“Affiliate” means, as to any Person, any other Person that, directly or indirectly, is controlled by, is under common control with or controls such Person, but only as long as such control exists. For this purpose, control means ownership or voting rights over at least 50% of the outstanding voting or equity securities of the Person in question or the power to direct or cause the direction of management or policies of such Person, whether through voting securities, by contract or otherwise.
“Aggregate Information” means data and information that is aggregated and deidentified so that Company and individual Customers are no longer identifiable.
“Agreement” means the Order Form(s) or other governing agreement (whether written or click-thru) that references the applicable Service Terms and these Standard Terms.
"Company" shall mean the company that executes the Agreement and any entity that is controlled by Company. For these purposes, “control” shall mean beneficial ownership by the subject entity, whether directly or indirectly, of securities of an entity entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, of the election of the corresponding management authority) of (i) more than fifty percent (50%) or (ii) such lesser percentage as is the maximum ownership permitted in the country where the entity exists.
“Company E-Commerce Providers” means each third party provider (other than Radial) engaged by Company to provide of front-end webstore, order management technologies, system integrators, hosting providers, fulfilment warehouses, customer care centers, payment processors, and other services in connection with the operation of the Company Online Store.
“Company Online Store(s)” means the website(s) listed on the Order Form and any associated application(s) where Company sells goods and services to its Customers, and any successor or replacement websites or applications.
“Confidential Information” has the definition set forth in Section 5.1.
“Customer” means a Person who places (or attempts to place) an Order through the Company Online Store.
“Customer Information” means the name, mailing address, telephone number, e-mail address, and any other personally identifying information of a Customer provided by or obtained in connection with the performance of the Services; provided, however, Customer Information does not include any information that either Radial owns or to which Radial has obtained other than through transactions contemplated under this Agreement.
“IP Rights” means: (a) any and all now known or hereafter known tangible and intangible (i) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask-works, (ii) trademark, trade dress and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights, and (v) other intellectual and industrial property rights of every kind and nature throughout the universe, however designated, whether arising by operation of law, contract, license, or otherwise; and (b) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force regarding any of the foregoing.
“Law” means the then effective laws, rules, regulations, orders, and binding legal interpretations governing the Services provided hereunder.
“Order” means an order for merchandise or services made through a Company Online Store, telephone (i.e. the customer care toll-free telephone number for a Company Online Store) and any other means associated with the Company Online Store.
“Order Form” shall mean Radial’s order form pursuant to which Company orders Radial products and services, which describes, among other things, the term of the Agreement, the services provided, and fees.
“Order Information” means the items included in the Order, shipping information, purchaser information, recipient information, IP address, browser and device information, payment and billing information, order confirmations, and other Order data requested by Radial.
“Person” means, whether or not capitalized, any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union, or other entity or governmental body.
“Radial Data” means the data provided through the Services by Radial to the Company, excluding Customer Information and including Aggregate Information.
“Services” has the definition set forth in Section 3.1.
“Service Fees” the fees due Radial for the performance of the Services as set forth in the Order Form and in the applicable Service Schedule.
“Taxes” means federal, state, provincial, local, value added, goods and services, sales and use and foreign taxes, duties, tariffs, levies and other similar charges.
2.1 Radial License. Provided that Company pays the applicable fees and complies with the terms and conditions of this Agreement, Radial grants Company during the Term of this Agreement a non-exclusive, non-transferable, non-assignable, non-sublicensable (except as set forth herein), personal, revocable and limited worldwide license solely to (a) implement the API into Company’s application in order to deliver Customer Information to Radial and receive Radial Data and Services from Radial; and/or (b) use the Web Portal (if applicable) to access the Radial Services and query data, (ii) display the Data to its employees and agents, and (iii) use the Data for internal use only, as permitted hereunder.
2.2 Company License. Company grants Radial during the Term set forth in the applicable Order Form a non-exclusive, non-transferable, non-assignable, non-sublicensable (except as set forth herein), personal, revocable and limited worldwide license to use the Customer Information as reasonably necessary for Radial to perform the Services.
2.3 License Restrictions. Except as expressly authorized herein, Company shall not: (i) use the Service other than in connection with the Company Online Store(s); or (ii) use the Service to facilitate the sale and distribution of illegal goods and services or otherwise in violation of applicable laws.
