Last updated: April 9th, 2020
These Terms and Conditions for Accelize Marketplace Sellers (this “Agreement”) govern your listing or offer of Your Marketplace Content in Accelize Marketplace and are an agreement between Accelize (also referred to as “we”, “us” or “our”) and you or the entity you represent (“you” or “your”). “Accelize” means either (i) Accelize, Inc., a Californian corporation, with offices at 2570 N 1st Street, Suite 218, San Jose, CA 95131, U.S.A, if you are domiciled in a country outside of Europe, or (ii) Accelize SAS, a French société par actions simplifiée, with offices at 805 Rue Guillibert de la Lauzière, 13290 Aix-en-Provence, France, if you are domiciled in a country within Europe. This Agreement takes effect when you click an “I Accept” button or checkbox presented with these terms or, if earlier, when you use any of the Service Offerings (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Please see Section 11 for definitions of certain capitalized terms used in this Agreement.
You must meet the following eligibility requirements to offer Your Marketplace Content through Accelize Marketplace.
For purposes of listing Your Marketplace Content, you must: (a) if you have a Paid Listing, be a business entity organized or incorporated in any of the supported countries listed in Schedule A and have a verified bank account and (where applicable) a valid VAT registration; (b) have a valid Accelize customer account; and (c) meet any other eligibility requirements specified in Accelize Marketplace Listing Guidelines on the Accelize Site.
You may list Your Marketplace Content in the Accelize Marketplace subject to the following terms:
3.1 Review of Listings. You are responsible for evaluating and testing software in Your Marketplace Content before submitting it to Accelize to confirm that it complies with this Agreement and our Policies and operates properly with the services offered by Accelize. In connection with the purposes contemplated under this Agreement, we may review and test Your 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 Your Marketplace Content. We may accept or reject Your Marketplace Content for any reason. You will cooperate with our review and testing.
3.2 Responsibility for Your Marketplace Content. You are responsible for Your Marketplace Content. Subject to Section 3.6 of this Agreement, you will establish the pricing, license rights and other terms governing Accelize Marketplace customers' ("Subscribers") use of Your Marketplace Content. You will ensure that all information about Your 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 you to Your Marketplace Content.
3.3 Representations and Warranties. You represent and warrant that you have the lawful right to any of Your Marketplace Content that you promote, license, sell or grant access to Subscribers through Accelize Marketplace, and the sale or license of Your Marketplace Content shall not be in violation of such rights or applicable laws and regulations.
3.4 Maintenance and Removal of Your Marketplace Content
3.4.1 You will ensure that all software in Your Marketplace Content is up-to-date with current bug fixes and patches. If Accelize determines that an update to Your Marketplace Content is necessary or desirable, we may, but do not need to, contact you to request that you update Your Marketplace Content and resubmit Your Marketplace Content in accordance with Section 3.1. If you fail to update Your Marketplace Content within the time specified in such notice, then Accelize reserves the right to remove Your Marketplace Content from Accelize Marketplace and (if applicable) cancel any underlying subscriptions to Your Marketplace Content that utilize any services offered by Accelize.
3.4.2 You may remove a listing of or offer for Your Marketplace Content from Accelize Marketplace at any time in accordance with Accelize Marketplace Listing Guidelines. We may also remove any listing or offer for Your Marketplace Content from Accelize Marketplace at any time for any reason.
3.4.3 Any removal by you or us of any listing or offer of Your Marketplace Content from Accelize Marketplace will apply to prospective Subscribers only and you will continue to enable current Subscribers to use Your Marketplace Content after removal of the listing or offer until that Subscriber terminates their use.
3.5 Our Role. You will be the seller of record for Your Marketplace Content. We certify that we will not retain, use or disclose any underlying content of Your Marketplace Content for any purpose other than providing services to you in accordance with this Agreement. Except as expressly set forth in this Agreement, we are not involved in any underlying transaction between you and any Subscriber. We are not responsible for any dispute between you and any Subscriber, but we may elect to assist in resolving any dispute between you and any Subscriber. If we elect to assist in the resolution of a dispute, you agree to cooperate with us to resolve the dispute.
