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Client Partner Program Resale Terms

Terms and Conditions

1.1            These Terms and Conditions (“Terms”) Govern our Solution.  WHEN YOU SIGN AN ORDER FORM WITH US, OR CONTINUE TO USE OUR SOLUTION AFTER THE “LAST UDPATED” DATE OF THESE TERMS, YOU ARE AGREEING TO THESE TERMS ON BEHALF OF YOUR ORGANIZATION.  These Terms refer to Digital River as “us,” “we,” or “our” and  to your business organization as “you” or “your.”  The “Partner” provides the online store for your products and facilitates orders between you and us. For purposes of these Terms, we refer to the sale of a license to digital product(s) and the sale of a service use right to services as a “sale” of a “product,” even though digital product(s) and services are licensed and not sold.

1.2            Our Solution; Appointment of Digital River as Reseller.  Digital River’s product is a fully-integrated suite of back-end services – payments, tax, fraud and compliance – called Global Seller Services (“GSS”).  GSS is enabled by our business model, where we act as an online reseller of your products via the Partner’s online store. When you use our Solution to sell your products, you appoint Digital River, and Digital River accepts the appointment, to resell your products to shoppers.

1.3            Applicable Terms. Use of the Solution is governed by these Terms, the below Data Handling Standards and mutually approved Order Form (collectively the “Agreement”).  The Order Form is the only portion of the Agreement you will sign.

1.4            Your Business and Shopper Experience.  You are fully responsible for the following aspects of your business and shopper experiences, including:  (i) your products and services; (ii) shopper relations, including support service for any installation, use, configuration and operation of your products and services; (iii) your systems or the systems you procure from third parties, including any downtime, errors or fraud on such systems; (iv) your personnel; and (v) your compliance with all laws, rules and regulations applicable to your responsibilities.  Partner is responsible for (i) your website and online shopping experience; (ii) your online order capture experience.

1.5            Information You Provide. Our Solution is dependent upon the information you provide to Partner (e.g., we must know about your products in order for our Solution to legitimately resell your products, process payments for your products, calculate any taxes due, and for our software logic to help determine if a purchase is fraudulent), so you must provide to Partner in a timely manner all information in your control reasonably required by us to comply with our obligations.. You must respond promptly to any request for direction, information, or approval that is reasonably necessary for Partner and us to deliver the Solution for you or protect our rights under the Agreement.  The information you provide must be accurate, true and complete, and if any information is or becomes materially inaccurate or incomplete, you must immediately notify us.

1.6            Press Release.   You agree we may announce the relationship in a mutually approved press release within 60 days of initially entering into an Order Form with you, and you and us both agree to work together on joint marketing initiatives.

1.7            Ownership and Intellectual Property.  As between you and us, you own all of your Confidential Information and materials you provide to us directly or via Partner, whether electronic or physical, in the course of performing your obligations under these Terms (including without limitation your products, trademarks and logos, as may be applicable) and all proprietary and intellectual property rights thereto.  As between us and you, we own the Solution, its constituent parts, our software, marks, logos, work product, information prepared by, provided by, or used by us (other than the materials you provide to us), and any modifications or improvements to them, and all proprietary and intellectual property rights thereto.

1.8        Confidentiality.  We and you each agree, as it relates to our or your respective handling of confidential information, to maintain in strict confidence and to use only to deliver or use the Solution or as otherwise authorized by the other party, all information received under the Agreement which is of a confidential nature concerning the other party’s business operations, technical and financial information, employees, suppliers, providers or shoppers (“Confidential Information”).  Information will not be deemed Confidential Information if it is or becomes generally available to the public without breach of the Agreement or is independently developed by the non-disclosing party or its personnel or representatives without reliance in any way on Confidential Information of the disclosing party.

In connection with our performance, tracking and improvement of the Solution we may disclose Confidential Information to our third-party providers (such as our corporate affiliates, merchant/acquiring banks and contractors) and you may disclose Confidential Information to your third-party providers to the extent necessary for your use of the Solution.