3.1 Services. Radial will perform the Services as described on the Order form and in the applicable Service Terms (the “Services”).
3.2 Statements of Work. The Company may also engage Radial to provide Services set forth in statements of work entered into by the Parties under this Agreement (“SOW”). Any SOW or other writing signed by the Parties pursuant to this Agreement are incorporated herein and made a part of this Agreement.
3.3 Cooperation. The Company will provide Radial with the requested cooperation and assistance in connection with Radial’s provision of the Services. The Company shall provide Radial with all information, materials and data reasonably required by Radial. Additionally, to the extent that Radial is required to coordinate, integrate, communicate or otherwise interact with a Company E-Commerce Providers or other third-party designated by the Company, the Company will cause such third party to reasonably cooperate and assist Radial consistent with the foregoing. Radial shall not be responsible for a default or delay in performance of its obligations to the extent such default or delay is attributable to the failure of the Company, or any such third party. Throughout the Term, the Company will continue to operate, maintain and merchandise an e-commerce business in a manner designed to provide a positive customer experience and maximize Orders.
3.4 APIs. Unless otherwise agreed upon by the Parties in writing, all applicable information transmitted by and between the Parties shall be communicated electronically using Radial’s standard Application Programming Interface (“API”) guides and encryption requirements. To the extent the Parties mutually agree to use middleware in connection with any such communications, the Parties will utilize middleware acceptable to both Parties, provided, however, that such middleware must conform to Radial’s standard API guides. All costs incurred in the testing and transmission of such communications will be borne by the transmitting Party.
4.1 Invoices. Radial shall invoice the Company on a weekly, bi-weekly or monthly basis depending on transaction volume. All payments to Radial pursuant to the Agreement shall be made via wire transfer or ACH of immediately available funds to an account designated in writing by Radial. Unless otherwise set forth in the Order Form, Company shall pay all invoiced amounts within thirty (30) days from the invoice date.
4.2 Costs and Taxes. Except as otherwise provided in this Agreement, each Party will be responsible for all costs and expenses incurred by such Party in its performance of this Agreement. All payments for services performed hereunder are exclusive of Taxes. Any such Taxes shall be the Company’s sole responsibility and the Company shall pay or reimburse Radial for any Taxes based on the Services provided; provided that this provision shall not apply to Taxes based on Radial’s income, which shall be Radial’s sole responsibility.
4.3 Currency. All payments to Radial will be made in the currency in which the fees and charges are established. To the extent that Radial incurs any currency conversion costs to convert a currency into another currency at the request of the Company, the Company agrees to reimburse Radial for any such conversion costs.
4.4 Late Payment. All invoices not paid by a Party when due shall bear interest from the due date to the date of actual payment at the rate equal to the lesser of 1½% percent per month or the maximum rate permitted by Law. In the event that a Party incurs any fees or costs (including without limitation, any reasonable attorneys’ fees) in collecting outstanding balances and enforcing the payment provisions of this Agreement, the other Party shall be liable for all such fees and costs.
4.5 Suspension for Nonpayment. If Company fails to pay all amounts when due (or if Company fails to restore a deposit account or other security, if any), then Radial shall have the right to suspend the performance of the Services five days following written notice and until such time as full payment is made by Company.
4.6 ECI Adjustment. Fees will be subject to a change based on The Employment Cost Index (ECI) for total compensation (non-seasonally adjusted) for private industry workers, by occupation and industry, office & administrative support. Fee changes will be applied in January of each year, beginning January of 2020, based on the change in the 12 months ended for September of the prior year. For the sake of clarity, the rate change in January of 2020 will be calculated by the % change between the labor index in September of 2018 and September of 2019. The publication of the Employment Cost Index can be found at https://www.bls.gov/web/eci/ecicois.pdf.
5.1 By Radial. As between Radial and Company, Radial owns (a) all IP Rights in the Services and related documentation and the Radial Data, and (b) all IP Rights in any related derivative works of the foregoing made by either party), whether such rights are registered or unregistered and wherever in the world those rights may exist.
5.2 By Company. As between Radial and Company, Company owns all IP Rights in the Customer Information, whether such rights are registered or unregistered and wherever in the world those rights may exist.