3.6 Fair Treatment of Our Subscribers. You must offer Your Marketplace Content to Subscribers on terms and conditions (including but not limited to price) at least as favorable to the same offering(s) on Similar Sales Channels. For example, (a) your total fees and charges for Your Marketplace Content must not exceed the lowest total fees and charges you offer through any Similar Sales Channels and (b) you must make available in Accelize Marketplace all of your software and data products (including all versions) that you make available through any Similar Sales Channel. Authorized Resellers will notify us if they cannot meet an obligation under this section because the Intellectual Property Vendor (“IPV”) offers the Authorized Resale Product at a price higher than available in a Similar Sales Channel. You will provide all updates and new versions of Your Marketplace Content (Reseller Content instead for Authorized Resellers), as soon as those updates or versions are available through a Similar Sales Channel.
3.7 Subscriber Ratings and Feedback. We may implement mechanisms that rate, or allow Subscribers to rate and provide feedback about, Your Marketplace Content (including information about Your Marketplace Content that was removed from Accelize Marketplace), you, and your performance in connection with Your Marketplace Content and Accelize Marketplace. We may make these ratings and feedback publicly available.
3.8 Technical Support and Subscriber Service. You are solely responsible for technical support (if any) for Your Marketplace Content. To be clear, this section does not create an obligation that you provide technical support for Your Marketplace Content, but we need not provide Subscriber support or technical support to any Subscriber of Your Marketplace Content.
3.9 Subscriber Information. Except as expressly set forth in this Section 3.9 or as otherwise expressly permitted by us, you may use Subscriber Information only (i) to communicate with Subscribers who acquire rights to Your Marketplace Content (x) to provide customer training and technical support and (y) for software or data subscription activation, configuration and customization of content delivered via a software-as-a-service model; or (ii) for computation of your internal sales metrics. You may not use Subscriber Information for any other purpose, unless otherwise agreed in writing between you and the respective Subscriber. For example, you may not, directly or indirectly: (a) disclose any Subscriber Information to any third party, except as necessary for you to perform your obligations under this Agreement and only if you ensure that every recipient uses the information only for that purpose and complies with any restrictions applicable to you; (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 or law; (d) contact a Subscriber to influence them to make an alternative purchase; (e) disparage us, our affiliates or any of their or our respective products; or (f) target communications of any kind based on the intended recipient being a Subscriber. Notwithstanding the foregoing, you may use Subscriber Information for your marketing or promotional purposes in accordance with applicable privacy policies and law provided that you have obtained the express consent of Subscribers receiving 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 as long as Authorized Resellers have obtained the consent of the Subscribers to share the Subscriber Information. This section does not prevent you from using other information that you acquire without reference to Subscriber Information for any purpose, even if that information is identical to Subscriber Information, as long as you do not target communications based on the intended recipient being a Subscriber.
3.10 Marketing Restriction. You may not include in Your Marketplace Content, any advertisements or promotions for, or opportunities for a Subscriber to purchase, products or services that you do not list in Accelize Marketplace. If you choose to market or make other references to the availability of Your Marketplace Content, you must refer to Accelize Marketplace or use an approved logo provided by us, in compliance with any trademark usage guidelines we specify.
3.11 Other Rights. During the term of this Agreement and for so long as Subscribers may use Your Marketplace Content, you grant us a nonexclusive, worldwide license to: (a) reproduce, distribute, display, transmit, promote, and otherwise digitally make available (via all means of online and electronic distribution), Your Marketplace Content (Reseller Content instead for Authorized Resellers) to provide services to you in accordance with this Agreement, provided that no Subscriber shall be provided access to the underlying product of Your Marketplace Content without an active subscription; (b) use (i) your trademarks and logos in the form you provide them to us (with any modifications to optimize their viewing), and (ii) limited portions of Your Marketplace Content (Reseller Content instead for Authorized Resellers) (e.g., product description) for marketing Your Marketplace Content or Accelize Marketplace and (c) access, display, promote and otherwise use Your Marketplace Content (Reseller Content instead for Authorized Resellers) for demonstrating Your Marketplace Content for potential Subscribers. Use of or access to Your Marketplace Content (Reseller Content instead for Authorized Resellers) by Accelize for the purposes specified in this section is under the foregoing license and the terms of this Agreement, and such license expressly supersedes any click-through, browse wrap and/or other terms related to Your Marketplace Content (Reseller Content instead for Authorized Resellers). For the sake of clarity, the foregoing license shall be limited in all respects to the purposes and transactions contemplated under this Agreement. We may permit our Affiliates and independent contractors to exercise the rights that you grant to us in this Agreement. We assume all liability and responsibility for our Affiliates' and independent contractors' compliance with, or breach of, the terms of this Agreement.
