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Marketplace Seller Agreement

Last updated: November 25th, 2020

 

1. INTRODUCTION.

This Marketplace Seller Agreement (this "Agreement") contains the terms and conditions that govern Customer's access to and use of the Services and Customer's listing and/or offering of Content in the Accelize Marketplace, and is an agreement between Accelize Inc. and its affiliates (collectively, "Accelize") and Customer or the entity Customer represents ("Customer"). "Party" or "parties" shall mean, individually, Accelize or Customer as the context requires and, collectively, Accelize and Customer.

This Agreement shall take effect when Customer clicks an "I Accept" button or check box presented with these terms or, if earlier, when Customer use any of the Services (the "Effective Date"). Customer represents to Accelize that Customer is lawfully able to enter into contracts (e.g., Customer is not a minor). If Customer is entering into this Agreement for an entity, such as the company Customer works for, Customer represents that Customer has the legal authority to bind that entity.

 

2. DEFINITIONS.

2.1 Defined Terms. ​ For purposes of this Agreement, the defined terms herein shall have the meanings set forth as below whenever capitalized, or as otherwise set forth in this Agreement.

  • "Accelize Confidential Information" shall mean, without limitation, (i) all information communicated by Accelize, its affiliates or business partners, or their respective employees, contractors, or agents, that should reasonably be considered confidential under the circumstances, notwithstanding whether it was identified as such at the time of disclosure. Accelize Confidential Information includes (a) nonpublic information relating to Accelize or its affiliates or business partners' technology, customers, business plans, promotional and marketing activities, finances, and other business affairs, (b) third party information that Accelize is obligated to keep confidential, and (c) the nature, content and existence of any discussions or negotiations between Customer and Accelize or its affiliates or business partners. Accelize Confidential Information does not include any information that (i) is or becomes publicly available without breach of this Agreement, (ii) can be shown by documentation to have been known to Customer at the time of Customer's receipt from Accelize, (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act, or (iv) can be shown by documentation to have been independently developed by Customer without reference to the Accelize Confidential Information.

  • "Accelize Content" shall mean content that Accelize, or any of Accelize's affiliates or business partners, make available in connection with the Services or on the Accelize Sites to allow access to and use of the Services, including APIs, WSDLs, Documentation, sample code, software libraries, hardware libraries, command line tools, proofs of concept, templates, and other related technology, including any of the foregoing that may be provided by Accelize personnel. Accelize Content does not include the Services or Third Party Content.

  • "Accelize Marketplace" shall mean the software distribution platform operated by Accelize located at https://portal.accelize.com, as it may be updated by Accelize from time to time.

  • "Accelize Marks" shall mean any trademarks, service marks, service or trade names, logos, and other designations of Accelize and its affiliates or business partiers that Accelize may make available to Customer in connection with this Agreement.

  • "Acceptable Use Policy" shall mean the Accelize Acceptable Use Policy, as it may be updated by Accelize from time to time.

  • "Account Country" shall mean the country associated with the Customer's account. If Customer has provided a valid tax registration number for Customer's account, then Customer's Account Country is the country associated with Customer's tax registration. If Customer has not provided a valid tax registration, then Customer's Account Country is the country where Customer's billing address is located, except if Customer's credit card account is issued in a different country and Customer's contact address is also in that country, then Customer's Account Country shall be that country.

  • "Account Information" shall mean information about Customer that Customer provides to Accelize in connection with the creation or administration of Customer's Accelize account. For example, Account Information includes names, usernames, phone numbers, email addresses, and billing information associated with Customer's Accelize account.

  • "API" shall mean an application program interface.

  • "Applicable Law" shall mean any applicable country, federal, state, and local law, ordinance, statute, by-law, order, regulatory policy (including any requirement or notice of any regulatory body), compulsory guidance of a regulatory body with authority over the applicable party, rule of court or directors, binding court decision or precedent, or delegated or subordinate legislation, each of the above as may be amended or replaced from time to time.

  • "Authorized Resale Product" shall mean any product that an IPV authorizes for resale using the Accelize Marketplace.
  • "Authorized Reseller" shall mean the designated and approved reseller of an IPV's product(s) on the Accelize Marketplace
  • "Content" shall mean software (including machine images), data, text, audio, video, or pictures, or other images.

  • "Customer Marketplace Content" shall mean any content that Customer promotes, licenses, grants access to, or sells to Subscribers through the Accelize Marketplace, including but not limited to content delivered via a software-as-a-service model, any related technical support Customer provides, content description information, any related marketing or promotion materials, and any services Customer provides or related content description information. If Customer is an Authorized Reseller, this includes any Reseller Content. This does not include Account Information. 

  • "Documentation" shall mean the Customer guides and admin guides (in each case exclusive of content referenced via hyperlink) for the Services located at https://portal.accelize.com (and any successor or related locations designated by Accelize), as such Customer guides and admin guides may be updated by Accelize from time to time.

  • "Fees" shall mean any amounts payable to Accelize in exchange for services described under this Agreement, which may include Listing Fees and IPV Listing Fees. Fees applicable to Customer Marketplace Content shall be equal to the amounts set forth in the Accelize Listing Fees Schedule, as Accelize may update from time to time in accordance with this Agreement.

  • "Governing Laws" and "Governing Courts" shall mean, the laws of the state of California, and the county of Santa Clara.

  • "Indirect Taxes" shall mean applicable taxes and duties, including, without limitation, VAT, Service Tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax.

  • "Intellectual Property Vendor" or "IPV" shall mean a person or entity Customer has designated as a reseller of one (1) or more products for which Customer has a Paid Listing on the Accelize Marketplace.

  • "IPV Listing Fees" shall mean a percentage of the price payable to IPV by Reseller for the sale of Authorized Resale Products by IPV to Authorized Reseller, as determined in accordance with the Accelize Listing Fees Schedule, as Accelize may update from time to time in accordance with this Agreement.

  • "Listing Fees" shall mean the percentage of Transaction Proceeds (except for Transaction Proceeds from resale by Authorized Resellers of Authorized Resale Products) determined in accordance with the Accelize Listing Fees Schedule, as Accelize may update from time to time in accordance with this Agreement.

  • "Losses" shall mean any claims, damages, losses, liabilities, costs, and expenses, including reasonable attorneys' fees.

  • "Paid Listing" shall mean a listing or offer in the Accelize Marketplace where Accelize processes the payment of fees or other charges paid by Subscribers in connection with use of Customer Marketplace Content. This include offers made pursuant to an Accelize Marketplace Reseller Authorization Form or any controlling agreement between Accelize and Customer.

  • "Policy" or "Policies" shall mean the Acceptable Use Policy, Privacy Policy, the Service Terms, the Trademark Use Guidelines, all restrictions described in the Accelize Content and on the Accelize Sites, and any other policy or terms referenced in or incorporated into this Agreement, but does not include whitepapers or other marketing materials referenced on the Accelize Sites.

  • "Privacy Policy" shall mean the Accelize Privacy Policy, and any successor or related locations designated by Accelize, as it may be updated from time to time.

  • "Reseller Content" shall mean any software, content, or services an Authorized Reseller provides Subscribers in addition to any of the IPV's software or services.

  • "Service" or "Services" shall mean each or all of the services made available by Accelize or its affiliates or business partners, including those web services described in the Service Terms. Services do not include Third Party Content.

  • "Service Attributes" shall mean Service usage data related to Customer's account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics, and analytics.

  • "Service Level Agreement" shall means all Service Level Agreements that Accelize offer with respect to the Services, as they may be updated by Accelize from time to time.

  • "Service" or "Services" shall mean the services, including associated APIs, the Accelize Content, the Accelize Marks, and any other product or service provided by Accelize under this Agreement. Services do not include Third Party Content.