- CONFIDENTIALITY AND DATA SECURITY
6.1 “Confidential Information” means all nonpublic information provided by or on behalf of a party or its Affiliates that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Without limiting the generality of the foregoing, the terms of this Agreement and the documentation, specifications and manuals related to the Services shall be the Confidential Information of Radial, and the Customer Information shall be the Confidential Information of Company. Each party will protect the Confidential Information of the other party from misappropriation and unauthorized use or disclosure, and at a minimum, will take precautions at least as great as those taken to protect its own confidential information of a similar nature. Without limiting the foregoing, and except as set forth herein, the receiving party will: (i) use such Confidential Information solely for the purposes for which it has been disclosed; and (ii) disclose such Confidential Information only to those of its employees, agents, consultants, and others who have a need to know the same for the purpose of performing this Agreement and who are informed of and agree to a duty of nondisclosure. The receiving party may also disclose Confidential Information of the disclosing party to the extent necessary to comply with applicable law or legal process. Upon request of the other party, or in any event upon any termination or expiration of the Term, each party will return to the other all materials, in any medium, which contain, embody, reflect or reference all or any part of any Confidential Information of the other party, subject to the receiving party’s data retention policies. Either party will be entitled to seek preliminary and/or permanent injunctive relief from any violation or threatened violation of this Section 6 without the necessity of proving actual damages or posting any bond or other security.
6.2 Data Security. The Company, through the Company E-Commerce Providers, and Radial will each maintain and implement commercially reasonable information and data security guidelines for maintaining security controls as it relates to Customer Information. At a minimum, such information security guidelines shall include (A) a requirement that such Party comply, in all material respects, with applicable Laws, (B) a plan to assess and manage system failures, (C) a regular assessment of data security risks, with adjustments made to the data security program to reduce such risks, and (D) notice and incident response procedures. In addition, each Party shall comply with the security requirements described in Exhibit A attached hereto. The Company will cause the Company E-Commerce Providers to comply with each of the above obligations as it relates to the security and operation of the Company Online Store.
7.1 By Radial. Radial shall indemnify and defend Company against any claims made by a third party that Company’s use of the Services as permitted hereunder directly infringes such third party’s United States patent or copyright, provided that Company complies with the requirements of this Section. Company shall (i) provide Radial prompt written notice of any claim that the Radial Software infringes any such intellectual property rights, (ii) provide Radial with all information and assistance requested of it with respect to any such claim, and (iii) grant Radial sole and complete authority to defend and/or settle any and all such claims. In the event that a court holds that the Service, or if Radial believes a court may hold that the Service infringes the intellectual property rights of any third party, Radial may in its sole discretion, do any of the following: obtain for Company the right to continue using the Service, replace or modify the Service so that it becomes non-infringing while providing substantially equivalent performance or, accept return of the Service, terminate this applicable Order Form or this Agreement, and refund Company a pro-rata portion of any pre-paid fees. THIS SECTION 7.1 STATES RADIAL’S ENTIRE LIABILITY AND COMPANY’S EXCLUSIVE REMEDY FOR ANY INFRINGEMENT RELATED TO THE SERVICE AND COMPANY HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF RADIAL WITH RESPECT THERETO.
7.2 By Company. Company shall defend, indemnify and hold Radial, its Affiliates, licensors and suppliers and their respective officers, directors, employees, contractors and agents harmless from any third party claims, suits, actions, demands, and proceedings brought against Radial, and all liabilities, losses, costs, expenses, settlement amounts, and damages (inclusive of Radial’s attorneys’ fees), arising out of or relating to Company’s use of the Service, except for claims of infringement covers by the Radial indemnity above. In connection with any such claim, (i) Radial will give Company prompt notice of such claim; provided, however, that failure to provide such notice shall not relieve Company from its liabilities or obligations hereunder; (ii) Company will have sole control over the defense and settlement of the claim; and (iii) Radial may cooperate with Company at Company’s sole cost and expense, in connection with the defense and settlement of the claim.
