PLEASE READ THIS MERCHANT AGREEMENT (THE “AGREEMENT”) CAREFULLY. THIS AGREEMENT CREATES A BINDING CONTRACT BETWEEN FERMAT COMMERCE, INC. (“FERMAT”) AND THE ENTITY USING THE SERVICES (“MERCHANT” AND TOGETHER WITH FERMAT, THE “PARTIES”), EFFECTIVE AS OF THE DATE ON WHICH THE MERCHANT FIRST REGISTERS FOR THE SERVICE OR BEGINS TO USE THE SERVICE, WHICHEVER IS EARLIER (THE “EFFECTIVE DATE”). BY ACCESSING OR USING FERMAT’S SERVICES, MERCHANT SIGNIFIES ACCEPTANCE OF AND AGREES TO THIS AGREEMENT. IF MERCHANT DOES NOT AGREE TO THESE TERMS, IT SHOULD NOT ACCESS OR USE FERMAT’S SERVICES.
Fermat may revise or replace this Agreement from time to time. Fermat will post the revised agreement on the Fermat website with a “last updated” date. Merchant is responsible for reviewing and becoming familiar with any such modification. If a revision to the Agreement, in Fermat’s sole discretion, is material, we will notify Merchant by contacting Merchant through the email associated with its account. Use of the Services by Merchant after any modification of the Agreement constitutes its acceptance of the Agreement as modified.
WHEREAS, Fermat creates storefronts that allow consumers to purchase products from brands directly through their favorite creators’ (“Creators”) websites or from other microsites with specific content created by Fermat (together, the “Microsites”) and offers related commerce services to brands, including facilitating payments to Creators (the creation of Microsites and other services, the “Services”); and
WHEREAS, Fermat and Merchant desire to set forth the terms and conditions pursuant to which Fermat shall provide to Merchant, and Merchant shall acquire from Ferment, the Services.
NOW, THEREFORE, in consideration of the premises, promises, representations, and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Fermat and Merchant, intending to be legally bound, hereby agree as follows:
- License. Subject to the terms of this Agreement, Fermat grants to Merchant a limited, non-exclusive, revocable, non-sublicensable license to use the Services for the purpose of permitting your end users (“Customers”) to purchase items on the Microsites.
- Restrictions on Use. Merchant will not, and will not permit any third party to, access or use the Services except as expressly permitted by this Agreement. Without limiting the generality of the foregoing, Merchant shall not: (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (c) use any metatags or other “hidden text” using Fermat’s name or trademarks; (d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (g) remove or destroy any copyright notices or other proprietary markings contained on or in the Services.; or (h) take any action that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, misleading, false, defamatory, libelous, pornographic, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, profane or racially, ethnically, or otherwise discriminatory; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Fermat’s prior written consent; vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by these Terms of Service; (viii) transfers your account and username to another party without our consent; (ix) imposes an unreasonable or disproportionately large load on our infrastructure; (x) uses the Services to collect, harvest, transmit, distribute or submit any information concerning any other person or entity, including without limitation photographs of others, personal contact information or credit card, debit or calling card or account numbers without their permission; and (xiii) attempts to engage in or engages in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services.
- Registering the Account. In order to access certain features of the Services, Merchant must register an account with Fermat (“Merchant User Account”). As part of the registration process there may be an on-line registration page or an order form (each an “Order Form”), that may contain additional terms and conditions.
- Account Usage. Merchant may permit its employees, agents, contractors, and service providers to access the Services on Merchant’s behalf (“Permitted Users”), provided that Merchant remains responsible for such Permitted Users’ compliance with all of the terms and conditions of this Agreement (including the terms relating to the use of the Services) and provided, further, that any use of the Services by the Permitted Users is for the sole benefit of Merchant. Merchant will ensure that only Permitted Users use the Services through the Merchant User Account. Merchant will not allow any Permitted User to share the Merchant User Account with any other person. Merchant will promptly notify Fermat of any actual or suspected unauthorized use of the Services. Fermat reserves the right to suspend, deactivate, or replace the Merchant User Account if it determines that the Merchant User Account may have been used for an unauthorized purpose. Merchant is responsible for ensuring that all Permitted Users are aware of and comply with the terms of the Agreement. Any breach of the Agreement by such individuals shall be deemed to be a breach by Merchant.