  • "Service Terms" shall mean the rights and restrictions for particular Services as delineated under the Accelize Service Terms, as may be updated by Accelize from time to time.

  • "Shortfall" shall mean the amount of the shortfall in available Transaction Proceeds from the resale of Authorized Resale Products from Authorized Reseller to Subscribers, where, after deduction of the IPV Listing Fees, the remaining Transaction Proceeds are less than the price of the Authorized Resale Products in the contemporaneous sale from IPV to Reseller.

  • "Similar Sales Channel" shall mean any sales or distribution channel through which Customer provides standard offers for content substantially similar to Customer Marketplace Content with similar license terms (e.g., annual, hourly, or monthly subscriptions), including direct sales through Customer's own website. If Customer is an Authorized Reseller, then Similar Sales Channels are sales or distribution channels that provide Customer with the same or greater discounts on Customer Marketplace Content.

  • "Subscriber" shall mean any individual or entity that, directly or indirectly through Customer, (a) accesses or uses Customer Marketplace Content or (b) otherwise accesses or uses the Services available through Customer as an Accelize Marketplace user. 

  • "Subscriber Information" shall mean any data or information to which Customer has access in connection with Accelize Marketplace or otherwise as a result of this Agreement, including data or information concerning any Subscriber, any Transaction, or any use of Services offered by Accelize with Customer Marketplace Content.

  • "Suggestions" shall mean all suggested improvements to the Services that Customer offers or provides to Accelize.

  • "Taxes" shall mean all sales, use, excise, import, export, value-added, withholding, and any other tax, or duty assessed, incurred, or required to be collected.

  • "Term" shall mean the term of this Agreement as described in Section 14.1 ("Term").

  • "Termination Date" shall mean the effective date of termination provided in accordance with Section 14 ("Term and Termination"), in a notice from either party to the other.

  • "Third Party Content" shall mean Content made available to Customer by any third party on the Accelize Sites or in conjunction with the Services.

  • "Trademark Use Guidelines" shall mean the guidelines and trademark license as delineated in the Accelize Trademark Use Guidelines, as they may be updated by Accelize from time to time.

  • "Transaction" shall mean any sale of, grant of license of, or granting of access to a Paid Listing.

  • "Transaction Proceeds" shall mean the gross sales proceeds which Accelize receives from any Transaction

2.2 Terms Defined in Separate Agreements. ​Terms capitalized but not defined in this Agreement shall have the meanings as specified in any referenced agreement or other document that accompanies such term. 

2.3 ​Undefined Terms. Those terms, acronyms, and phrases utilized in the relevant industries, including the information technology service industry or other pertinent business contexts, that are not otherwise defined in this Agreement shall be interpreted in accordance with their generally understood meaning in such industries or business contexts.

 

3. CUSTOMER'S USE OF THE ACCELIZE SERVICES. 

3.1 ​Generally. Customer may access and use the Services in accordance with this Agreement. Service Level Agreements and Service Terms apply to certain Services. Customer will comply with the terms of this Agreement, other relevant Accelize Policies as available on the Accelize Site, and all Applicable Law relevant to Customer's use of the Services.

3.2 ​​Customer Account. To access the Services, Customer must have an Accelize account associated with a valid email address and a valid form of payment ("Customer Account"). Unless explicitly permitted by the Service Terms, Customer may only create one (1) account per email address.

3.3 Third Party Content. Third Party Content may be used by Customer at Customer's election. Third Party Content is governed by this Agreement and, if applicable, separate terms and conditions accompanying such Third Party Content, which terms and conditions may include separate fees and charges.

 

4. CHANGES.

4.1 ​To the Services. Accelize may change or discontinue any of the Services from time to time, at its sole discretion. Accelize will provide Customer at least twelve (12) months' prior notice if Accelize intends to discontinue material functionality of a Service that Customer is using, or materially alter a customer-facing API that Customer is using in a backwards-incompatible fashion, except that this notice will not be required if the twelve (12) month notice period (a) would pose a security or intellectual property issue to Accelize or the Services, (b) is economically or technically burdensome, at Accelize's sole discretion, or (c) would cause Accelize to violate legal requirements.

4.2 ​To the Service Level Agreements. Accelize may change, discontinue, or add Service Level Agreements from time to time in accordance with Section 19 ("Modifications to the Agreement").

 

5. SECURITY AND DATA PRIVACY.

5.1 ​Accelize Security. Without limiting the provisions and limitations as set forth in Sections 6.2 ("Customer Marketplace Content") or 17 ("Disclaimer"), Accelize will implement reasonable and appropriate measures, at its sole discretion, designed to help Customer secure Customer Marketplace Content against accidental or unlawful loss, access, or disclosure.

5.2 ​Data Privacy. Customer may specify the Accelize regions in which Customer Marketplace Content will be stored. Customer consent to the storage of Customer Marketplace Content in, and transfer of Customer Marketplace Content into, such Accelize regions as Customer may select. Accelize will not access or use Customer Marketplace Content except as necessary to maintain or provide the Services, or as necessary to comply with the law or a binding order of a governmental body. Accelize will not disclose Customer Marketplace Content to any government or third party except in each case as necessary to comply with the law or a binding order of a governmental body, subject to Section 5.3 ("Service Attributes"). Unless it would violate the law or a binding order of a governmental body, Accelize will give Customer notice of any legal requirement or order referred to in this Section 5.2. Accelize use of Customer Account Information shall be in accordance with the Privacy Policy, and Customer consents to such usage. The Privacy Policy does not apply to Customer Marketplace Content.

5.3 ​Service Attributes. To provide billing and administration services, Accelize may process Service Attributes in the Accelize regions or regions where Customer utilizes the Services, as well as Accelize regions in the United States. To provide Customer with support services initiated by Customer and investigate fraud, abuse, or violations of this Agreement, Accelize may process Service Attributes where Accelize maintains support and investigation personnel. 

 

6. CUSTOMER'S RESPONSABILITIES. 

6.1 Customer Accounts. Except to the extent caused by Accelize's breach of this Agreement, Customer is responsible for all activities that occur under Customer's account, regardless of whether the activities are authorized by Customer or undertaken by Customer, Customer's employees, or a third party (including Customer's contractors, agents, or Subscribers). Accelize, and its affiliates and business partners, are not responsible for unauthorized access to Customer's account.

6.2 ​Customer Marketplace Content. Customer will ensure that Customer Marketplace Content, and Customer's and Subscribers' use of Customer Marketplace Content or the Services, will not violate any of the Policies or any Applicable Law. Customer, and not Accelize, shall be responsible for the development, content, operation, maintenance, and use of Customer Marketplace Content.

6.3 ​Customer Security and Backup. Customer is responsible for properly configuring and using the Services and otherwise taking appropriate action to secure, protect, and backup Customer's accounts and Customer Marketplace Content in a manner that will provide appropriate security and protection, including as appropriate use of encryption to protect Customer Marketplace Content from unauthorized access and routinely archiving Customer Marketplace Content. Accelize shall not be responsible for securing or backing up Customer Marketplace Content.

6.4 ​​Log-In Credentials and Access Keys. Accelize log-in credentials and private keys generated by the Services are for Customer's internal use only. Customer shall not sell, transfer, or sublicense log-in credentials or private keys generated by the Services to any other entity or person, except that Customer may disclose Customer's private key to Customer's agents and subcontractors performing work on Customer's behalf.