Any such third-party to whom Confidential Information is disclosed must be subject to a written confidentiality obligation no less restrictive than this provision, and the disclosing party will remain liable for any breach by them of this confidentiality provision.  You or we may disclose Confidential Information required to be disclosed by law or court order so long as the disclosing party provides prompt written notice to the other party (if not prohibited by law), tries to limit the disclosure to the minimum amount required and obtains confidential treatment or a protective order, and, if requested, cooperates with the other party to do so.  We may also use and disclose anonymized and/or aggregated information relating to usage of the Solution that does not identify you or any particular shopper or supplier (such as aggregated conversion data to help optimize future sales conversion rates and fraud data to continually improve our anti-fraud logic for future transactions), and we may disclose information stored in our Solution if we believe it is required to do so by law or to reduce risk of credit or other kind of fraud.

1.9        Protection of Personal Data. We and you each agree, as applicable, to comply with all applicable data protection and data privacy laws, rules, and regulations as they relate to our or your respective handling, control of and/or processing of personal data (or similar defined terms under applicable laws) as set forth in the Data Handling Standards.  We agree to be liable for any breach of this paragraph by our subcontractors or agents, if any are involved in performing the Solution.

1.10         Material Change in Circumstances.  If you are subject to a material change in circumstances (including without limitation a change in ownership, a material change in your financial condition, a material change in your products or services, or a change in the laws or regulations applicable to your business) that we believe, in good faith, is likely to cause you or us to be in violation of an applicable law, rule or regulation or which represents a material economic or liability risk to us, we may immediately, on notice to you, (i) establish and maintain an offset in an amount we in good faith specify, based on an increased risk to us of chargebacks, refunds, or penalties; (ii) institute a delay in our payments to you; (iii) suspend or limit your use of the Solution; or (iv) terminate this Agreement.

1.11         Term.  The Agreement governs your use of the Solution until for as long as you use the Solution. The term for each Solution is defined in the Order Form and will automatically renew for one (1) year periods unless either party provides written notice of termination to the other at least ninety (90) days in advance of the end of the then-current term.

1.12         Termination. 

1.12.1     Either party may terminate the Agreement or an affected Solution (i) upon thirty (30) days’ advance written notice to the other if the other party is in breach of the Agreement and does not cure the breach within the 30-day notice period, or (ii) if the other party initiates or has initiated against it any proceeding under any statute or law for the modification or adjustment of the rights of creditors which is not dismissed within sixty (60) calendar days from the date of filing, or (iii) if your or our agreement with the Partner terminates for any reason.

1.12.2     In addition, you may terminate the Agreement or an affected Solution on thirty (30) days’ advance notice if we (i) modify the Agreement or a Solution in a manner that materially impairs the Solution, you provide us written notice of termination detailing the impairment within thirty (30) days after the modification becomes effective, and we do not rectify the impairment within the 30-day notice period, or (ii) consistently and repeatedly fail to make timely payments for sales transactions to you.

1.12.3     In addition, we may suspend or terminate the Agreement or the Solution without penalty immediately upon written notice to you (i) if we determine in good faith that you are in breach of this Agreement as a result of activity that (a) is illegal, (b) is a violation of applicable rules, regulations or guidelines of a card association, processor/acquiring bank, or legal or regulatory payment authority with which we must comply when reselling your products, (c) violates our territorial restrictions for permitted commerce, or (d) violates our restrictions for the types of product we will resell; (ii) if we are directed to do so by a card association, processor/acquiring bank, or legal or regulatory payment authority; or (iii) in accordance with Section 1.10.  We will notify you of any suspension or termination of your use of the Solution and where possible will consult with you before taking such action.

1.12.4      Upon termination (or after any applicable wind down period included in the Agreement), (a) you may no longer use the Solution (including any of our software, such as our APIs and/or administration interface) and we will stop providing them, (b) each party must promptly return or destroy the other party’s Confidential Information (and, if requested, provide an officer’s certification of destruction), (c) subject to all legal requirements, we will provide a facility for thirty (30) days for you to export the personal information of shoppers of your products (except their payment information, such as credit/debit card and account information) provided to us when we perform the Solution, after which we may delete shopper data, except to the extent we are required by law to maintain it, (d) we will work with you in good faith to promptly and expeditiously transfer to you the information necessary for recurring payments for products we have resold, provided that you are PCI compliant, the data is transferred in a PCI-compliant manner, and the transfer is compliant with all legal, regulatory, or other requirements applicable to us as the holder of the data, including any applicable notice requirements, which may vary by jurisdiction, and (e) the provisions of the Agreement that require or may require performance after termination will survive.

