Merchant Trade Agreement (USA)
Updated March 17, 2021
The party accepting this Agreement (“Merchant”) offer Tipser, Inc., a Delaware corporation (“Tipser”) the opportunity to sell the Merchant’s products and services (the “Products”)via Tipser’s web-based service where Tipser offers goods and services via its publishers and third party sales channels such as digital magazines, blogs, social media networks and marketplaces (“Publishers”). Tipser offers a software-as-a-service platform that offers the Products as well as allows Merchant to manage the Products, including managing Orders (as defined below) and other details with respect to the Products (the “Platform”). Tipser.com and all underlying services operated by Tipser, Inc. and its parent Tipser AB, including the Platform (collectively, the “Service”). This Agreement is a legally binding contract between Merchant and Tipser regarding Merchant’s use of the Service.
2. Merchant Account
The Merchant needs a user account and a Merchant account in order to administer and sell Products through the Platform. The accounts are obtained by completing and submitting the registration form at Tipser.com.
To register a Merchant account Merchant must be a legal entity with the authority and full ability to enter into this Agreement with Tipser and meet the insurance requirements noted below. The Merchant must state their correct personal contact name and email, company name, and address information and ensure that this information is kept up to date, accurate and correct. The Merchant shall immediately notify Tipser via email to [email protected] if the Merchant suspects that the Merchant or user account has been compromised or abused.
3. The Service
As part of the Services, the Merchant uploads the inventory of Products and grants Tipser the right to resell such Products via the Platform and Publishers. Tipser is the merchant of record and acts as a retailer of Merchant Products to consumers (“Consumers”). Tipser will therefore provide sales information to the Merchant available via the Platform.
Subject to this Agreement, during the term of this Agreement, Tipser grants Merchant (and its personnel authorized by Merchant, each an “Authorized User”) a limited, non-exclusive, revocable, nontransferable, non-sublicensable license to access and use the Services and Platform solely for Merchant’s internal business purposes. Any future release, update or other addition to the Platform shall be subject to this Agreement. Merchant will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Tipser promptly of any unauthorized use known to Merchant.
Merchant will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Services, except as expressly allowed herein; (b) modify, adapt, alter or translate the Services (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Services for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services, except as permitted by law; (e) interfere in any manner with the operation of the Services or the hardware and network used to operate the Services; (f) modify, copy or make derivative works based on any part of the Services; (g) access or use the Services to build a similar or competitive product or service; (h) attempt to access the Services through any unapproved interface; or (i) otherwise use the Services in any manner that exceeds the scope of use permitted herein or in a manner inconsistent with applicable law or this Agreement. Merchant acknowledges and agrees that the Services will not be used, and are not licensed for use, in connection with any of Merchant’s time-critical or mission critical functions.
3.1. Product Information
The Merchant is responsible for having the required rights to sell their current Product(s) inventory sold through the Platform, and for complying with all applicable laws in all markets the Merchant is operating in. The Merchant is responsible for providing all accurate and complete information regarding the current price or, if applicable, a valid price list, stock count, Product description, images of the Product, delivery terms, shipping costs and other information (collectively with any photos, images, data, text, and other type of works provided or uploaded by Merchant, the “Merchant Content”) necessary for Tipser’s fulfillment of the Services and as may be requested by Tipser from time to time. Merchant Content must be accurate and substantially equivalent to any similar information listed on Merchant’s websites, catalogs and/or other sales channels with respect to the Products. The Merchant Content shall exclusively describe the specific Product being offered on the Platform and may not include any links to information on another webpage or e-commerce store. The Product must be classified in the category that best describes the Product. The Merchant is responsible for maintaining that the Merchant Content is consistent with the Products offered for sale.
The Product prices and shipping cost of the Product shall be specified by Merchant on the Platform as consumer prices, including VAT and shall not exceed the prices of the Merchant (e.g. on the Merchants own website), or if applicable, Merchant’s representatives.