6.5 ​Subscribers. Customer will be deemed to have taken any action that Customer permits, assist, or facilitate any person or entity to take related to this Agreement, Customer Marketplace Content, or use of the Services. Customer is responsible for Subscribers' use of Customer Marketplace Content and the Services. Customer will ensure that all Subscribers comply with Customer's obligations under this Agreement and that the terms of Customer's agreement with each Subscriber is consistent with this Agreement. If Customer become aware of any violation of Customer's obligations under this Agreement caused by a Subscriber, Customer will immediately suspend access to Customer Marketplace Content and the Services by such Subscriber. Accelize does not provide any support or services to Subscribers unless Accelize has a separate agreement with Customer or a Subscriber obligating it to provide such support or services. 

 

7. CUSTOMER ACCOUNT FEES AND PAYMENT. 

7.1 ​Service Fees. For recurring plans, Accelize calculates and bills fees and charges monthly. Accelize may bill Customer more frequently for fees accrued if Accelize suspects that Customer account is fraudulent or at risk of non-payment, at its sole discretion. Customer will pay Accelize the applicable fees and charges for use of the Services as described on the Accelize Sites using one of the payment methods Accelize supports. All amounts payable by Customer under this Agreement will be paid without setoff or counterclaim, and without any deductions or withholdings. Fees and charges for any new Service or new feature of a Service will be effective when Accelize posts updated fees and charges on the Accelize Sites, unless Accelize expressly state otherwise in a notice. Accelize may increase or add new fees and charges for any existing Services by at least thirty (30) days' prior notice. Accelize may elect to charge Customer interest at the rate of one point five percent (1.5%) per month, or the highest rate permitted by law, if less, on all late payments.

7.2 ​Taxes. Each party will be responsible, as required under Applicable Law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All fees payable by Customer are exclusive of an indirect taxes. Accelize may charge and Customer will pay applicable indirect taxes that Accelize is legally obligated or authorized to collect from Customer. Customer will provide such information to Accelize as reasonably required to determine whether Accelize is obligated to collect any indirect taxes from Customer, at Accelize's request. Accelize will not collect, and Customer will not pay, any indirect tax for which Customer has furnished Accelize with a properly completed exemption certificate or a direct payment permit certificate for which Accelize may claim an available exemption from such indirect tax. All payments made by Customer to Accelize under this Agreement will be made free and clear of any deduction or withholding, as may be required by Applicable Law. If any such deduction or withholding (including, but not limited to, cross-border withholding taxes) is required on any payment, Customer will pay such additional amounts as are necessary so that the net amount received by Accelize is equal to the amount then due and payable under this Agreement. Accelize will provide Customer with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement. 

 

8. CUSTOMER SUSPENSION.

8.1 ​Generally. Accelize may suspend Customer's or any Subscriber's right to access or use any portion or all of the Services immediately upon notice to Customer if Accelize determines:

(a). ​Customer's or an Subscriber's use of the Services (i) poses a security risk to the Services or any third party, (ii) could adversely impact Accelize's systems, the Services, or the systems, or Content of any other Accelize customer, (iii) could subject Accelize, Accelize's affiliates, or any third party to liability, or (iv) could be fraudulent;

(b). ​​Customer, or any Subscriber, is in breach of this Agreement;

(c). ​Customer is in breach of Customer's payment obligations under Section 7 ("Customer Account Fees and Payment"); or

(d). ​Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Customer's assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.

8.2 ​Effect of Suspension. If Accelize suspend Customer's right to access or use any portion or all of the Services:

(a). ​Customer remains responsible for all fees and charges Customer incur during the period of suspension; and

(b). ​Customer will not be entitled to any service credits under any applicable Service Level Agreements for the period of suspension. 

 

9. MARKETPLACE ELIGIBILITY.

Customer must meet certain requirements to list Customer Marketplace Content: 

(i) Have a valid Accelize Customer Account;

(ii) Meet any eligibility requirements which may be listed on the Accelize Site; and

(iii) For Paid Listings, (A) be a business entity organized or incorporated in any of the supported countries listed in Schedule A, (B) have a verified bank account, and (C) have a valid VAT registration (where applicable).

 

10. VERIFICATION.

11. LISTINGS. 

Customer may list Customer Marketplace Content in the Accelize Marketplace subject to the following terms.

11.1 ​Review of Listings. Customer is responsible for evaluating and testing software in Customer Marketplace Content before submitting it to Accelize to confirm that it complies with this Agreement and Accelize Policies and operates properly with the Accelize Services. In connection with the purposes contemplated under this Agreement, Accelize may review and test Customer Marketplace Content submitted for listing in Accelize Marketplace at any time, including for security-related concerns and to check the accuracy of descriptions and other materials in Customer Marketplace Content. Accelize may accept or reject Customer Marketplace Content for any reason and at its sole discretion. Customer will cooperate with Accelize's review and testing.

11.2 ​Responsibility for Customer Marketplace Content. ​Customer is responsible for Customer Marketplace Content. Subject to Section 11.6 ("Fair Treatment of Subscribers") of this Agreement, Customer will establish the pricing, license rights, and other terms governing Subscriber's use of Customer Marketplace Content. Customer will ensure that all information about Customer Marketplace Content (including information about applicable fees) displayed on the Accelize Site is, at all times, accurate, complete, not misleading, and in compliance with Applicable Law. Except as provided in this Agreement, Accelize obtains no rights under this Agreement from Customer to Customer Marketplace Content.

11.3 ​Representations and Warranties. Customer represents and warrants that Customer has the lawful right to all Customer Marketplace Content that Customer promotes, licenses, sells, or to which Customer grants access to Subscribers through the Accelize Marketplace, and the sale or license of Customer Marketplace Content shall not be in violation of such rights or Applicable Law.

11.4 ​​Maintenance and Removal of Customer Marketplace Content.

11.4.1 ​Customer will ensure that all software in Customer Marketplace Content is up-to-date with current bug fixes and patches. If Accelize determines that an update to Customer Marketplace Content is necessary or desirable, Accelize may at its sole discretion contact Customer to request that Customer update Customer Marketplace Content and resubmit Customer Marketplace Content in accordance with Section 11.1 ("Review of Listings"). If Customer fails to update Customer Marketplace Content within the time specified in such notice from Accelize, Accelize shall have the right to remove Customer Marketplace Content from Accelize Marketplace and, if applicable, cancel any underlying subscriptions to Customer Marketplace Content that utilize any Accelize Services.

11.4.2 ​​Accelize may remove any listing or offer for Customer Marketplace Content from the Accelize Marketplace at any time for any reason.

11.4.3 ​Customer may remove a listing of or offer for Customer Marketplace Content from the Accelize Marketplace at any time in accordance with Accelize Policies. Upon removal of a listing or offer of Customer Marketplace Content, Customer will continue to support Customer Marketplace Content to current Subscribers for at least ninety (90) days following removal of the listing, unless otherwise stated in the terms with the Subscriber governing use of Customer Marketplace Content or until such Subscriber terminates their use of the Customer Marketplace Content if sooner. If Customer is an IPV, Customer will continue to support the Authorized Resale Products to Authorized Reseller until Authorized Reseller's obligations to its current Subscribers for such Authorized Resale Products are completed.

11.5 ​Accelize's Role. ​Customer will be the seller of record for Customer Marketplace Content. Accelize certifies that it will not retain, use, or disclose any underlying content of Customer Marketplace Content for any purpose other than providing Services to Customer in accordance with this Agreement. Except as expressly set forth in this Agreement, Accelize is not involved in any underlying transaction between Customer and any Subscriber. Accelize is not responsible for any dispute between Customer and any Subscriber, but may elect to assist in resolving any dispute between Customer and any Subscriber, at its sole discretion. If Accelize elects to assist in the resolution of a dispute, Customer agrees to cooperate with Accelize to resolve the dispute.