7.3 Exclusions. Radial shall have no liability or obligation for the Service to the extent the alleged infringement is based on (a) a modification or derivative work of the Service not provided by Radial; (b) a combination of the Service with or any software, product or service not provided by Radial; (c) use of the Service with on any websites not listed in an Order Form; (d) use of the Service other than in accordance with the Agreement or the documentation; or (e) continued use of a version of the Service after instructions from Radial to cease such use.
- TERM, DEFAULT AND TERMINATION
8.1 Term. Unless another initial term is set forth in an Order Form, the initial Term of an Order Form shall begin on the effective date or other start date specified in the Order Form and shall continue for one year. The Term of an Order Form shall automatically renew for successive one year terms unless either party provides the other with written notice of their election to not renew the Term at least sixty (60) days prior to the end of the then current term.
8.2 Termination for Breach. Either party may terminate an Order Form the other party is in material breach of the Order Form or this Agreement and such breach remains uncured for more than thirty (30) days after receipt of written notice thereof; provided that if Company and Radial are Party to multiple Order Forms, then only the Order Form(s) affected by such breach may be terminated.
8.3 Survival. Notwithstanding any legal presumption to the contrary, the covenants, conditions, representations, indemnities, and warranties of this Agreement that by their terms are intended to survive termination, shall survive termination or expiration of this Agreement.
- LIMITATION OF LIABILITY AND WARRANTY
9.1 EXCLUSION OF INDIRECT DAMAGES. UNDER NO CIRCUMSTANCES WILL RADIAL BE LIABLE FOR ANY LOSS OF SALES OR REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFITS; LOSS OF CONTRACTS; LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO OR CORRUPTION OF DATA; COSTS OF COVER, OR FOR ANY CONSEQUENTIAL, INCIDENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OR COSTS (INCLUDING ATTORNEY’S FEES) RESULTING FROM ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE.
9.2 LIABILITY CAP. NOTWITHSTANDING THE FORM (E.G., CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, IN NO EVENT WILL RADIAL OR ITS AFFILIATES BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES, EXPENSES, COSTS, LIABILITIES, SUITS, CLAIMS, RESTITUTION OR LOSSES, THAT EXCEED, IN THE AGGREGATE, THE AMOUNT OF FEES PAID BY COMPANY IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE ACTION.
9.3 APPLICABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION 9 (LIMITATION OF LIABILITY AND WARRANTY) (I) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (II) ARE AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE AND, (III) SHALL APPLY REGARDLESS OF THE NATURE OF THE CLAIM OR ACTION, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, NEGLIGENCE OR OTHER THEORY OF LIABILITY.
9.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR ANY EXPRESS WARRANTIES CONTAINED HEREIN, ALL SERVICES PROVIDED HEREUNDER ARE PROVIDED "AS IS" AND RADIAL MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, OR ARISING BY CUSTOM OR TRADE USAGE, AND, SPECIFICALLY, MAKES NO WARRANTY OF TITLE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. RADIAL’S EXPRESS WARRANTIES SHALL NOT BE ENLARGED, DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY SHALL ARISE OUT OF, RADIAL RENDERING TECHNICAL SUPPORT OR ADVICE IN CONNECTION WITH THE SERVICES.
- EXCLUSIVITY. During the Term, Radial shall be the exclusive provider of all services similar to the Services in connection with the e-commerce businesses of the Company and its Affiliates, including the operation of the Company Online Stores, and neither the Company nor its Affiliates will, directly or indirectly, provide similar services for itself or contract with a third party (other than Radial) to provide similar services for the e-commerce businesses of the Company and its Affiliates.
- NOTICES. All notices shall be in writing and sent by first class mail or overnight mail (or courier), transmitted by facsimile (if confirmed by such mailing), or email, to the addresses indicated on the Order Form, or such other address as either party may indicate by at least ten (10) days prior written notice to the other party. Notices to Radial shall be sent to the attention of the Legal Department.
- ASSIGNMENT. Company may not assign this Agreement without the prior written consent of Radial; provided that such consent shall not be required for assignment to a successor by merger or to the purchaser of all or substantially all of the assets of Company; provided that such assignee undertakes in writing to be bound by all the terms and conditions of this Agreement, including all obligations of Company prior to such assignment. Any prohibited assignment shall be null and void.
