that are expressly incorporated by reference and applicable to you (including, where relevant, the Referral Agreement and any program guides, addenda, or annexes), constitutes the complete agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous understandings

11.12 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.

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