1.12.5      Following any notice of termination or non-renewal, we may create an offset from remaining payments due to you in an amount we reasonably estimate to cover potential chargebacks, refunds, or penalties that may occur following the effective date of termination (the “Wind-down Offset”). After termination of this Agreement, we will release portions of the Wind-down Offset monthly based on the decrease in risk exposure until the full Wind-down Offset is released, no later than one hundred and eighty (180) days following the termination of this Agreement.

1.13         Representations and Warranties; Limitations on Liability; Indemnification. 

1.13.1     Representations and Warranties.  Each party represents, warrants and covenants that:

–  It has all necessary rights, authorizations, licenses and permits for its operations, and it has have undertaken and fulfilled all actions and conditions to enter, to perform under, and to comply with its obligations under the Agreement.

–  It will operate its business, in a professional manner in accordance with all applicable laws, rules, regulations and generally accepted standards and practices in its industry.

–  Its products and services  (i) do not contain any viruses, spyware, malware or other disruptive software, or any violent, sexual or otherwise offensive or illegal material that may give rise to civil liability on the other party’s part, and (ii) do not violate any product-related laws or infringe or misappropriate any third party intellectual property or proprietary rights.

1.13.2      Limited Warranty and Disclaimers.  We warrant that we will perform the Solution in a professional manner in accordance with all applicable laws, rules, regulations and generally accepted standards and practices in our industry.

YOU ACKNOWLEDGE THAT OUR SOLUTION SUPPORTS YOUR ECOMMERCE BUSINESS AND IS RELIANT UPON YOUR COMPLIANCE WITH THE AGREEMENT TERMS.  IF YOU ARE NON-COMPLIANT WITH THE AGREEMENT AND/OR APIs, YOU PROCEED AT YOUR OWN RISK AND WE CANNOT AND DO NOT PROVIDE ANY WARRANTIES FOR OUR SOLUTION, INCLUDING WITHOUT LIMITATION ANY WARRANTY THAT YOUR SALES TRANSACTIONS WILL BE PROCESSED IN ACCORDANCE WITH APPLICABLE LAWS, RULES OR REGULATIONS.  EXCEPT AS SET FORTH IN THESE TERMS AND THE STANDARDS, THE SOLUTION IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND WE DISCLAIM ALL OTHER WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

1.13.3      Limitations on Liability

IN ACCORDANCE WITH RISK ALLOCATIONS THAT ARE STANDARD WITHIN THE SELLER AND PAYMENT SERVICES INDUSTRY, THE PRICING FOR WHICH THE SOLUTION IS MADE AVAILABLE TO CLIENTS, AND THE REVENUE WE EARN UNDER THE AGREEMENT COMPARED TO THE REVENUE EARNED BY CLIENTS FOR TRANSACTIONS USING THE SOLUTION, RISKS BETWEEN US ARE ECONOMICALLY ALIGNED AS FOLLOWS:  THE AMOUNT OF OUR LIABILITY IS UNLIMITED FOR OUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 1.13.4, OUR PAYMENT OBLIGATIONS, OR TO THE EXTENT WE ARE GROSSLY NEGLIGENT OR COMMIT WILLFUL MISCONDUCT.  OTHERWISE YOUR EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY CLAIM RELATED TO THE SUBJECT MATTER OF THE AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE TOTAL AMOUNT OF ALL FEES WE RECEIVED UNDER THE AGREEMENT DURING THE TWELVE MONTHS PRIOR TO WHEN THE FIRST CLAIM AROSE.  WE WILL NOT BE LIABLE FOR ANY (i) LOSS OR INTERRUPTION OF BUSINESS, (ii) ACCESS LIMITATIONS, DELAYS, INTERRUPTIONS OR DISTURBANCES TO THE SOLUTION, (iii) MISTAKES, DISTORTIONS OR DELAYS IN TRANSMISSIONS OF ELECTRONICALLY STORED INFORMATION, INCLUDING DISAPPEARANCES OF SUCH INFORMATION, (iv) ACTIONS OR INACTIONS BY YOU OR OF THIRD PARTIES (SUCH AS SHOPPERS OR YOUR SUPPLIERS), (v) AGREEMENTS YOU HAVE WITH YOUR SHOPPERS OR SUPPLIERS, OR FOR YOUR PRODUCTS, SERVICES, OR SYSTEMS, OR (vi) EVENTS BEYOND OUR REASONABLE CONTROL.