- Usage Limits. An Order Form may set forth Permitted User limits, and/or other usage limitations. Use of the Services by Merchant is restricted to such limitations as set forth in the Order Form. Login credentials may be transferred from one individual to another, but may shall not be shared with another person or concurrently used by more than one Permitted User.
3. MERCHANT RESPONSIBILITIES
- General. If Merchant provides any information that is untrue, inaccurate, not current or incomplete, or Fermat has reasonable grounds to suspect that any information provided is untrue, inaccurate, not current or incomplete, or if Merchant violates Section 1.2 in any way, Fermat has the right to suspend or terminate the Merchant User Account and refuse any and all current or future use of the Services (or any portion thereof). Merchant agrees not to create another account or use the Services if it has been previously banned from using the Services.
- Necessary Equipment and Software. Merchant is solely responsible for providing any equipment and software necessary to connect to the Services and for any fees, including internet connection or mobile fees, that it incurs when accessing the Services.
- The Services. Fermat owns all rights, title and interest in the Services (including but not limited to, any computer code, software, themes, objects, concepts, artwork, animations, audiovisual effects, methods of operation, and documentation) and all original works of authorship created by Fermat in the performance of the Services. Except for the limited license set forth herein, no rights are conveyed to Merchant in any of these works. In connection therewith, to the extent Fermat provides any content to Merchant to include in a Microsite, Fermat shall own all right, title and interest in and to such content subject to a limited license for Merchant to use such content on a Microsite during the Subscription Term.
- Trademarks. Fermat’s stylized name and all related graphics, logos, service marks and trade names used on or in connection with any the Services are the trademarks of Fermat and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
- Merchant Materials. As between the Parties, Merchant is and will remain, the sole and exclusive owner of all right, title and interest in and to any materials supplied by the Merchant, including all intellectual property rights therein.
- Merchant Data. Merchant retains all right, title and interest including all intellectual property rights in and to all data that is submitted by or on behalf of Merchant in connection with its use of the Services (the “Merchant Data”). Customer grants to Fermat a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to access, collect, use, process, store, disclose, and transmit Merchant Data in order to (a) provide and improve the Services and (b) to use and modify the Merchant Data, including by combining it with other data derived from the use of the Services and data collected from the use of the Services by other customers of Fermat to create anonymous, aggregate data that cannot be associated with Merchant or its Customers (“Derived Data”). Merchant understands that Fermat shall have all ownership rights in the Derived Data and that there are no restrictions on how Fermat may use such Derived Data. In addition, Merchant hereby grants to Fermat the irrevocable right to use for its own internal business purposes (including for purposes of analytics, market research and benchmarking), and to maintain, campaign data that is collected, downloaded, or otherwise received, directly or indirectly, from Merchant by or through the Services as well as all data from Merchant’s Facebook ad account, or any similar ad account such as TikTok and Twitter (together, the “Campaign Data”) to use for analysis and reporting purely in a manner aggregated across multiple merchants.
- Fermat Metadata. Fermat retains all rights, title and interest including all intellectual property rights in and to the metadata that is generated by the Services resulting from the processing of the Merchant Data and that results from the ordinary course of providing the Services (the “Fermat Metadata”).
- Feedback. Merchant hereby assigns to Fermat all right, title and interest in and to all feedback, suggestions, ideas, improvements and other comments provided by it to Fermat relating to the Services by any means (collectively, "Feedback"), and Fermat will have the unrestricted right to use and disclose Feedback, without duty or obligation to Merchant. Merchant acknowledges that any improvements, modifications and changes arising from or in connection with your contribution to the Service are the exclusive property of Fermat’s. Merchant represents and warrants that it has all rights necessary to submit the Feedback.
4. FEES AND PAYMENT TERMS
- Fees. In consideration for the rights granted to Merchant and the performance of Fermat’s obligations under this Agreement, Merchant will pay Fermat: (a) a fee for each completed transaction that takes place on a Microsite (a “Transaction”) equal to % agreed with the Merchant of such Transaction, net of any taxes and shipping fees (the “Transaction Fee”) and (b) a monthly fee for use of the Services as set out on the Order Form (the “Service Fee” and together with the Transaction Fee, the “Fees”). Fermat reserves the right to increase Fees before any renewal term upon 45 days’ notice to Merchant. Fees are exclusive of all taxes other than taxes on Fermat’s net income, and Merchant shall pay (and Fermat shall have no liability for), any taxes, tariffs, duties and other charges or assessments imposed or levied by any government or governmental agency in connection with this Agreement, including, without limitation, any federal, state and local sales, use, goods and services, value-added, withholding, and personal property taxes on any payments due in connection with the Services.