3.12 Data Privacy. If the GDPR applies to our processing of your personal data in Your Marketplace Content, then the Accelize Data Processing Addendum ("DPA") will apply, provided that:
3.12.1 We will process your personal data in accordance with the instructions provided to us via configuration tools such as the Accelize vendor portal and APIs made available by Accelize for Accelize Marketplace, which includes our technical and organizational measures set forth in the DPA. Due to the nature of the Accelize Marketplace, certain technical measures (which were otherwise optional for you under the DPA) will be automatically applied by us.
3.12.2 Unless otherwise instructed by you, you instruct us to continue to process your personal data in Your Marketplace Content for an active subscription until its expiration or termination.
4.1 Eligibility. As agreed by you and another seller or provider on Accelize Marketplace, you may (i) designate such other person or entity as a reseller of one or more products for which you have a Paid Listing on Accelize Marketplace (in such case, you are an Intellectual Property Vendor or "IPV"), or (ii) accept a designation as a reseller of such other person or entity's product(s) on Accelize Marketplace (in such case, you are an "Authorized Reseller") in accordance with these terms and conditions. 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.
4.2 Authorized Resale Products. IPV must have a Paid Listing for each product that it authorizes for resale using this Accelize Marketplace feature (each an "Authorized Resale Product"). IPV's Paid Listing fulfills the requirement under Section 1 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 us and we have approved it for listing as set forth in Section 3.1, Authorized Reseller does not need to submit the same Authorized Resale Product to us for review and approval.
4.3 Establishing Resellers. To designate or accept a designation as an Authorized Reseller, IPV and Authorized Reseller must complete and agree to an Accelize Marketplace Reseller Authorization Form that identifies 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 Accelize Marketplace. To be clear, while the Authorized Reseller must make payments to the IPV, the processing of payments will be as described in Section 5.1. 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 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. In addition, IPV and Authorized Reseller may, as agreed by them, 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.
4.4 Resale Transactions. Each resale by Authorized Reseller of an Authorized Resale Product 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 as defined in Section 11.
4.5 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 3.9, 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 that it transmits or provides to us or to the other, including any such data or information that we convey to IPV or Authorized Reseller for the other in connection with this Accelize Marketplace feature or any Transactions contemplated by this Section, whether proposed or actual, was collected, stored, processed, disclosed and used consistent, in all ways, with applicable privacy policies and law, and that the receipt, storage, use, processing, disclosure or transmission of such data by us or others in connection with this Accelize Marketplace feature and the Transactions contemplated by the this Section 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.
4.6 Termination of Reseller Authorization. Either IPV or Authorized Reseller (the "Terminating Party") may notify us 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.
4.7 Implementation of Termination. Upon receipt of a termination notice under Section 4.7 or upon any termination of this Agreement by IPV or Authorized Reseller, we 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 and any Accelize Marketplace Custom Resale Transaction Request Form, 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, we will not facilitate any further Transactions as described in the applicable Accelize Marketplace Reseller Authorization Form or any Accelize Marketplace Custom Resale Transaction Request Form. However, active entitlements obtained through earlier Transactions will not be affected by termination of any Accelize Marketplace Reseller Authorization. In addition, IPV and Authorized Reseller acknowledge and agree we may continue to facilitate Transactions under applicable Accelize Marketplace Reseller Authorization Form(s) and Accelize Marketplace Custom Resale Transaction Request Form(s) until implementation of termination is complete, and this Agreement will continue to apply to such Transactions.
4.8 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.
If Your Marketplace Content is listed as a Paid Listing, the terms in this Section also apply. All non-Paid Listings of Your Marketplace Content (e.g. free trials) must have a corresponding Paid Listing in Accelize Marketplace no later than 90 days after the initial listing of the non-Paid Listing version, unless we determine that we cannot accept Paid Listings from you 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.