ALSO IN ACCORDANCE WITH RISK ALLOCATIONS THAT ARE STANDARD WITHIN THE SELLER AND PAYMENT SERVICES INDUSTRY, EXCEPT FOR ANY GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR LIABILITIES WHICH AS A MATTER OF LAW CANNOT BE LIMITED, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUE, OR FAILURE TO REALIZE EXPECTED SAVINGS, ARISING UNDER THE AGREEMENT OR RELATING TO THE SOLUTION, EVEN IF THE PARTY WAS ADVISED OF OR COULD HAVE REASONABLY FORESEEN THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY IN THESE TERMS APPLY EVEN IF A REMEDY IS DEEMED TO HAVE FAILED ITS ESSENTIAL PURPOSE. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY’S ACCEPTANCE OF THIS SECTION HAS MATERIALLYINDUCED THE OTHER PARTY TO ENTER INTO THE AGREEMENT AND PERMIT THE USE OF AND/OR USE THE SOLUTION. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, EACH PARTY’S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.

1.13.4      Indemnification.  Each party agrees to indemnify, defend and hold the other party harmless against any third party claim, and resulting liabilities, damages and expenses, including reasonable attorneys’ fees (“Claims”), that its business, products or services (in our case, the Solution) violate any law, rule or regulation or any third party intellectual property rights, or for its fraud, willful misconduct or gross negligence.  In addition, because you are responsible for your products and your business, and because our Solution relies on and processes the information and instructions you provide to us, you agree to indemnify, defend and hold us harmless against any Claims for (i) your failure to comply with Section 1.4 (Your Business),  Section 1.5 (Information You Provide), or Section 1.15 (Our “Know Your Customer” and Anti-Money Laundering Regulatory Obligations) of these Terms, and (ii) any failure to comply with applicable laws, rules or regulations to the extent the failure is caused by or results from your instructions, actions or omissions.

To be indemnified, the party seeking indemnity must give the indemnifying party prompt written notice of the claim, reasonable assistance, and sole authority to defend and settle the claim. In the defense or settlement of an infringement claim hereunder (or if we reasonably believe the Solution or any portion of the Solution does or may infringe the rights of a third party), we will have the option at our expense to (iii) modify the Solution to become non-infringing, or (iv) obtain for you the right to continue using the Solution, or if we determine in our discretion that (iii) or (iv) is not reasonably commercially available, then (v) terminate the Agreement with respect to the Solution and provide you a prorated refund of recurring fees previously received by us hereunder for the Solution corresponding to any period after the effective date of such termination.

1.14         Insurance.   For so long as this Agreement is in effect plus two years after, we and you must each maintain insurance coverage with reputable insurance carriers of at least: $1,000,000 per occurrence and $2,000,000 in the aggregate for each of the following – products liability, commercial general liability, professional liability/errors and omissions with cyber risk and privacy coverage, and worker’s compensation with statutory limits. A party shall provide the other party with certificates of insurance upon request.

1.15         Our “Know Your Customer” and Anti Money Laundering Regulatory Obligations.  To set up your account, you must provide us certain information, which includes our Know Your Customer account verification form and may include additional information required to comply with anti-money laundering regulations. As part of our diligence, we may engage in any investigation of your finances, activities, and operations that we reasonably deem necessary to confirm your eligibility for and use of the Solution, and you agree to provide us with information reasonably required to complete such investigation. You authorize us to share any information we collect or receive from or about you with the card associations, processor/acquiring banks or legal or regulatory payment authorities.  You authorize us to conduct a customary commercial background check for these purposes and to assess the risk of our doing business with you. You agree to provide us with written notice not more than five (5) days after you receive a subpoena, civil investigative demand, or similar request for information from a federal, state, or local government, agency, or entity relating to your products and services sold through the Solution or your use of the Solution.

1.16            Controls. We are committed to maintaining Service Organization Controls (SOC 1 and SOC 2) for financial and security controls. You may visit the Digital River compliance site to request access and review our compliance reports, which are our Confidential Information. Our compliance site is found at www.digitalriver.com/compliance.