11.6 ​Fair Treatment of Subscribers. ​Customer must offer Customer Marketplace Content to Subscribers on terms and conditions (including, but not limited to, price) at least as favorable to the same offerings on Similar Sales Channels. Customer's total fees and charges for Customer Marketplace Content must not exceed the lowest total fees and charges Customer offers through any Similar Sales Channels, and Customer must make available in the Accelize Marketplace all of Customer's software and data products (including all versions) that Customer makes available through any Similar Sales Channel. Authorized Resellers shall notify Accelize if it cannot meet an obligation under this Section 11.6 because the IPV offers the Authorized Resale Product at a price higher than available in a Similar Sales Channel. Customer will provide all updates and new versions of Customer Marketplace Content (or Reseller Content, for Authorized Resellers), as soon as such updates or versions are available through a Similar Sales Channel.

11.7 ​Subscriber Ratings and Feedback. ​Accelize may implement mechanisms that rate, or allow Subscribers to rate and provide feedback about, Customer Marketplace Content (including information about Customer Marketplace Content that was removed from Accelize Marketplace), Customer, and Customer's performance in connection with Customer Marketplace Content and the Accelize Marketplace. Accelize may make such ratings and feedback publicly available.

11.8 ​Technical Support and Subscriber Service. ​Customer is solely responsible for technical support, if any, for Customer Marketplace Content. Customer is not obligated to provide technical support for Customer Marketplace Content. Accelize shall not provide Subscriber support or technical support to any Subscriber of Customer Marketplace Content.

11.9 ​Subscriber Information. ​Except as expressly set forth in this Section 11.9 or as otherwise expressly permitted by Accelize, Customer may use Subscriber Information only (i) to communicate with Subscribers who acquire rights to Customer Marketplace Content (A) to provide customer training and technical support and (B) for software or data subscription activation, configuration, and customization of content delivered via a software-as-a-service model, or (ii) for computation of Customer's internal sales metrics. Customer may not use Subscriber Information for any other purpose unless otherwise agreed in writing between Customer and such Subscriber. Customer may not, directly or indirectly, (a) disclose any Subscriber Information to any third party, except as necessary for Customer to perform Customer's obligations under this Agreement and only if Customer ensures that all recipients of such information use it only for that purpose and comply with any restrictions applicable to Customer, (b) use any Subscriber Information for any marketing or promotional purposes whatsoever, (c) use any Subscriber Information in any way inconsistent with applicable privacy policies, laws, or regulations, (d) contact a Subscriber to influence them to make an alternative purchase, (e) disparage Accelize, its affiliates, or any product of Accelize or its affiliates, or (f) target communications of any kind based on the intended recipient status as a Subscriber. Notwithstanding the foregoing, Customer may use Subscriber Information for Customer's marketing or promotional purposes in accordance with applicable privacy policies, laws, and regulations provided that Customer has obtained the express consent of Subscribers who will receive such marketing or promotional communications. Authorized Resellers may also share Subscriber information with IPVs for IPVs to use as described in (i) and (ii) of this Section 11.9 as long as such Authorized Reseller has obtained the consent of the Subscriber to share the Subscriber Information. This Section 11.9 does not prevent Customer from using other information that Customer acquire without reference to Subscriber Information for any purpose, even if that information is identical to Subscriber Information, as long as Customer do not target communications based on the intended recipient being a Subscriber.

11.10 Marketing Restriction. ​Customer may not include in Customer Marketplace Content any advertisements or promotions for, or opportunities for a Subscriber to purchase, products or services that Customer does not list in the Accelize Marketplace. If Customer chooses to market or make other references to the availability of Customer Marketplace Content, Customer must refer to the Accelize Marketplace or use an approved logo provided by Accelize, in compliance with the Accelize Trademark Use Guidelines.

11.11 Other Rights.

11.11.1 ​During the term of this Agreement and for so long as Subscribers may use Customer Marketplace Content, Customer grants Accelize a nonexclusive, worldwide license to (a) reproduce, distribute, display, transmit, promote, and otherwise digitally make available (via all means of online and electronic distribution), Customer Marketplace Content (Reseller Content, in the case of Authorized Resellers) to provide services to Customer in accordance with this Agreement, provided that no Subscriber shall be provided access to the underlying product of Customer Marketplace Content without an active subscription, (b) use (i) Customer's trademarks and logos in the form Customer provide them to Accelize (with any modifications to optimize their viewing), and (ii) limited portions of Customer Marketplace Content (Reseller Content, in the case of Authorized Resellers) (e.g., product description) for marketing Customer Marketplace Content or Accelize Marketplace, and (c) access, display, promote, and otherwise use Customer Marketplace Content (Reseller Content, in the case of Authorized Resellers) for demonstrating Customer Marketplace Content for potential Subscribers. 

11.11.2 ​ Use of or access to Customer Marketplace Content (Reseller Content, in the case of Authorized Resellers) by Accelize for the purposes specified in this Section 11 is under the foregoing license and the terms of this Agreement, and such license expressly supersedes any click-through, browse wrap, or other terms related to Customer Marketplace Content (Reseller Content, in the case of Authorized Resellers).

11.11.3 ​​The foregoing license shall be limited in all respects to the purposes and transactions contemplated under this Agreement. Accelize may permit its affiliates and independent contractors to exercise the license right set forth in this Agreement. Accelize assumes all liability and responsibility for its affiliates' and independent contractors' compliance with, or breach of, the terms of this Agreement.

11.12 ​Data Privacy. If the GDPR, CCPA, or other data privacy laws or regulations apply to Accelize's processing of Customer personal data in Customer Marketplace Content, then the Accelize Data Processing Addendum ("DPA") will apply, provided that:

11.12.1 ​​Accelize will process Customer's personal data in accordance with the instructions provided to it via configuration tools such as the Accelize vendor portal and APIs made available by Accelize for the Accelize Marketplace, which includes Accelize technical and organizational measures set forth in the DPA. Due to the nature of the Accelize Marketplace, Accelize may automatically apply certain technical measures which would otherwise be optional for Customer under the DPA.

12.12.2 ​​Unless otherwise instructed by Customer, Accelize shall process Customer's personal data in Customer Marketplace Content for an active subscription until its expiration or termination.

 

12. RESELLING ON ACCELIZE MARKETPLACE.

12.1 ​Eligibility. ​As agreed by Customer and another seller or provider on the Accelize Marketplace, Customer may (i) designate such other person or entity as a reseller of one (1) or more products for which Customer has a Paid Listing on Accelize Marketplace (in such case, Customer is an IPV), or (ii) accept a designation as a reseller of such other person or entity's product(s) on Accelize Marketplace (in such case, a Customers is an Authorized Reseller) in accordance with this Agreement. To be eligible to use this Accelize Marketplace feature, Authorized Reseller and IPV each must be an Accelize customer and each must accept the terms and conditions of this Agreement.

12.2 ​Authorized Resale Products. ​IPV must have a Paid Listing for each Authorized Resale Product. IPV's Paid Listing fulfills the requirement under Section 9 ("Marketplace Eligibility") of this Agreement for Authorized Reseller's eligibility to offer Authorized Resale Products through Accelize Marketplace. If IPV has submitted the Authorized Resale Product to Accelize, which has approved it for listing as set forth in Section 11.1 ("Review of Listings"), Authorized Reseller does not need to submit the same Authorized Resale Product to Accelize for review and approval.

12.3 ​Establishing Resellers. ​To designate or accept a designation as an Authorized Reseller, IPV and Authorized Reseller must complete and agree to the Accelize Marketplace Reseller Authorization Form, which shall identify the specific Authorized Resale Products and the price that Authorized Reseller will pay to IPV for the Authorized Resale Products consistent with the functionality available in the Accelize Marketplace. 