5.1 Processing of Transactions; Collection of Transaction Proceeds. You hereby appoint us as your payment processing agent for the limited purpose of receiving payments on your behalf from Subscribers or Authorized Resellers ("Users"). On your behalf, we will process all payments and refunds for Transactions and collect the applicable Transaction Proceeds. Receipt of funds from Users by us on your behalf for Your Marketplace Content will be deemed receipt of funds from Users by you and will satisfy the obligations owed to you by Users in the amount of the applicable payment by the User. We do not guarantee payment on behalf of any Subscribers, including payments owed to IPV from Authorized Resellers. You will ensure that all fees and charges payable by Subscribers for Your Marketplace Content are billed and collected through us and you will not offer or establish any alternative means of payment. We may impose transaction limits on some or all Subscribers and sellers/providers 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. We may withhold for investigation, or refuse to process, any of your Transactions that we suspect is fraudulent, unlawful or otherwise violates the terms of this Agreement or our Policies. For the sake of clarity, we will not pay you any fees where we are using Your Marketplace Content for our testing, support, demonstration, or other sales support of Your Marketplace Content as necessary to exercise our rights under Sections 3.1 and 3.11 of this Agreement.
5.2 Remittance of Transaction Proceeds to You. At the beginning of each month, we will pay to you all previously unpaid Transaction Proceeds that we have fully collected as of the date that is seven (7) days before the date of payment, provided that Transaction Proceeds from the resale of Authorized Resale Products will be subject to Section 5.3. We will deduct from each payment any Fees due to us related to Your Marketplace Content and the associated Transaction(s). We may also withhold, deduct, or setoff any amounts payable by you to us or our affiliates against any Transaction Proceeds. No Transaction Proceeds will be payable to you for our use of Your Marketplace Content for the purposes described in Section 3.11. All payments to you will be sent through electronic transfer to your designated bank account. If there is an error in the processing of any Transaction, you authorize us to debit or credit your designated bank account, to correct such error, provided that any such correction is made in accordance with applicable laws and regulations. If we cannot debit your designated bank account for any reason, you authorize us to resubmit the debit, plus any applicable fees, to any other bank account or payment instrument that you have on file with us or to deduct the debit and applicable fees from future Transaction Proceeds.
5.3 Resale Transaction Proceeds. Amounts payable to IPVs from Authorized Resellers for the sale of Authorized Resale Products will be disbursed from Transaction Proceeds that we collect from the contemporaneous resale of such Authorized Resale Products by Authorized Resellers. We do not separately collect payment from Authorized Resellers of the price payable to IPVs for sales of Authorized Resale Products. We will disburse Transaction Proceeds from each resale of an Authorized Resale Product in the following order: (i) we will deduct the IPV Listing Fee for the contemporaneous sale from IPV to Authorized Reseller, (ii) we will 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, if applicable, the Accelize Marketplace Custom Resale Transaction Request Form, and (iii) we will disburse any remaining Transaction Proceeds to Authorized Reseller. We do 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 us to IPV of Transaction Proceeds as set forth above, there is any Shortfall, such Shortfall must be paid by the Authorized Reseller. We have no obligation or liability for any such Shortfall or Authorized Reseller debt.
5.4 Taxes. You are responsible for the calculation, invoicing (if required), validation and payment of all sales, use, excise, import, export, value-added, withholding and other taxes and duties assessed, incurred or required to be collected ("Taxes") or paid for any reason in connection with any Transaction and with Your Marketplace Content. We need not determine whether any Taxes apply to any Transaction, and we are not responsible for remitting Taxes to any taxing authority for any Transaction, or for reporting any information (including the payment of Taxes) for any Transaction. Despite the foregoing, when we are legally obligated by a valid taxing authority, we will collect Taxes, and we will provide Subscribers with a compliant tax invoice. All fees and payments payable by you to Accelize under this Agreement are exclusive of any applicable taxes, deductions or withholding (including but not limited to cross-border withholding taxes).