1.17         Modifications.  From time to time in the course of our business we may modify the Agreement and/or the Solution (for example, to remain in compliance with changing laws, rules, regulations and market conditions around the world, or as required by the card associations).  We will provide at least thirty (30) days’ advance notice via electronic posting or e-mail of any material change to the Agreement or to the Solution, unless applicable laws or regulatory requirements require us to give earlier notice. We will provide at least forty-five (45) days’ advance notice via e-mail to the Legal Notice email address stated on the Order Form for any changes to Section 1, General Terms and Conditions.  If the change materially impairs the Solution, you may terminate the Agreement and your use of the Solution in accordance with Section 1.12.2.  Subject to your termination rights in Section 1.12.2, your continued use of the Solution after the effective date of any modification to the Solution or the Agreement constitutes your acceptance of such modification.

1.18        Electronic Documents. We provide our documents electronically rather than in paper form.  We will notify you that a document is available with a link to that document.  At any time and without giving advance notice, we may elect not to send a document electronically, in which case a paper copy of the document will be sent to you at your corporate address on file.

1.19         Miscellaneous.  These Terms, the Data Handling Standards,  and the relevant mutually approved Order Form constitute the entire agreement between the parties with respect to the subject matter hereof and in the Order Form, and supersede any previous and contemporaneous agreements and understandings with respect to the subject matter hereof.  No provisions in your purchase orders or your other business forms will alter the Agreement.  Amendments may only be made by a written agreement in an Order Form executed by authorized officers of both parties and by us in accordance with Section 1.17.  If there is any conflict between the provisions in the Agreement and any mutually approved Order Form between the parties, the mutually approved Order Form will control.

1.20         Notices.  Notices sent to either party must be given in writing and will be deemed effective on the date of delivery: to you, at the most recent postal or e-mail address you provided to us in your account registration, or to us, at our corporate office identified on our website, attention General Counsel, when delivered by commercial carrier and evidenced by the delivery receipt.

1.21        Independent Contractors.  The parties are independent contractors, and not partners or joint venturers.  Neither party has the right, power or authority to act or create any obligation on behalf of the other party. We may engage the services of subcontractors or agents to assist us in the performance of our obligations.  Because a subcontractor (such as a payment provider) or agent may perform the same function for many or all clients, and we require flexibility to switch or alternate subcontractors and agents to ensure service level standards, pricing commitments or other obligations under this Agreement, we are unable to inform individual clients or seek approval from individual clients each time there is a change or reassignment of a subcontractor or agent; however we will be responsible for the acts and omissions of our subcontractors and agents in the performance of such obligations under the Agreement.

1.22         Third Party Requirements. For certain additional and optional services available through the Solution, you may be required to agree to additional appendices and/or agreements with us and/or our third-party financial institutions, processors, or card associations that contain terms and obligations specific to those services. Any third-party financial institution, processor or payment services provider is an independent third party and we are not liable for any actions or inactions of third parties, included but not limited to, a third party’s unwillingness to work with you.

1.23        Assignment.  Neither party may assign the Agreement without the prior written consent of the other party except in connection with a merger or sale of all or substantially all of its assets or equity, but in such event the assigning party must provide prompt written notice to the non-assigning party of the change and the non-assigning party may terminate the Agreement if the assignment is to a direct competitor of the non-assigning party.  The Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

1.24        No Third-Party Beneficiaries.  The Agreement is for the sole benefit of the parties hereto (including our corporate affiliates) and does not create any third-party beneficiaries, whether intended or incidental.

1.25        Waiver.  No waiver of any provision or breach of the Agreement will be effective unless made in writing, nor will it be construed to be a continuing waiver of such provision or breach.

1.26         Choice of Law & Venue.  If our U.S. entities are parties to the Agreement as defined in the Order Form, disputes related to the Agreement are governed by the laws of the State of New York, USA, without regard to any conflict of law provisions, and the parties expressly agree to submit to the personal and exclusive jurisdiction of the courts located in Hennepin County, Minnesota, USA for such disputes.  If our European entities but not our U.S. entities are parties to the Agreement as defined in the Order Form, disputes related to the Agreement are governed by the laws of England and Wales, without regard to any conflict of law provisions, and the parties expressly agree to submit to the personal and exclusive jurisdiction of the courts located in London, England for such disputes. The parties specifically disclaim application (i) of the United Nations Convention on the International Sale of Goods, 1980, and (ii) of Article 2 of the Uniform Commercial Code as codified. The prevailing party in any action to interpret or enforce the Agreement will be entitled to its reasonable attorneys’ fees as well as all other remedies available to it.

1.27        Injunctive Relief.  A party may seek injunctive relief for any breach of the Agreement, without the necessity of posting a bond in connection therewith.  The availability of injunctive relief will be a cumulative, and not an exclusive, remedy available to the parties.