- Payment to Fermat. If Merchant is integrated with Shopify, the Transaction Fee will be deducted off the top of amounts remitted to Merchant for each Transaction. If the Merchant is not integrated with Shopify, the Transaction Fee shall be payable along with the Service Fee as set forth in this paragraph. Fermat will issue an invoice to Merchant on a monthly basis and all Fees set forth in such invoice shall be paid within 30 days from receipt thereof. Merchant’s payment of the Fees shall not be subject to any setoff claims or rights of offset of any kind, including inactive use, of the Services. Without limiting Fermat’s other rights and remedies, if Merchant does not pay any amount when due, then fifteen days after the day such payment was due (a) interest shall accrue on such unpaid amounts at 1.5% per month (or less, as per the maximum amount allowed by applicable law); (b) to the extent applicable, Merchant shall pay any third party costs of collection (including, without limitation, reasonable attorneys’ and professionals’ fees); and (c) Fermat may, upon notice, suspend Merchant’s access to the Services until such undisputed amounts are paid in full. If Merchant disputes any amount set forth in any invoice, it shall notify Fermat within thirty (30) days of receipt of the relevant invoice or Merchant will be deemed to have waived its right to dispute such amount. Merchant agrees to work in good faith with Fermat to resolve any payment dispute.
- Shopify Terms. This section is only applicable if Merchant has signed up for the Services through the Shopify marketplace. In such event, Merchant acknowledges that in providing the Services, Fermat is acting as a Shopify Channel Developer, as defined in Shopify’s Partner Program Agreement, the current version of which is available at https://www.shopify.com/partners/terms#part-c (“Shopify Partner Program Agreement”). Merchant acknowledges that all Transactions will be processed by Shopify through Merchant’s Shopify Merchant Store (as that term is defined in the Shopify Partner Program Agreement). Merchant agrees that Fermat is not responsible for Shopify’s performance and that Fermat shall not be liable for any delays or failures of Shopify.
6. REPRESENTATIONS AND WARRANTIES.
- Each Party represents and warrants to the other that: (i) it has the full right, power, and authority to enter into this Agreement and perform its obligations hereunder; (ii) its execution, delivery, and performance of this Agreement, and the other Party’s exercise of such other Party’s rights under this Agreement, will not conflict with or result in a breach or violation of any of the terms or provisions or constitute a default under any agreement by which it is bound; (iii) when executed and delivered, this Agreement will constitute its legal, valid, and binding obligation enforceable against it in accordance with the terms of this Agreement and (iv) it will comply with all laws applicable to the performance of its obligations under this Agreement.
- By Merchant. Merchant agrees to agree to indemnify, defend (at Fermat’s option) and hold Fermat and its affiliates and their respective officers, directors, employees, members, shareholders, contractors, or representatives (and all successors and assigns of any of the foregoing), (the “Fermat Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all third party claims based on: (a) Merchant’s use of the Services; (b) any breach of any of obligations or representations and warranties of Merchant contained in this Agreement (c) a claim that the content on any Microsite violates a third party’s intellectual property rights or (c) your violation of the terms of any agreement you have with Creators, including any incorrect or insufficient commission payments as directed by you within the Services. Fermat reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Merchant, in which event Merchant will fully cooperate with Fermat in asserting any available defenses. Merchant agrees that the provisions in this Section will survive any termination of your Account, these Terms of Service, and/or your access to the Services.