12.3.1 Authorized Reseller must make payments to the IPV directly. Accelize's processing of payments will be as described in Section 13.1 ("Processing of Transactions; Collection of Transactions Proceeds"). By designating an Authorized Reseller, IPV agrees to sell to Authorized Reseller the specified Authorized Resale Products for resale only and authorizes Authorized Reseller to issue offers for, and resell via offers, the same Authorized Resale Products to Subscribers in the Accelize Marketplace. By accepting a designation as an Authorized Reseller, Authorized Reseller agrees to purchase the Authorized Resale Products from IPV at the designated price set forth in the Accelize Marketplace Reseller Authorization Form solely for resale to Subscribers and to conduct such resales using offers in Accelize Marketplace.

12.3.2 ​IPV and Authorized Reseller may, as agreed between the IPV and Authorized Reseller, specify special pricing that Authorized Reseller will pay to IPV for a custom resale transaction under which Authorized Reseller will issue an offer for, and resell via such offer, the specified product(s) to a designated Subscriber by completing and agreeing to a Custom Resale Transaction Request. Accelize is not a party to any such agreement between IPV and Authorized Reseller.

12.4 ​Resale Transactions. ​Each resale of an Authorized Resale Product by Authorized Reseller to a Subscriber includes a contemporaneous sale of the same Authorized Resale Product from IPV to Authorized Reseller. Each such sale and resale is a Transaction.

12.5 ​Use of Data. ​Unless otherwise agreed by the applicable Subscriber, as between Authorized Reseller and IPV, Subscribers are purchasing Authorized Resale Products only from Authorized Reseller and such resales by Authorized Reseller do not create a Subscriber relationship with IPV. Authorized Reseller will not, except as expressly permitted under Section 11.9 ("Subscriber Information"), disclose to IPV any Subscriber Information arising from Authorized Reseller's resales of Authorized Resale Products to Subscribers or allow IPV to use any such Subscriber Information. IPV and Authorized Reseller each represent, warrant, and covenant that any data or information transmitted or provided to Accelize or to the IPV or Authorized Reseller (as appropriate), including any such data or information that Accelize may convey to IPV or Authorized Reseller for the other in connection with this Accelize Marketplace feature or any Transactions contemplated by this Section 12, whether proposed or actual, was collected, stored, processed, disclosed, and used consistent, in all ways, with applicable privacy policies, laws, and regulations, and that the receipt, storage, use, processing, disclosure, or transmission of such data by Accelize or others in connection with this Accelize Marketplace feature and the Transactions contemplated by the this Section 12 does not require and does not depend on the need to obtain any additional consents, authorization, or other rights or permissions from any other person or entity.

12.6 ​Termination of Reseller Authorization.​ Either IPV or Authorized Reseller (the "Terminating Party") may notify Accelize at any time that it wishes to terminate an applicable Accelize Marketplace Reseller Authorization. The Terminating Party represents and warrants that its termination of any Accelize Marketplace Reseller Authorization complies with the terms and conditions of its agreement with Authorized Reseller or IPV, as applicable.

12.7 ​Implementation of Termination. ​Upon receipt of a Terminating Party's termination notice (as set forth under Section 12.6 ("Termination of Reseller Authorization")) or upon any termination of this Agreement by IPV or Authorized Reseller, Accelize will implement such termination within a reasonable period by (i) removing (a) Authorized Reseller's ability to purchase Authorized Resale Products from IPV under the applicable Accelize Marketplace Reseller Authorization Form or any controlling agreement between Accelize and Customer, and (b) Authorized Reseller's ability to issue offers for the same for resale to Subscribers, and (ii) removing any offers for Authorized Resale Products issued by Authorized Reseller that have not yet been consummated. Once termination is implemented, Accelize will not facilitate any further Transactions as described in the applicable Accelize Marketplace Reseller Authorization Form or any controlling agreement with Accelize. However, active entitlements obtained through earlier Transactions will not be affected by termination of any Accelize Marketplace Reseller Authorization Form. In addition, IPV and Authorized Reseller acknowledge and agree that Accelize may continue to facilitate Transactions under any applicable Accelize Marketplace Reseller Authorization Form any controlling agreement between Accelize and Customer until implementation of a termination is complete, and this Agreement will continue to apply to such Transactions.

12.8 ​No Interference. ​Neither IPV nor Authorized Reseller will interfere with or prejudice the other's performance of its obligations under this Agreement before or after termination of any Accelize Marketplace Reseller Authorization.

 

13. ADDITIONAL TERMS FOR PAID LISTINGS. 

13.1 Processing of Transactions; Collection of Transaction Proceeds. ​Customer appoints Accelize as Customer's payment processing agent for the limited purpose of receiving payments on Customer's behalf. Accelize may process, on Customer's behalf, all payments and refunds for Transactions and collect the applicable Transaction Proceeds. Receipt of funds by Accelize on Customer's behalf for Customer Marketplace Content will be deemed receipt of funds by Customer and will satisfy the obligations owed to Customer in the amount of the applicable payment. Accelize does not guarantee payment on behalf of any Subscriber or Authorized Reseller, including payment owed to IPV from an Authorized Reseller. Customer will ensure that all fees and charges payable for Customer Marketplace Content are billed and collected through Accelize and Customer will not offer or establish any alternative means of payment. Accelize may impose transaction limits on some or all Subscribers or Authorized Resellers relating to the value of any Transaction or disbursement, the cumulative value of all Transactions or disbursements during a time period, or the number of Transactions per day or other time period. Accelize may withhold for investigation, or refuse to process, any of Customer's Transactions that it suspects to be fraudulent, unlawful, or otherwise in violation of the terms of this Agreement or any other Accelize Policy. Accelize will not pay Customer for any use of Customer Marketplace Content for Accelize testing, support, demonstration, or other sales support of Customer Marketplace Content as necessary to exercise its rights under Sections 11.1 ("Review of Listings") and 11.11 ("Other Rights") of this Agreement.

13.2 Remittance of Transaction Proceeds to Customer. At the beginning of each calendar month, Accelize shall pay to Customer all previously unpaid Transaction Proceeds fully collected as of seven (7) days before the date of such payment, provided that Transaction Proceeds from the resale of Authorized Resale Products will be subject to Section 13.3 ("Resale Transaction Proceeds"). Accelize shall deduct from each such payment any Fees due to Accelize related to Customer Marketplace Content and any associated Transactions. Accelize may also withhold, deduct, or setoff any amounts payable by Customer to Accelize against any Transaction Proceeds. No Transaction Proceeds will be payable for Accelize's use of Customer Marketplace Content for the purposes described in Section 11.11 ("Other Rights"). All payments to Customer will be sent through electronic transfer to Customer's designated bank account. If there is an error in the processing of any Transaction, Customer authorizes Accelize to debit or credit Customer's designated bank account to correct such error, provided that any such correction is made in accordance with Applicable Law. If Accelize cannot debit Customer's designated bank account for any reason, Customer authorizes Accelize to resubmit the debit, plus any applicable fees, to any other bank account or payment instrument that Customer may have on file with Accelize or to deduct the debit and applicable fees from future Transaction Proceeds.

13.3 Resale Transaction Proceeds. Amounts payable to IPVs from Authorized Resellers for the sale of Authorized Resale Products will be disbursed from Transaction Proceeds that Accelize collects from the contemporaneous resale of such Authorized Resale Products by Authorized Resellers. Accelize does not separately collect payment from Authorized Resellers of the price payable to IPVs for sales of Authorized Resale Products. Accelize will disburse Transaction Proceeds from each resale of an Authorized Resale Product in the following order: Accelize will (i) deduct the IPV Listing Fee for the contemporaneous sale from IPV to Authorized Reseller, (ii) disburse remaining Transaction Proceeds to IPV up to the price for the Authorized Resale Product payable by the Authorized Reseller as set forth in the applicable Accelize Marketplace Reseller Authorization Form or any controlling agreement between Accelize and Customer, and (iii) disburse any remaining Transaction Proceeds to Authorized Reseller. Accelize does not guarantee payment to IPV on behalf of Authorized Reseller. Without limiting the generality of the foregoing, IPV will bear the sole risk of payment in full from Authorized Reseller. If, following payment from Accelize to IPV of Transaction Proceeds as set forth above, there is any Shortfall, such Shortfall must be paid by the Authorized Reseller. Accelize has no obligation or liability for any such Shortfall or Authorized Reseller debt.