- ENTIRE AGREEMENT. These Standard Terms and the Order Forms are the complete and exclusive agreement between the parties, which supersedes all proposals or prior agreements, oral or written agreement, and all other communications between the parties relating to the subject matter hereof. No purchase order, other ordering document or any hand written or typewritten text which purports to modify or supplement the Agreement shall be of any effect. Except as contained in a writing signed by both parties, all such proposed variations or additions are objected to and shall have no force or effect.
- CONFLICT. In the event of any conflict between the provisions of these Standard Terms and the provisions of an Order Form or SOW, the provisions of these Standard Terms shall prevail unless the there is an explicit reference in such Order Form or SOW showing the parties’ mutual intention to override a specific term or condition of these Standard Terms.
- AMENDMENT. No terms of this Agreement (these Standard Terms, and Applicable Service Terms or the Order Form) may be amended without the written consent of both parties; provided that Radial may amend these Standard Terms and the applicable Service Terms from time to time by providing written notice to Company or by posting the amended terms on the Radial website. Prior to any renewal of the Agreement, Company agrees to request the current version of the these Standard Terms and the applicable Service Terms or review the same as posted on the Radial website, and Company shall be deemed to have consented to such revised terms and such revised terms shall be effective upon the start of the next renewal Term.
- GENERAL. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without giving effect to any principles that provide for the application of the law of another jurisdiction. All proceedings shall be conducted in English. Venue for all proceedings shall be Montgomery County, Pennsylvania, provided that Radial may seek injunctive relief in any court of competent jurisdiction. The United Nations Convention for the International Sale of Goods is excluded in its entirety. The section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement. Except for Company’s obligation to pay Radial, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. If any provision of this Agreement is held to be unenforceable, this Agreement shall be construed without such provision. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party’s right to exercise such right or any other right in the future. The parties agree to receive electronic documents and accept electronic signatures (including documents ‘click-agreed’ or otherwise adopted with an intent to sign) including in counterparts which shall be valid substitutes for paper-based documents and signatures, and the legal validity of a transaction will not be denied on the ground that it is not in writing.
The Company, the Company E-Commerce Providers, and Radial shall protect all Customer Information obtained under the terms of this Agreement from unauthorized access, destruction, use, modification, or disclosure by means of reasonable and appropriate administrative, physical and logical safeguards. Security practices shall include:
- Data Transfer. Each Party shall use applications and systems to collect, store, process or otherwise handle Customer Information that are designed in accordance with applicable industry accepted security standards.
- Encryption. Each Party shall use open encryption methodologies to protect Customer Information any time infrastructure components need to transfer Customer Information over public networks (including internet-based replication of data from one environment to another).
- Storage. Each Party shall retain all Customer Information in a physically and logically secure environment that is designed to protect it from unauthorized access, modification, theft, misuse and destruction.
- Antivirus. Each Party shall utilize antivirus programs that are capable of detecting, removing, and protecting against all known types of malicious or unauthorized software with frequent antivirus signature updates.
- Vulnerability Management. With regards to the handling of Customer Information, each Party shall establish and maintain mechanisms for vulnerability and patch management that are designed to evaluate application, system, and network device vulnerabilities and apply supplier-supplied security patches in a timely manner taking a risk-based approach for prioritizing critical patches.
- Penetration Tests and Vulnerability Scans. Each Party shall conduct regular application penetration tests and network vulnerability scans of its hosted environment and remediate in accordance with company information security policy and/or industry best practices.
- Security Monitoring. Each Party shall maintain mechanisms to monitor and quantify the types, volumes, and costs of information security incidents with potential to affect the privacy and security of Customer Information.
- Physical Security. Where either Party is storing, processing or transferring Customer Information, such Customer Information shall be housed in secure areas, physically protected from unauthorized access, with appropriate environmental and perimeter controls. The facilities shall be physically protected from un-authorized access, damage, theft and interference. The protection provided should be commensurate with the identified risks.
- Compliance. Each Party shall make available, upon the other Party’s reasonable request, appropriate personnel for the other Party to discuss and review its compliance with the terms and conditions of this Agreement that relate to data security and privacy. Each Party shall work with the other Party in good faith to address and resolve any reasonable concerns regarding its compliance with such obligations.
- Compliance with Law: Each Party agrees to use all Customer Information in accordance with applicable Law.