The Merchant is responsible for ensuring that all claims and statements regarding its Products meet applicable laws and regulations, including (without limitation ensuring that all claims of efficacy and results are supported by appropriate studies), and are not false or misleading in anyway. Tipser is not responsible for verifying any claims and Merchant shall indemnify Tipser for any false or misleading statements made by Merchant.
Merchant hereby grants Tipser a nonexclusive, royalty-free, non-sublicensable (except to Publisher’s as necessary to provide the Services) worldwide right and license to use, display, perform, reproduce, modify for the purposes of formatting for display, distribute, copy and publish the Merchant Content on Tipser’s Platform and Publisher’s websites, applications, and platforms. Tipser is under no obligation to review or monitor Merchant Content and may, in its sole discretion, remove or edit any Merchant Content that it deems may violate this Agreement.
Tipser disclaims any and all liability in connection with Merchant Content. Merchant is solely responsible for the Merchant Content and the consequences of providing Merchant Content via the Service. By providing Merchant Content via the Service, Merchant represents and warrants that: (a) Merchant is the creator and owner of the Merchant Content, or have the necessary licenses, rights, consents, and permissions to authorize Tipser and users of the Service to use and distribute your Merchant Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Tipser, the Service, and this Agreement; (b) Merchant Content, and the use of the Merchant Content as contemplated by this Agreement, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Tipser to violate any law or regulation; and (c) Merchant Content does not include (i) incitement, hate speech, pornography, depictions of violence or that content that may be deemed offensive or otherwise inappropriate; (ii) information offering or disseminating fraudulent goods, services, schemes, or promotions (e.g., make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming); (iii) content that is unfair or deceptive under the consumer protection laws of any jurisdiction; (iv) the promotion of, selling, or distributing controlled substances, including but not limited to any illegal or prescription drugs, regulated substances or products the sale of which is restricted to buyers of a certain age or who have a certain permit or license, including but not limited to any alcohol, tobacco, or firearms and other weapons.
3.2. Orders And Delivery
The Merchant is responsible for fulfilling Product orders (“Orders”) submitted through the Services, including Product quality, damages, all handling of the product such as storage, shipping, or other handling until the Consumer physically receives the product. The Merchant is responsible for the delivery of the Product to the Consumer within the promised time frame stated on the Platform. The Merchant is responsible to immediately notify Tipser if the Products are likely to not be delivered according to the Order.
The Merchant shall secure the stock count on the Platform for delivery according to their available stock volumes. The Merchant can at any time disable a Product on their Merchant account or feed when it is out of stock. The Merchant is responsible for sending orders as well as delivery confirmations/notifications to the Consumer. The Merchant shall also provide tracking information if possible both to Tipser or the Consumer.
Tipser is obligated to forward Orders placed via the Platform without delay to the Merchant. The Merchant is responsible to present the correct information on Tipser’s Platform or through API regarding an Order. To update the order status to “shipped” when the Product is physically sent, adjust to status “returned” when the Product is returned and adjust Order status to “cancelled” in case of a cancelled Order.
3.3. Customer Service, Returns and Complaints
Tipser will provide first level support to Consumers, and Merchant will be responsible for second level support with respect to any Products and Orders. The Merchant is responsible for submitting information regarding how to proceed with complaints on Tipser’s Platform. Upon notification a complaints about a Merchant’s Products, the recipient of the complaint will immediately: (a) inform the other party of the complaint, (b) forward to the other party any and all complaints or demands from Consumers of the Merchant Products, government agencies, or other persons (together with all available evidence and other information relating thereto, including Product references and Order information), and (c) reasonable assistance and information requested by the other party, so that such party may take the action that it deems appropriate, including requiring a full and complete refund to any Consumers who may have purchased affected Merchant Products. To the extent that Tipser gives Merchant any recommendation to resolve such complaints or demands, Merchant shall consider such recommendation in good faith and shall in any event use its commercially reasonable efforts to resolve such complaints or demands.
In the event a Product is the subject of a recall (which includes safety notices) or other action required to bring the Product into compliance with applicable laws and/or Product documentation, Merchant shall notify Tipser immediately and shall be responsible for all costs and expenses related to resolving issues related to the recall including but not limited to Consumer communication, Consumer returns, shipping and receiving.