13.4 ​Taxes. Accelize may collects Taxes from Subscribers on Customer's behalf and remits such payment directly to Customer, upon Customer's acceptance of such feature. Customer is responsible for correctly establishing the parameters for collection and validating the Taxes collected and for payment of all Taxes in connection with all Transactions and Customer Marketplace Content to the relevant tax authorities. Accelize is not responsible for remitting Taxes to any authority for any Transaction, or reporting any information (including the payment of Taxes) for any Transaction, and declines all related liability. Notwithstanding the foregoing, if Accelize is legally obligated by a valid taxing authority to collect and remit Taxes, it will do so and provide Customer and any Subscribers with a compliant tax invoice. All fees and payments payable by Customer to Accelize under this Agreement are exclusive of any applicable Taxes, deductions, or withholdings (including but not limited to cross-border withholding taxes).

13.5 ​Risk of Loss. ​Customer will bear all risks of fraud or loss, including the risk of chargebacks or credit card fraud associated with Customer's sale or license of Customer Marketplace Content. If Accelize receives a chargeback or determines, at its sole discretion, that a payment related to a Transaction resulted from fraud, Customer will promptly reimburse Accelize for the total amount of any applicable Transaction Proceeds paid to Customer, as well as all credit card association, bank, or other payment processing, re-presentment, and/or penalty fees associated with the original Transaction.

13.6 ​Cancellations and Refunds. ​Unless set forth otherwise in a controlling Accelize Policy, Customer will post Customer's cancellation and refund policy in the listing or offer for Customer Marketplace Content in Accelize Marketplace. At a minimum, this cancellation and refund policy must: (a) allow Subscribers who subscribe to Customer Marketplace Content to exercise any rights to cancel any subscription to Customer Marketplace Content through the Accelize Site, and (b) comply with the other requirements of this Agreement or other Accelize Policy. Customer will accept and process cancellations of, and provide refunds and adjustments for, Customer Marketplace Content in accordance with the cancellation and refund policy posted at the time of the applicable Transaction. Customer will route all Transaction refund and adjustment payments through Accelize. Accelize will credit the applicable account, and Customer will reimburse Accelize for all amounts so refunded.

13.7 ​Non-Paid Listings. ​All non-Paid Listings of Customer Marketplace Content (e.g., free trials) must have a corresponding Paid Listing in Accelize Marketplace no later than ninety (90) days after the initial listing of the non-Paid Listing version, unless Accelize determines that it cannot accept Paid Listings from Customer, including for regulatory reasons. Any license governing software or data (as applicable) made available via a non-Paid Listing, regardless of the channel used to sell such license, must allow the licensee to use such software or data on Accelize without additional fees (including additional support fees), costs, requirements, or restrictions. 

 

14. TERM AND TERMINATION.

14.1 Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 14. Following termination of this Agreement, Customer will allow existing Subscribers to continue to use Customer Marketplace Content on terms and conditions (including price) at least as favorable as those in effect at the time of termination (but in any event consistent with the requirements of Section 11.2 ("Responsibility for Customer Marketplace Content")), and on Customer's behalf, Accelize will continue to process all payments and refunds for Transactions and collect the applicable Transaction Proceeds in accordance with Section 13 ("Additional Terms for Paid Listing"); provided, however, that upon at least ninety (90) days' prior notice to existing Subscribers, Customer may stop making Customer Marketplace Content available to existing Subscribers if Customer is no longer making products similar to Customer Marketplace Content commercially or otherwise publicly available on any Similar Sales Channel. Notwithstanding as otherwise set forth in this Agreement, Accelize may terminate an existing Subscriber's use of Customer Marketplace Content at any time in accordance with any agreement Accelize may have with the Subscriber or upon termination of this Agreement for any or no reason.

14.2 ​Termination for Convenience. Customer may terminate this Agreement for any reason by providing Accelize notice and closing Customer's account for all Services for which Accelize provide an account closing mechanism. Accelize may terminate this Agreement for any reason by providing Customer at least thirty (30) days' advance notice.

14.3 ​​Termination for Cause.

14.3.1 ​Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of thirty (30) days from receipt of notice by the other party. No later than the Termination Date, Customer will close Customer's account.

14.3.2 ​Accelize may terminate this Agreement immediately upon notice to Customer for cause (i) if Accelize has the right to suspend under Section 8 ("Customer Suspension"), (ii) if Accelize's relationship with a third party partner who provides software or other technology Accelize may use to provide the Services expires, terminates, or requires Accelize to change the way Accelize provides the software or other technology as part of the Services, or (iii) in order to comply with Applicable Law or the request of governmental entities.

14.4 Effect of Termination.

14.4.1 ​Generally. Upon the Termination Date:

(a). ​Except as provided in Section 14.5 ("Post-Termination"), all Customer's rights under this Agreement immediately terminate;

(b). ​Customer remains responsible for all fees and charges Customer has incurred through the Termination Date, and is responsible for any fees and charges Customer incurred during the post-termination period described in Section 9.5 ("Post-Termination");

(c). ​Customer will immediately return or, if instructed by Accelize, destroy all Accelize Content in Customer's possession; and

(d). ​Sections 6.1 ("Customer Accounts"), 7 ("Customer Account Fees and Payment"), 14.4 ("Effect of Termination"), 15 ("Proprietary Rights") (except the license granted to Customer in Section 15.3 ("Services License")), 16 ("Indemnification"), 17 ("Disclaimer"), 18 ("Limitation of Liability"), and 20 ("Miscellaneous") will continue to apply in accordance with the terms as set forth in this Agreement.

14.5 ​Post-Termination. Unless Accelize terminates Customer's use of the Services pursuant to Section 14.3 ("Termination for Cause"), during the thirty (30) days following the Termination Date: (a) Accelize will not take action to remove from the Accelize systems any of Customer Marketplace Content as a result of the termination; and (b) Accelize will allow Customer to retrieve Customer Marketplace Content from the Services only if Customer has paid all amounts due under this Agreement.

14.6 ​Post-Termination Payments. For any use of the Services after the Termination Date, the terms of this Agreement will apply and Customer will pay the applicable fees at the rates specified under Section 7 ("Customer Account Fees and Payments").

 

15. PROPRIETARY RIGHTS.

15.1 ​Customer Marketplace Content. Except as provided in this Section 15, Accelize obtains no rights under this Agreement from Customer or Customer's licensors to Customer Marketplace Content. Customer consents to Accelize's use of Customer Marketplace Content to provide the Services to Customer and any Subscribers.

15.2 Adequate Rights. Customer represent and warrant to Accelize that: (a) Customer or Customer's licensors own all right, title, and interest in and to Customer Marketplace Content and Suggestions; (b) Customer has all rights in Customer Marketplace Content and Suggestions necessary to grant the rights contemplated by this Agreement; and (c) none of Customer Marketplace Content or Subscribers' use of Customer Marketplace Content or the Services will violate Accelize's Acceptable Use Policy.