5.5 Risk of Loss. You will bear all risks of fraud or loss, including the risk of chargebacks or credit card fraud associated with your sale or license of Your Marketplace Content. If we receive a chargeback or determine a payment related to a Transaction resulted from fraud, then you will promptly reimburse us for the total amount of any applicable Transaction Proceeds paid to you, as well as all credit card association, bank or other payment processing, re-presentment and/or penalty fees associated with the original Transaction.
5.6 Cancellations and Refunds. Unless required by the Accelize Marketplace Listing Guidelines, you will post your cancellation and refund policy in the listing or offer for Your Marketplace Content in Accelize Marketplace. At a minimum, this cancellation and refund policy must: (a) allow Subscribers who subscribe to Your Marketplace Content to exercise any rights to cancel subscriptions to Your Marketplace Content through the Accelize Site; and (b) comply with the other requirements of this Agreement, including the Accelize Marketplace Listing Guidelines. You will accept and process cancellations of, and provide refunds and adjustments for, Your Marketplace Content in accordance with the cancellation and refund policy posted at the time of the applicable Transaction. You will route all Transaction refund (and adjustment) payments through us. We will credit the applicable account, and you will reimburse us for all amounts so refunded.
5.7 Removal. Upon removal of the listing or offer of Your Marketplace Content, you will continue to support Your Marketplace Content to current Subscribers for at least 90 days following removal of the listing, unless otherwise stated in the terms with the Subscriber governing use of Your Marketplace Content. If you are an IPV, you 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.
The term of this Agreement will begin on the Effective Date and will continue until terminated under this Section 6. Either party may terminate this Agreement for any or no reason by providing 30 days' written notice to the other party. Following termination of this Agreement, you will allow existing Subscribers to continue to use Your 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 3.2), and on your behalf, we will continue to process all payments and refunds for Transactions and collect the applicable Transaction Proceeds in accordance with Section 5; provided, however, that upon at least 90 days' prior notice to existing Subscribers, you may stop making Your Marketplace Content available to existing Subscribers if you are no longer making products similar to Your Marketplace Content commercially or otherwise publicly available on any Similar Sales Channel. Despite anything in this Agreement to the contrary, we may terminate an existing Subscriber's use of Your Marketplace Content (y) at any time in accordance with our agreement with the Subscriber or (z) upon termination of this Agreement for any or no reason.
7.1 General. You will defend, indemnify, and hold harmless us, our Affiliates and licensors, and each of their and our respective employees, officers, directors, and representatives from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys' fees) arising out of or relating to any third party claim, including any claim brought by an IPV or Reseller against us, concerning: (a) alleged infringement, misappropriation, or violation of any third-party rights by Your Marketplace Content (Reseller Content instead for Authorized Resellers), or by the copying, use, distribution, sale, development, design, production, advertising or marketing of Your Marketplace Content (Reseller Content instead for Authorized Resellers); (b) a dispute between you and any IPV, Reseller or Subscriber to Your Marketplace Content; (c) any royalties or payments due by you to any third parties as a result of this Agreement; (d) any actual or alleged violation of law, gross negligence, willful misconduct, or fraud by you in connection with Your Marketplace Content; (e) any actual or alleged breach of your representations, warranties or covenants set forth in this Agreement, including but not limited to Section 3.3; and (f) 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 your failure to collect, remit or report any Taxes in connection with any Transaction.
7.2 Process. We will promptly notify you of any claim subject to Section 7.1, but our failure to promptly notify you will only affect your obligations under Section 7.1 to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate as long as you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.
8.1 Generally. EXCEPT AS MAY BE EXPRESSLY SET FORTH OTHERWISE IN THIS AGREEMENT, WE, OUR AFFILIATES AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING ALL SERVICES, SOFTWARE, OR PRODUCTS PROVIDED BY OR ON BEHALF OF US IN CONNECTION WITH THIS AGREEMENT, OR THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE, OUR AFFILIATES AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
8.2 Limitations of Liability. IF ANY PARTY DEFAULTS ON ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND SUBJECT TO THE LIABILITY CAP IN SECTION 8.3, THE NON BREACHING PARTY WILL BE ENTITLED TO RECOVER FROM THE BREACHING PARTY ONLY THE ACTUAL AND DIRECT DAMAGES THAT THE NON BREACHING PARTY MAY INCUR ON ACCOUNT OF SUCH BREACH. EXCEPT FOR INDEMNITY OBLIGATIONS IN SECTION 7, NEITHER PARTY NOR ANY OF EITHER PARTY'S RESPECTIVE AFFILIATES OR LICENSORS WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES EVEN IF A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING DAMAGES ASSOCIATED WITH: LOSS OF PROFITS OR GOODWILL; UNAVAILABILITY OR NON-PERFORMANCE OF ANY OR ALL OF THE SERVICES OFFERED BY ACCELIZE; INVESTMENTS, EXPENDITURES OR COMMITMENTS RELATED TO USE OR ACCESS TO THE SERVICES OFFERED BY ACCELIZE; OR UNAUTHORIZED ACCESS TO, COMPROMISE, ALTERATION OR LOSS OF YOUR CONTENT, INCLUDING REPLACEMENT COSTS.