- By Fermat. Fermat agrees to indemnify, defend and hold Merchant harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all third party claim based on (x) the failure by Fermat to pay Creators the Creator Commissions as directed by you through the Services, subject, as and when applicable, to Fermat’s receipt of such Creator Commissions from you and (y) a claim that the Services infringe any third party’s intellectual property rights; provided that, Fermat will have no obligation to indemnify, defend or hold harmless Merchant to the extent such claim arises out of, results from, or relates to: (a) any modifications, alterations or changes to the Services that cause the Services to infringe the intellectual property rights of a third party; (b) Merchant’s misuse or unauthorized use of the Services; or (c) any combination of the Services with any of Merchant’s or Creators or another third party’s content or materials which causes the Services to infringe the intellectual property rights of a third party. If the Services are, or in Fermat’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party intellectual property right, or if Merchant's use of any portion of the Services are enjoined or threatened to be enjoined, Fermat may, at its option and sole cost and expense: obtain the right for Merchant to continue to use the affected portion of the Services materially as contemplated by this Agreement; modify or replace the Services, in whole or in part, to seek to make the Services (as so modified or replaced) non-infringing while providing materially equivalent features and functionality; or if Fermat determines that neither of the foregoing two options are reasonably available, by written notice to Merchant, Fermat may, in its sole discretion, terminate this Agreement and require Merchant to immediately cease all use of the Services. The foregoing sets forth Merchant’s sole remedy, and Fermat’s sole liability with respect to any intellectual property infringement claim.
- Indemnification Procedure. Each Party will promptly notify the other party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Section 8. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Action and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 8.3 will not relieve the Indemnitor of its indemnity obligations under this Section 8.3, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. Neither Party shall have authority to settle and shall not settle any Action that results in the Indemnitee’s obligation, liability, and/or admission of liability without the Indemnitee’s prior written consent.
8. DISCLAIMER OF WARRANTIES AND CONDITIONS
- As Is. MERCHANT UNDERSTAND AND AGREES THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, ITS USE OF THE SERVICES IS AT ITS SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE FERMAT PARTIES DISCLAIM ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE FERMAT PARTIES EXPESSLY DISCLAIM:
ANY WARRANTY, REPRESENTATION OR CONDITION THAT: (i) THE SERVICES WILL MEET MERCHANT’S REQUIREMENTS; (ii) MERCHANT’S USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
ANY WARRANTY REGARDING ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES. SUCH CONTENT IS ACCESSED AT MERCHANT’S OWN RISK, AND MERCHANT SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS PROPERTY, INCLUDING, BUT NOT LIMITED TO, ITS COMPUTER SYSTEM AND ANY DEVICE USED TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
- BETA SERVICES. From time to time, Fermat may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Fermat’s sole discretion. The provisions of this section apply with full force to such features or tools. FERMAT’S INDEMNITY DOES NOT APPLY TO ANY BETA FEATURES.
9. LIMITATION OF LIABILITY
- Disclaimer of Certain Damages. TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL THE FERMAT PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT MERCHANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENTOR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE THE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OFMERCHANT’S TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (e) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A FERMAT PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A FERMAT PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A FERMAT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, THE FERMAT PARTIES WILL NOT BE LIABLE TO MERCHANT FOR MORE THANTHE TOTAL AMOUNT PAID TO Fermat by MERCHANTduring the six-month period prior to the act, omission or occurrence giving rise to such liability. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A FERMAT PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A FERMAT PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A FERMAT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO MERCHANT, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Fermat Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided hereunder.
- Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FERMAT AND MERCHANT.
10. TERM AND TERMINATION
- Term. This Agreement commences on the Effective Date and remains in full force and effect while during Merchant’s use of the Services, unless terminated earlier in accordance with these Terms of Service. The Order Form shall set out the length of Merchant’s subscription to the Services (the “Subscription Term”). Merchant agrees that its subscription will automatically renew at the frequency set forth on the Order Form (e.g., monthly or annually) depending on Merchant’s Subscription Term unless terminated as set forth herein.
- Termination. Merchant’s subscription will continue until the last day of the Subscription Term; provided that, Merchant may terminate its subscription by written notice thereof at least 30 days in advance of the end of the current Subscription Term. If Merchant fails to comply with any provision of this Agreement, Fermat may terminate this Agreement immediately and retain any fees previously paid by Merchant. Upon any termination of Merchant’s subscription, Merchant must cease any further use of the Services. If at any time Merchant is not happy with the Services, its sole remedy is to cease using the Services and follow this termination process. Merchant may delete an account and any associated information, upon the expiration of the Subscription Term or termination as described in this Agreement.