15.3 Services License. Accelize or Accelize's licensors own all right, title, and interest in and to the Services, and all related technology and intellectual property rights. Subject to the terms of this Agreement, Accelize grants Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following: (a) access and use the Services solely in accordance with this Agreement; and (b) copy and use the Accelize Content solely in connection with Customer's permitted use of the Services. Except as provided in this Section 15.3, Customer obtains no rights under this Agreement from Accelize, Accelize's affiliates, or Accelize's licensors to the Services, including any related intellectual property rights. Some Accelize Content and Third Party Content may be provided to Customer under a separate license, such as the Apache License Version 2.0, or other open source license. In the event of a conflict between this Agreement and any separate license, the separate license will prevail with respect to the Accelize Content or Third Party Content that is the subject of such separate license.

15.4 ​License Restrictions. Neither Customer nor any Subscriber will use the Services in any manner or for any purpose other than as expressly permitted by this Agreement. Neither Customer nor any Subscriber will, or will attempt to, (a) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Content included in the Services (except to the extent Content included in the Services is provided to Customer under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any software included in the Services (except to the extent Applicable Law does not allow this restriction), (c) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the Services. Customer may only use the Accelize Marks in accordance with the Trademark Use Guidelines. Customer will not misrepresent or embellish the relationship between Accelize and Customer (including by expressing or implying that Accelize supports, sponsors, endorses, or contributes to Accelize and Customer except as expressly permitted by this Agreement. 

15.5 ​Suggestions. If Customer provide any Suggestions to Accelize or Accelize's affiliates, Accelize and Customer affiliates will be entitled to use the Suggestions without restriction. Customer hereby irrevocably assign to Accelize all right, title, and interest in and to the Suggestions and shall provide Accelize with any assistance it may require to document, perfect, and maintain Accelize's rights in the Suggestion. 

 

16. INDEMNIFICATION. 

16.1 ​​General Indemnification. Customer will defend, indemnify, and hold harmless Accelize and its employees, officers, directors, and representatives, Accelize's affiliates and licensors and each of their respective employees, officers, directors, and representatives, from and against any Losses arising out of or relating to any third party claim concerning: (a) Customer's or any Subscribers' use of the Services, including any activities under Customer's Accelize account and use by Customer's employees and personnel, (b) breach of this Agreement or violation of Applicable Law by Customer, Subscribers, or Customer Marketplace Content; (c) a dispute between Customer and any Subscriber;(d) alleged infringement, misappropriation, or violation of any third party rights by Customer Marketplace Content (Reseller Content, in the case of Authorized Resellers), or by the copying, use, distribution, sale, development, design, production, advertising, or marketing of Customer Marketplace Content (Reseller Content, in the case of Authorized Resellers), (e) a dispute between Customer and any IPV, Reseller, or Subscriber to Customer Marketplace Content, (f) any royalties or payments due by Customer to any third parties as a result of this Agreement, (g) any actual or alleged violation of law, gross negligence, willful misconduct, or fraud by Customer in connection with Customer Marketplace Content, (h) any actual or alleged breach of Customer's representations, warranties, or covenants set forth in this Agreement, including but not limited to Section 11.3 ("Representations and Warranties"), and (i) any claim or demand for payment of any Taxes imposed in connection with any Transaction, and for any fines, penalties, or similar charges imposed as a result of Customer's failure to collect, remit, or report any Taxes in connection with any Transaction. Customer will reimburse Accelize for reasonable attorneys' fees, as well as Accelize's employees' and contractors' time and materials spent responding to any third party subpoena or other compulsory legal order or process associated with third party claims described in (a) through (i) above at Accelize's then-current hourly rates.

16.2 ​Process. ​Accelize will promptly notify Customer of any claim subject to Section 16.1 ("General Indemnification"), but Accelize's failure to promptly notify Customer will only affect Customer's obligations to the extent that Accelize's failure prejudices Customer's ability to defend the claim. The parties must reasonably cooperate with the other in the defense and settlement of the claim. Customer may (a) use counsel of Customer's own choosing (subject to Accelize's written consent) to defend against any claim, and (b) settle the claim as Customer deem appropriate as long as Customer obtains Accelize's prior written consent before entering into any settlement. Accelize may also assume control of the defense and settlement of the claim at any time. In no event will a party agree to any settlement of any claim that involves any commitment without the written consent of the other party. 

16.3 ​Intellectual Property Indemnification. 

16.3.1 ​Subject to the limitations in this Section 16, Accelize will defend Customer and Customer's employees, officers, and directors against any third party claim alleging that the Services infringe or misappropriate that third party's intellectual property rights, and will pay the amount of any adverse final judgment or settlement.

16.3.2 ​Subject to the limitations in this Section 16, Customer will defend Accelize, its affiliates, and their respective employees, officers, and directors against any third party claim alleging that any of Customer Marketplace Content infringes or misappropriates that third party's intellectual property rights, and will pay the amount of any adverse final judgment or settlement.

16.3.3 ​Neither party will have obligations or liability under this Section 16.3 arising from infringement by combinations of the Services or Customer Marketplace Content, as applicable, with any other product, service, software, data, content, or method. In addition, Accelize will have no obligations or liability arising from Customer's or any Subscriber's use of the Services after Accelize has notified Customer to discontinue such use. The remedies provided in this Section 16.3 are the sole and exclusive remedies for any third party claims of infringement or misappropriation of intellectual property rights by the Services or by Customer Marketplace Content.

16.3.4 ​For any claim covered by Section 16.3 ("Intellectual Property Indemnification"), Accelize will, at its election, either: (i) procure the rights to use that portion of the Services alleged to be infringing; (ii) replace the alleged infringing portion of the Services with a non-infringing alternative; (iii) modify the alleged infringing portion of the Services to make it non-infringing; or (iv) terminate the allegedly infringing portion of the Services or this Agreement.

 

17. DISCLAIMER. 

THE SERVICES ARE PROVIDED "AS IS." EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED, OR WAIVED, ACCELIZE, ITS AFFILIATES, AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE SERVICES OR THIRD PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICES OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.

 

LIMITATIONS OF LIABILITY. 

18.1 ​Damages Cap. EXCEPT FOR OBLIGATIONS ARISING UNDER THIS SECTION 18, (I) ACCELIZE'S AND ACCELIZE'S AFFILIATES' AND LICENSORS' AGGREGATE LIABILITY IN CONNECTION WITH ANY CLAIM UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL TRANSACTION PROCEEDS ACCRUED BY ACCELIZE FROM CUSTOMER UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD PRECEDING SUCH CLAIM, AND (II) NEITHER ACCELIZE'S NOR ANY OF ITS AFFILIATES' OR LICENSORS' AGGREGATE LIABILITY FOR ALL CLAIMS UNDER THIS AGREEMENT WILL EXCEED THE LOWER OF (A) THE TOTAL TRANSACTION PROCEEDS ACCRUED BY ACCELIZE FROM CUSTOMER UNDER THIS AGREEMENT OR (B) TEN MILLION DOLLARS ($10,000,000). THE LIMITATIONS IN THIS SECTION 18 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

 

19. MODIFICATIONS TO THE AGREEMENT. 

Notwithstanding anything in this Agreement to the contrary, Accelize may update or modify the terms of this Agreement (including any related Policies) at any time by posting a revised version on the Accelize Sites or by otherwise notifying Customer in accordance with Section 20.10 ("Notice to Customer"); provided, however, that Accelize will provide (i) at least thirty (30) days' notice prior to the effective date of any change which Accelize believes may cause Customer to be in noncompliance with the terms of this Agreement, (ii) at least sixty (60) days' notice prior to the effective date of any changes that would result in a modification of the Fees applicable to Customer Marketplace Content, and (iii) at least ninety (90) days' advance notice for adverse changes to any Service Level Agreement. Subject to these advance notice requirements (i) - (iii), the modified terms will become effective upon posting or, if Accelize notifies Customer by email, as stated in the email message. By continuing to use the Services and/or the Accelize Marketplace after the effective date of any modifications to this Agreement, Customer agrees to be bound by the modified terms. It is Customer's responsibility to check the Accelize Sites regularly for modifications to this Agreement. Accelize last modified this Agreement on the date listed at the beginning of this Agreement. 