8.3 Damages Cap. EXCEPT FOR OBLIGATIONS ARISING UNDER SECTION 7, (I) NEITHER PARTY'S NOR ANY OF ITS RESPECTIVE AFFILIATES' OR LICENSORS' AGGREGATE LIABILITY IN CONNECTION WITH ANY CLAIM UNDER THIS AGREEMENT WILL EXCEED THE TOTAL TRANSACTION PROCEEDS ACCRUED BY US UNDER THIS AGREEMENT FOR THE TWELVE-MONTH PERIOD PRECEDING SUCH CLAIM, MINUS THE AMOUNT OF ANY DAMAGES PAID BY SUCH PARTY OR ITS AFFILIATES OR LICENSORS TO THE OTHER PARTY DURING SUCH TWELVE-MONTH PERIOD, AND (II) NEITHER PARTY'S NOR ANY OF ITS RESPECTIVE AFFILIATES' OR LICENSORS' AGGREGATE LIABILITY FOR ALL CLAIMS UNDER THIS AGREEMENT WILL EXCEED THE LOWER OF (A) THE TOTAL TRANSACTION PROCEEDS ACCRUED BY US UNDER THIS AGREEMENT OR (B) TEN MILLION DOLLARS.
Notwithstanding anything in this Agreement to the contrary, we may update or change the terms of this Agreement upon notice to you, including by posting updated terms on the Accelize Site, except that we will provide you with prior written notice (which may be via email) (i) at least 30 days prior to the effective date of any changes which may cause you to be in noncompliance with the terms of this Agreement and (ii) at least 60 days prior to the effective date of any changes that would result in a modification of the Fees applicable to Your Marketplace Content.
10.1 Assignment. You will not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 10.1 will be void. We may assign this Agreement without your consent (a) in connection with a merger, acquisition or sale of all or substantially all of our 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.
10.2 Entire Agreement. This Agreement incorporates the Policies by reference and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. We will not be bound by, and specifically object 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 you 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 you submit or require us 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.
10.3 Force Majeure. We and our 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 our reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions.
10.4 Governing Law. This Agreement shall be governed by and construed in accordance with the controlling laws of (i) France, if you are domiciled in a country in Europe, or (ii) the United States of America and the State of California, if you are 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.
10.5 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 U.S. 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. You represent and warrant that you, your financial institution(s), and any Authorized Reseller of Your Marketplace Content are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, or owned or controlled by such a party, including the lists maintained by the United Nations Security Council, the U.S. Government (e.g., OFAC's Specially Designated Nationals List and Foreign Sanctions Evaders List and the U.S. Department of Commerce's Entity List), the European Union or its member states, or other applicable government authority.
10.6 Independent Contractors; Non-Exclusive Rights. We and you 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.
10.7 Language. All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.
10.8 Confidentiality and Publicity. The parties will comply with the terms of any nondisclosure agreement between you and us (or our Affiliates). If no such agreement exists, you and your representatives (a) will protect and keep confidential the existence of this Agreement, its terms and conditions (including pricing) and any other information obtained from us in connection with this Agreement identified as confidential or proprietary or that, given the nature of the information or the manner of its disclosure, reasonably should be considered confidential or proprietary (including but not limited to all information relating to our technology, customers, business plans, marketing activities and finances), (b) will use this information only for the purpose(s) for which it was originally disclosed and in any case only to fulfil your obligations under this Agreement, and (c) will return all information to us promptly upon the termination of this Agreement. For the sake of clarity, any Fees charged by us for your use of Accelize Marketplace is our confidential information. All information will remain our exclusive property, and you will have no rights to use this information except as expressly provided herein. You will not use any trade name, trademark, service mark, logo or commercial symbol, or any other proprietary rights of ours or any of our affiliates' in any manner without prior written authorization. You 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 our prior written permission.