The Merchant is responsible to submit information regarding the return address and return process for the Products on Tipser’s Platform. Pre-printed return slip is expected to be included in the shipment. The Merchant must immediately inform Tipser regarding received returns so that Tipser may credit the Consumer within a reasonable period of time, as well as debit the Merchant for the value of paid goods. Merchant shall promptly refund Tipser for any amounts paid to Merchant for such returned Products.
In cases where the Consumer turns to Tipser for their right to return Tipser shall promptly notify the Merchant. In cases where the Consumer turns directly to the Merchant for the use of the right to return the Merchant shall promptly notify Tipser.
4. Intellectual Property
The Service and Platform is owned and operated by Tipser. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Tipser are protected by intellectual property and other laws. All Materials included in the Service are the property of Tipser or its third party licensors. Except as expressly authorized by Tipser, Merchant may not make use of the Materials. Tipser reserves all rights to the Materials not granted expressly in this Agreement.
All Merchant Content is the property of Merchant and its third party licensors. Except as expressly authorized by Merchant, Tipser may not make use of the Merchant Content. Merchant reserves all rights to the Merchant Content not granted expressly in this Agreement.
If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Tipser an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to this Agreement, nothing in this Agreement prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
Merchant must maintain in force at its expense throughout the term of this Agreement sufficient insurance policies, including a commercial general liability insurance policy, including bodily injury, property damage, personal injury liability, and contractual liability with limits of not less than $1,000,000 (USD) for each occurrence and $2,000,000 (USD) annual aggregate. All insurance policies must be issued by carriers with a rating of no less than AM Best Rating of A+. Merchant shall provide Tipser with at least thirty (30) days’ written notice prior to any variation, cancellation or expiration of any policy. Merchant shall furnish Tipser with such evidence of insurance coverage within five (5) business days of request should a situation arise that requires such documentation. Merchant’s obligation to maintain insurance coverage is not diminished in any manner by reason of any separate insurance Tipser may choose to maintain, nor does it relieve Merchant of any obligations. Prior to Merchant going live on the Platform, Tipser must receive an accord certificate evidencing such insurance coverages.
6. Payment and Commissions
For each Product the Merchant will set the consumer price (“Product Price”) via the Platform, Merchant may update the Product Price for each Product from time to time, provided however that the Product Price applicable to each Order will be the amounts set on the date such Order is placed by the Consumer. The parties will mutually agree the commission fee which is paid by Merchant to Tipser for each Order (“Commission”) which will apply to all Products made available by Merchant via the Platform, the Commission amount will be included on the Merchant’s account and may only be updated by mutual agreement of the parties.
Tipser will remit to Merchant the Product Price for each Order within 30 days of such Order date. Each month, Tipser shall invoice Merchant for the Commissions due for all Orders placed and for which the Product Price has been remitted to Merchant in the previous month. Merchant shall pay Tipser all Commission due within 30 days of receiving an invoice from Tipser.
Merchant is not entitled to the Product Price (or if such Product Price has been paid, shall refund such Product Price to Tipser) and Tipser is not entitled to a Commission if Tipser credits the Consumer for the Product Price in the following cases:
1. The Merchant did not deliver the Product to the Consumer during the previous month. The Merchant shall notify Tipser as soon this situation is likely to arise.
2. An approved complaint and refund has been made by the Consumer to the Merchant during the same period. The Merchant shall immediately notify Tipser regarding this situation.
3. The right to return is utilized by the Consumer in accordance with applicable the Merchant’s return terms or as permitted under applicable law. The Merchant shall immediately notify Tipser regarding this situation.
The merchant shall ensure that Tipser is not charged for sales tax when purchasing the product from the merchant. If sales tax is charged to Tipser anyway, Tipser shall have the right to invoice the merchant for the sales tax.