11. CONFIDENTIAL INFORMATION
- Definitions. For the purposes of the Agreement, a Party receiving Confidential Information (as defined below) will be the "Recipient", the Party disclosing such information will be the "Discloser" and "Confidential Information" means any and all information of Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into the Agreement, including information concerning the Discloser's past, present or future customers, suppliers, technology or business; provided that Discloser's Confidential Information does not include, except with respect to Personal Data: (i) information already known or independently developed by Recipient without access to Discloser's Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
- Confidentiality Covenants. Recipient hereby agrees that it will not, except to exercise its rights or perform its obligations under the Agreement: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or Affiliates that have a "need to know" and that have entered into written agreements no less protective of such Confidential Information than this Section 9, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry standard precautions to safeguard the other Party's Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
- Exceptions to Confidentiality. Notwithstanding Section 11.2, Recipient may disclose Discloser's Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party's business; or (iii) in the case of Fermat, to potential assignees, acquirers or successors of Fermat if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Fermat.
- Injunctive Relief. The Recipient acknowledges that disclosure of any Confidential Information by it except as set forth in Section 8.3 will give rise to irreparable injury to the Discloser or the owner of such information, not adequately compensated by damages. Accordingly, the Discloser will be entitled to equitable relief, including injunctive relief and specific performance against the breach or threatened breach of the undertakings in this Section 8, in addition to any other legal remedies which may be available.
- Return or Destruction of Confidential Information. Upon the termination or expiration of this Agreement each Party will promptly destroy (or, if requested by the other Party in writing, return) all Confidential Information of the other Party in its possession or control within a reasonable amount of time in accordance with the Recipient's data destruction practices. Notwithstanding the foregoing, the Recipient may retain copies of the Confidential Information of the Discloser as required by applicable law, or to the extent such copies are electronically stored in accordance with the Recipient's standard backup procedures or record retention policies, so long as such Confidential Information remains subject to the confidentiality provisions set out in this Agreement. Each Party will protect any Confidential Information of the other Party in accordance with this Agreement so long as it retains such Confidential Information.
12. THIRD-PARTY WEBSITES AND APPLICATIONS.
- The Services may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”). If Merchant clicks on a link to a Third-Party Website or Third-Party Application, Fermat will not provide a warning that Merchant has left the Services and is subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of Fermat. Fermat is not responsible for any Third-Party Websites or Third-Party Applications. Fermat provides these Third-Party Websites and Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or any product or service provided in connection therewith. Merchant’s use of all links in Third-Party Websites and Third-Party Applications at its own risk.
12. GENERAL PROVISIONS
- Electronic Communications. The communications between you and Fermat may take place via electronic means, whether you visit the Services or send Fermat e-mails, or whether Fermat posts notices on the Services or communicates with you via e-mail. For contractual purposes, Merchant (a) consents to receive communications from Fermat in an electronic form; and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Fermat provides to it electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Merchant’s statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
- Assignment. Merchant may not assign its rights and obligations under this Agreement, nor may it subcontract, delegate or otherwise transfer any of its rights without Fermat’s prior written consent. Subject to the foregoing, the terms of this Agreement will be binding upon assignees. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Force Majeure. Fermat shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Questions, Complaints, Claims. If Merchant have any questions, complaints or claims with respect to the Services, please contact Fermat at: email@example.com. Fermat will do our best to address any concerns.
- Governing Law and Venue. This Agreement and any action related hereto will be governed and interpreted by and under the laws of the state of California without giving regard to the conflict of laws provision thereof to the extent such laws would provide for the application of the laws of another jurisdiction. The United Nations Convention on Contracts for the International Sale Of Goods does not apply to the Terms of Service. Merchant hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts of the State of California in the city of San Francisco for any actions, suits or proceedings arising out of or relating to this Agreement and hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or related to this Agreement in the courts of the State of California or the United States of America located in the State of California in San Francisco
- Notice. Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices will be sent: (i) if to Fermat, to the following address: 300 Brannan St, Suite 304, San Francisco, CA 94107 and (ii) if to you to the current postal or email address that Fermat has on file for you.
- Waiver. Any waiver or failure to enforce any provision of the Terms of Service on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the Parties, and the remaining portions shall remain in full force and effect.
- Export Control. You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Fermat are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Fermat products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- 2.10.Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of the Agreement, will survive expiration or termination of the Agreement for any reason: Section 4 (Ownership), Section 6 (Representations and Warranties), Section 7 (Indemnification) Section 8 (Disclaimer of Warranties and Conditions), Section 9 10 (Limitation of Liability), Section 10 (Term and Termination, Section 11 (Confidential Information) and Section 13 (General Provisions).
- 2.11.Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.