 

20. MISCELLANEOUS. 

20.1 ​​Assignment. ​Customer will not assign or otherwise transfer this Agreement or any of Customer rights and obligations under this Agreement without Accelize's prior written consent. Any assignment or transfer in violation of this Section 20.1 will be void. Accelize may assign this Agreement without the Customer's consent (a) in connection with a merger, acquisition, or sale of all or substantially all of Accelize's assets or (b) to any affiliate or as part of a corporate reorganization, and effective upon such assignment, the assignee is deemed substituted for Accelize as a party to this Agreement and Accelize is fully released from all of its obligations and duties to perform under this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of, the parties and their respective permitted successors and assigns.

20.2 ​Entire Agreement. ​This Agreement incorporates Accelize's Policies by reference and is the entire agreement between Customer and Accelize regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between Customer and Accelize, whether written or verbal, regarding the subject matter of this Agreement. Accelize will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) including, for example, any term, condition or other provision (a) submitted by Customer in any order, receipt, acceptance, confirmation, correspondence, or other document, (b) related to any online registration, response to any Request for Bid, Request for Proposal, Request for Information, or other questionnaire, or (c) related to any invoicing process that Customer submits or require Accelize to complete. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control, except that the Service Terms will control over this document.

20.3 ​Force Majeure. ​Accelize and Accelize's affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond their reasonable control, including acts of war, labor disputes, or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, civil disorder, earthquake, fire, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, epidemics, pandemics, or other outbreaks of infectious disease, or any other public health crisis, including quarantine or other employee restrictions, and general strikes throughout the trade.

20.4 Governing Law. ​This Agreement shall be governed by and construed in accordance with the controlling laws of (i) France, if Customer is domiciled in a country in Europe, or (ii) the United States of America and the State of California, if Customer is domiciled anywhere else, in each case without reference to conflict of law rules. The courts in Paris, France shall have exclusive jurisdiction to adjudicate any dispute arising out of the Agreement if French law applies and the Federal and state courts within San Jose, California shall have exclusive jurisdiction to adjudicate any dispute arising out of the Agreement if United States and the State of California laws apply. Each party hereto expressly consents to the personal jurisdiction of, and venue in, such courts and service of process being effected upon it by registered mail sent to the Legal Notice address provided by such party under the Agreement. The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) and the Uniform Computer Information Transaction Act or similar federal or state laws or regulations shall not apply to the Agreement nor to any dispute or transaction arising out of the Agreement.

20.5 ​Disputes. Any dispute or claim relating in any way to Customer's use of the Services, or to any products or services sold or distributed by Accelize, will be adjudicated in the Governing Courts, and Customer consents to exclusive jurisdiction and venue in such Governing Courts.

20.6 ​Trade Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including all such laws and regulations that apply to a United States company, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control ("OFAC"). For clarity, Customer is solely responsible for compliance related to the manner in which Customer choose to use the Services, including Customer's transfer and processing of Customer Marketplace Content, the provision of Customer Marketplace Content to Subscribers, and the Accelize region in which any of the foregoing occur. Customer represent and warrant that Customer and Customer's financial institutions, or any party that owns or controls Customer or Customer's financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the United States Government (e.g., the OFAC Specially Designated Nationals List and Foreign Sanctions Evaders List of the United States Department of Treasury, and the Entity List of the United States Department of Commerce), the European Union or its Member States, or other applicable government authority.

20.7 ​Independent Contractors; Non-Exclusive Rights. ​Accelize and Customer are independent contractors and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party, and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party's products or services.

20.8 ​Language. ​All communications and notices made or given pursuant to this Agreement must be in the English language. If Accelize provide a translation of the English language version of this Agreement, the English language version of the Agreement shall control if there is any conflict.

20.9 ​​Confidentiality and Publicity. Customer may use Accelize Confidential Information only in connection with Customer's use of the Services as permitted under this Agreement. Customer will not disclose Accelize Confidential Information during the Term or at any time during the five (5) year period following the end of the Term, except that should Customer be privy to any Accelize trade secrets, Customer shall keep such trade secrets protected until such time as they no longer qualify as trade secrets. Customer will take all reasonable measures to avoid disclosure, dissemination, or unauthorized use of Accelize Confidential Information, including, at a minimum, those measures Customer take to protect Customer's own confidential information of a similar nature. Customer will not use any trade name, trademark, service mark, logo or commercial symbol, or any other proprietary rights belonging to Accelize or any of its affiliates in any manner without prior written authorization, and such use will be consistent with the Accelize Trademark Use Guidelines. For the sake of clarity, any Fees charged by Accelize for Customer's use of Accelize Marketplace is Accelize's confidential information. Customer will not issue press releases or publicity relating to Accelize or this Agreement, or reference Accelize or its affiliates in any brochures, advertisements, client lists, or other promotional materials without Accelize's prior written permission.

20.10 ​Notice to Customer. ​ Accelize may provide any notice to Customer under this Agreement by: (i) posting a notice on the Accelize Sites; or (ii) sending a message to the email address then associated with Customer's account. Notices Accelize provide by posting on the Accelize Sites will be effective upon posting and notices Accelize provides by email will be effective when Accelize sends the email. It is Customer's responsibility to keep Customer's email address current. Customer will be deemed to have received any email sent to the email address then associated with Customer's account when Accelize sends the email, whether or not Customer actually receives the email.

20.11 ​Notice to Accelize. To give Accelize notice under this Agreement, Customer must contact Accelize by personal delivery, overnight courier, or registered or certified mail to the mailing address, as provided herein. Accelize may update the address for notices to Accelize by posting a notice on the Accelize Sites. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one (1) business day after they are sent. Notices provided registered or certified mail will be effective three (3) business days after they are sent.

Accelize, Inc.
2570 N. 1st Street, Suite 218
San Jose, CA 95131

 

20.12 ​​No Third Party Beneficiaries. Except as set forth in Section 16 ("Indemnification"), this Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.

20.13 ​United States Government Rights. If applicable, the Services are provided to the United States Government as "commercial items," "commercial computer software," "commercial computer software documentation," and "technical data" with the same rights and restrictions generally applicable to the Services. If Customer is using the Services on behalf of the United States Government and these terms fail to meet the United States Government's needs or are inconsistent in any respect with federal law, Customer will immediately discontinue Customer's use of the Services. The terms "commercial item" "commercial computer software," "commercial computer software documentation," and "technical data" are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.

20.14 ​Currency. Unless otherwise set forth separately in writing between the parties, all currency shall be in United States dollars. 

20.15 ​No Waivers. The failure by Accelize to enforce any provision of this Agreement will not constitute a present or future waiver of such provision, nor limit Accelize's right to enforce such provision at a later time. All waivers by Accelize must be in writing to be effective.

20.16 ​Severability.  If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect. 

 

 

SCHEDULE A

SUPPORTED COUNTRIES

 

Americas (i.e., countries of North and South America not otherwise listed)

Asia (i.e., countries in Asia not otherwise listed)

Australia

Austria

Belgium

Canada

Czech Republic

Denmark

Estonia

Europe (i.e., countries of Europe not otherwise listed)

Finland

France

Germany

Greece

Hong Kong

Ireland

Italy

Japan

Latvia

Lithuania

Luxembourg

Mexico

Netherlands

New Zealand

Norway

Oceania (i.e., countries of Oceana not otherwise listed)

Poland

Portugal

Singapore

Slovakia

Slovenia

Spain

Sweden

Switzerland

United Kingdom

United States of America