7. Representations and Warranties
Each party represents, warrants, and covenants as follows: (a) It is duly organized, validly existing, and in good standing in the jurisdiction of its incorporation, (b) this Agreement constitutes a valid and binding obligation of such party that is enforceable in accordance with its terms, (c) the entering into and performance of this Agreement does not and will not violate, conflict with, or result in a material default under any other agreement to which such party is a party, (d) it will performing obligations under this Agreement in a professional and workmanlike manner, (e) it will comply with all applicable laws, including without limitation, privacy and data protection laws and export control laws and regulations. Merchant acknowledges that Merchant is a “Business” under the California Consumer Privacy Act with respect to personal information provided in connection with this Agreement.
Merchant represents, warrants and covenants as follows: (a) the Products will substantially conform to any specifications provided by merchant, including the Merchant Content, and (b) the Products do not infringe any third party’s intellectual property right, and shall conform with all applicable law.
Tipser represents, warrants and covenants as follows: (a) the Services will substantially conform to any specifications provided by Tipser, and (b) the Services do not infringe any third party’s intellectual property right.
8. Agreement Period
This Agreement comes into effect upon acceptance of this Agreement by Merchant, approval of the Merchant´s application for a Merchant account, or when Merchant first accesses and uses the Services and applies until terminated as described herein. This Agreement may be terminated by either party upon 30 days’ prior written notice. The Merchant is responsible for Product availability and shipping until termination of this Agreement. To terminate, Merchant must email [email protected] The Merchant shall receive a confirmation in order for the termination to be valid.
If Merchant violates any provision of this Agreement, Merchant’s authorization to access the Service automatically terminates. In addition, Tipser reserves the right to terminate this Agreement upon notice to Merchant, for any reason or no reason at any time.
Upon termination of this Agreement: (a) Merchant’s license rights will terminate and must immediately cease all use of the Service; (b) Merchant will no longer be authorized to access its account or the Service; (c) Tipser shall pay Merchant the Product Price and Merchant shall pay Tipser all Commission due for all Orders placed prior to termination; and (d) all sections of this Agreement which by their nature are intended to survive termination, will survive.
“Confidential Information” means any nonpublic information that relates to the actual or anticipated business, research, or development of a party and any proprietary information, trade secrets, and know-how of such party that are disclosed to a party (“Receiving Party”) by the other party (“Disclosing Party”) or its agents, directly or indirectly, in writing, orally, or by inspection or observation of tangible items. Confidential Information includes without limitation, research, processes, techniques, technology, designs, marketing, products, services, and other business information including, user information, financial information, and funding and commercialization plans.
Confidential Information does not include any information that Receiving Party can demonstrate: (a) was publicly known or made generally available to the public before Disclosing Party disclosed the information to Receiving Party, (b) became publicly known or made generally available, after disclosure to Receiving Party by Disclosing Party, through no wrongful action or inaction of Receiving Party, (c) was in Receiving Party’s possession, without confidentiality restrictions, at the time of disclosure by Disclosing Party, as shown by Receiving Party’s files and records, or (d) was independently developed by Receiving Party without use of or reference to the Confidential Information of Disclosing Party, as shown by Receiving Party’s contemporaneous written records.
Receiving Party will not, during and after the term of this Agreement, disclose the Confidential Information of Disclosing Party to any third party or use the Confidential Information of Disclosing Party for any purpose other than the performance of Receiving Party’s obligations under this Agreement. Receiving Party will take all reasonable precautions to prevent any unauthorized disclosure of the Confidential Information of Disclosing Party including, but not limited to, requiring each employee and independent contractor with access to Disclosing Party’s Confidential Information to execute a nondisclosure agreement containing terms that are substantially similar to the terms contained in this Agreement.
In the event the Receiving Party is requested pursuant to, or required by, law to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall be permitted to disclose Confidential Information provided the Receiving Party has provided the Disclosing Party with prompt notice of such disclosure in order to enable Disclosing Party to seek a protective order; and provided further that any Confidential Information so disclosed retains its confidentiality protections for all other purposes.