(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the Accelize Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the Accelize Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
(b) To Us. To give us notice under this Agreement, you must contact Accelize by personal delivery, overnight courier or registered or certified mail to the mailing address. We may update the address for notices to us by posting a notice on the Accelize Site. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent.
10.10 No Third-Party Beneficiaries. This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
10.11 No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
10.12 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.
“Accelize Confidential Information” means all nonpublic information disclosed by us, our Affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Accelize Confidential Information includes: (a) nonpublic information relating to our or our Affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us or our Affiliates. 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 you at the time of your receipt from us; (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 you without reference to the Accelize Confidential Information.
“Accelize Marks” means any trademarks, service marks, service or trade names, logos, and other designations of Accelize and its affiliates that we may make available to you in connection with this Agreement.
“Accelize Marketplace” means the Marketplace operated by Accelize located at https://portal.accelize.com, as it may be updated by us from time to time.
“Accelize Site” means https://www.accelize.com (and any successor or related site designated by us), as may be updated by us from time to time.
“Acceptable Use Policy” means the policy located here (and any successor or related locations designated by us), as it may be updated by us from time to time.
“Affiliates” means any Person which controls, is controlled by, or is under common control with a Party.
“Authorized Resale Product” has the meaning assigned in Section 4.2.
“Authorized Reseller” has the meaning assigned in Section 4.1.
“Content” means software (including machine images), data, text, audio, video or images.
“Fees” means 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 Your Marketplace Content shall be equal to the amounts set forth here, as may be updated from time to time by us in accordance with this Agreement.
“IPV” has the meaning assigned in Section 4.1.
“IPV Listing Fees” means 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 Fee model set forth here as updated from time to time by us in accordance with this Agreement.
“Listing Fees” means 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 Fee model set forth here, as updated from time to time by us in accordance with this Agreement.
“Paid Listing” means a listing or offer in Accelize Marketplace where we process the payment of fees or other charges paid by Subscribers in connection with use of Your Marketplace Content. Paid Listings include offers made pursuant to an Accelize Marketplace Reseller Authorization Form, Accelize Marketplace Custom Resale Transaction Request Form or other Custom Transaction Request.
“Party” means either You, the End User, or Accelize.
“Person” means a partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, or other entity.
“Reseller Content” means any software, content, or services an Authorized Reseller provides Subscribers in addition to any of the IPV's software or services.
“Service Offerings” means the services provided by Accelize, which include DRM hardware library, DRM software library, DRM web service, user portal, vendor portal, entitlement management, payment, billing, invoicing, and monitoring.
“Shortfall" means 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 Fee, 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” means any sales or distribution channel through which you provide standard offers for content substantially similar to Your Marketplace Content with similar license terms (e.g., annual, hourly or monthly subscriptions), including direct sales through your own website. If you are an Authorized Reseller, then Similar Sales Channels are sales or distribution channels that provide you with the same or greater discounts on IPV Marketplace Content.
“Subscriber(s)” has the meaning assigned in Section 3.2.
“Subscriber Information” means any data or information to which you have 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 Your Marketplace Content.
“Taxes” has the meaning assigned in Section 4.4.
“Terminating Party” has the meaning assigned in Section 4.7.
“Transaction” means any sale or license of, or granting of access to a Paid Listing.
“Transaction Proceeds” means the gross sales proceeds received by us from any Transaction.
“Users” has the meaning assigned in Section 5.1.
“Your Marketplace Content” means any content that you promote, license, sell or grant access to Subscribers or Authorized Resellers through Accelize Marketplace, including but not limited to (a) content delivered via a software-as-a-service model, any related technical support you provide and content description information and any related marketing or promotion materials; (b) any services you provide, content description information. If you are an Authorized Reseller, this includes any Reseller Content.