Each party acknowledges and agrees that, due to the unique nature of Confidential Information, there may be no adequate remedy at law for breach of this Section and that such breach may cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief, without obligation of posting bond, in addition to whatever remedies it might have at law or under this Agreement.
THE TIPSER SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED “AS-IS.” AS A USER OF THE SERVICES, MERCHANT USES THE TIPSER SITES, THE SERVICES, AND THE PLATFORM AT ITS OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAWS, TIPSER AND ITS AFFILIATES DISCLAIM: (A) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; OR (B) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TIPSER DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE TIPSER SITES AND THE SERVICES WILL MEET MERCHANT’S REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED, OR ERROR-FREE, AND TIPSER WILL NOT BE LIABLE TO MERCHANT FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF ANY TRANSACTIONS, AND TIPSER DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY MERCHANT FROM THE SERVICE OR TIPSER ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE TIPSER ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. TIPSER IS NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. MERCHANT UNDERSTANDS AND AGREES THAT USE ANY PORTION OF THE SERVICE IS AT MERCHANT’S OWN DISCRETION AND RISK, AND THAT TIPSER IS NOT RESPONSIBLE FOR ANY DAMAGE TO MERCHANT’S PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING MERCHANT CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW
11. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY TIPSER ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT FOR EITHER PARTY’S LIABILITY TO THE OTHER PARTY FOR BREACH OF CONFIDENTIALITY, INDEMNIFICATION OBLIGATIONS, WILLFUL MISCONDUCT, GROSS NEGLIGENCE OR FRAUD, EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREUNDER WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS PAID BY MERCHANT TO TIPSER DURING THE TWELVE (12) MONTH-PERIOD PRIOR TO THE DATE THE OF THE CLAIM GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, TIPSER’S LIABILITY FOR INDEMNIFICATION OBLIGATIONS SHALL NOT EXCEED TWO (2) TIMES THE TOTAL AMOUNTS PAID BY MERCHANT TO TIPSER DURING THE TWELVE (12) MONTH-PERIOD PRIOR TO THE DATE THE OF THE CLAIM GIVING RISE TO SUCH LIABILITY.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS.
To the fullest extent permitted by law, Merchant is responsible for its use of the Service, and will defend and indemnify Tipser and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) Merchant’s violation of any portion of this Agreement, any representation, warranty in this Merchant Agreement, including any product liability claim; (b) Merchant’s violation of any third party right, including any intellectual property right or privacy right; (c) Merchant’s violation or any consumer protection regulation or any applicable law, (d) any claim by a Consumer in connection with the Products, except to the extent such claim arises from Tipser’s gross negligence or willful misconduct; or (e) any claim of personal injury of damage to property in connection with the Products.
Tipser will defend and indemnify Merchant and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of the Services infringing or misappropriating any third party intellectual property right. Provider will have no obligation under this Section for any infringement or misappropriation to the extent that it arises out of or is based upon the Merchant Content (including, the Products) or use of the Services by Merchant for purposes not intended or outside the scope of the license granted to Merchant hereunder.
If Tipser becomes aware of, or anticipates, a claim subject to indemnification by Tipser under this Section, then Tipser may, at its option (a) modify the Services that are the subject of the claim so that they become non-infringing, or substitute functionally equivalent products; (b) obtain a license to the third-party intellectual property rights giving rise to the claim; or (c) terminate this Agreement on written notice to Merchant (provided such terminate will not relieve either party of its payment obligations for Orders placed prior to termination). This Section states Tipser’s sole and exclusive liability, and Merchant’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Services.
If any party entitled to indemnification under this Section (an “Indemnified Party”) makes an indemnification request to the other, the Indemnified Party shall permit the other party (the “Indemnifying Party”) to control the defense, disposition or settlement of the matter at its own expense; provided that the Indemnifying Party shall not, without the consent of the Indemnified Party, enter into any settlement or agree to any disposition that imposes any conditions or obligations on the Indemnified Party. The Indemnified Party shall notify the Indemnifying Party promptly of any claim for which the Indemnifying Party is responsible and shall reasonably cooperate with the Indemnifying Party to facilitate defense of any such claim; provided that any failure to do so shall not invalidate the claim for indemnification, unless such failure has a material adverse effect on the settlement, defense, or compromise of the matter that is the subject of the claim for indemnification. An Indemnified Party shall at all times have the option to participate in any matter or litigation, including but not limited to participation through counsel of its own selection, if desired, the hiring of such separate counsel being at Indemnified Party’s own expense.
13. Force Majeure
Tipser and the Merchant are freed from the obligation to perform certain obligations under these conditions, if the omission is due to circumstances beyond the reasonable control of such party (“Force Majeure”) and the circumstance prevents, significantly aggravate or delays the fulfillment of obligation. Examples of Force Majeure include, pandemics, government action or omission, new or amended legislation, industrial legislations, industrial disputes, blockades, war, riots, sabotage, extreme weather conditions, lightning, fire, explosion, flood, natural disasters or accidents. In case of Force Majeure, the party who is unable to fulfill the Agreement or parts of the Agreement, shall immediately inform the other party thereof and how it affects the fulfillment. If such notice has not been sent within a reasonable time after the party has or ought to have become aware of the impediment they are obliged to pay compensation for the damage that the counterparty could have avoided if the notice had left in a timely manner. Force Majeure is considered as long as it impedes the fulfillment of the obligations in this Agreement. At Force Majeure, reasonable efforts shall be undertaken by both parties to limit the effects on this Agreement.
Neither party may assign or transfer this Agreement without the other party’s prior written consent; provided however, (a) either party may assign this Agreement to its successor effective upon notice, in the event of a change of control, merger, reorganization or sale of all or substantially all of the assets of such assigning party and (b) Tipser may subcontract all or part of its duties hereunder so long as Tipser remains liable for the performance thereof.
Tipser reserves the right to change this Agreement on a going-forward basis at any time upon 30 days’ notice. If a change to this Agreement materially modifies your rights or obligations, Tipser may require that Merchant accepts the modified Agreement in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Agreement. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section, this Agreement may be amended only by a written agreement signed by authorized representatives of both parties. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.
All notices required under this Agreement will be provided in writing and will be considered received if delivered or sent by personal delivery, reputable courier, facsimile, e-mail, or both certified and regular mail to (a) Merchant at the address provided in connection with the Merchant account and (b) Tipser at 220 E 42nd Street, Suite 409A, New York, NY 10017, USA or [email protected]
The Service is intended for visitors located within the United States. Tipser makes no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
If any part of this Agreement is deemed void, illegal or otherwise unenforceable by a proper authority such part shall be considered as a separate part and other parts of the Agreement shall still apply. Such provision shall be changed and interpreted in order to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions. The failure to require performance of any provision will not affect Tipser’s right to require performance at any other time after that, nor will a waiver by us of any breach or default of this Agreement, or any provision of this Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself. This Agreement contains the entire agreement between Tipser and the Merchant regarding the Services. No terms of any purchase order, acknowledgement, or other form provided by Merchant will modify this Agreement, regardless of any failure of Tipser to object to such terms. The relationship between the parties will be that of independent contractors.
15. Governing Law and Disputes Resolution
This Agreement is governed by, and all disputes arising under or in connection with this Agreement shall be resolved in accordance with, the laws of the State of New York, without reference to its conflict of law rules. Except for the right of either party to apply to a court of competent jurisdiction for preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute arising under or relating this Agreement, including as to the interpretation, enforcement, breach, or termination of this Agreement will be settled by confidential binding arbitration, conducted in the English language, in New York County, California, administered by the American Arbitration Association (“AAA”) before a sole arbitrator in accordance with the then-current AAA Commercial Arbitration Rules. Such arbitrator shall have the power to determine issues of arbitrability. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. Any judicial actions brought by any party that are not subject to arbitration must be brought exclusively in the state or federal court of San Francisco County, California. The parties irrevocably submits to the jurisdiction of such courts and waives any objection that any of them may have to either jurisdiction or venue.