1.28         Enforceability.  If any provision of the Agreement is found to be legally unenforceable, that provision will be enforced to the maximum extent possible and any such unenforceability will not prevent enforcement of any other provision of the Agreement.

1.29        Time to Dispute.  Any claim by us or you for breach of the Agreement must be brought within two (2) years of the date the party first learns of the breach or else the claim will be forever barred.

1.30         Force Majeure.  No party will be in breach of the Agreement if it is unable to perform its obligations (other than payment obligations) due to conditions beyond its reasonable control, but if the condition remains in effect for more than thirty (30) calendar days (or if the condition causes, or a party believes in good faith it is likely to cause, a violation of applicable law, rule or regulation or a significant economic or liability risk), either party may terminate the Agreement without cause upon written notice to the other party.

  1. Global Seller Services Terms and Conditions.

2.1            Your Product(s).  You are solely responsible for the product(s) you offer for sale through the Solution.

2.2            Resale Transactions. An offer to purchase a product submitted by a shopper through Partner’s online store represents an offer to purchase the product from Digital River. If Digital River accepts the offer from the shopper, Digital River will contract directly with the shopper for the products and will identify itself, and be identified by you, as a reseller of the products (the “merchant” for purposes of the sales transaction). Digital River will purchase the product that the shopper has offered to purchase from you, and you will sell and transfer title to that product to Digital River for our resale of the product to the shopper.  As the authorized reseller and merchant, Digital River is entitled to retain the full amount of the purchase price, including any related taxes and fees, for the products sold to shoppers by Digital River, net of any amounts owed by Digital River to you for Digital River’s initial purchase of that Product for resale or as otherwise set forth in this Agreement.

2.3            Trade Compliance Services.  All transactions using GSS are subject to export control requirements and antitrust and fair-trade regulations and laws, which shall be your responsibility to comply with.

2.4            Fraud Screening.  We will use fraud screening tools to screen for, detect, prevent, and take such other actions as we deem reasonably necessary to detect and/or prevent fraudulent activity in connection with sales from a shopping or order capture experience connected to GSS.  The existence of fraud, or the possibility of the existence of fraud, will be determined by us, based in part on fraud data points you are required to provide to us in accordance with the Agreement plus your input where we request it to assist our anti-fraud efforts.

2.5            Other Risk Mitigation.  We may take other measures in our reasonable discretion to avert, minimize or mitigate any potential loss, corruption, theft of data or other security risk, including, but not limited to, the limitation or temporary suspension of the provision of GSS, without any liability to you.

2.6            Taxes.

2.6.1        Transaction Taxes and Regulatory Fees.  We will collect and remit the appropriate taxes and regulatory compliance fee(s) for sellers, if any are applicable.

2.6.2        Tax Identification Management.  For certain jurisdictions where it is relevant, we will provide services to collect tax identifiers from shoppers to determine the tax treatment for the order.

2.6.3        Tax Exemption Management. For certain jurisdictions, we will provide services to collect and administer tax exemption certificates from shoppers where you provide us with the information necessary for GSS to collect and administer the tax exemption certificates.

2.6.4        Tax Compliance.  We will use our entity structure, local tax registrations, and third-party tax software to calculate the appropriate taxes a shopper is responsible for paying on an order and we (as the reseller to the shopper) will be responsible for tax compliance related to that transaction. If a jurisdiction audits the tax related to sales to a shopper, we will be the subject of the audit as the reseller to the shopper but may request reasonable information from you in addition to the data we already possess which may be necessary for us to respond to these inquiries.

2.6.5        Statutory Invoicing.  We will use commercially reasonable efforts to enable providing shoppers with the proper country specific tax invoice required for the order.

2.6.6        Taxes on Sales by You to Us.  You are solely responsible for the collection and remittance of any applicable GST, value-added tax, or other consumption-based taxes on sales of product(s) by you to us (e.g., for sales of product(s) by you to us outside of United States jurisdictions) and, unless otherwise agreed, you will provide us with a valid tax invoice for any taxes payable by us to you.  You will hold us harmless from and against your failure to promptly and properly collect taxes from us on the sale of a product from you to us (including without limitation interest and penalties resulting therefrom).

2.6.7        No Declared Value Sales.  For any product(s) you provide to us at no charge for our distribution with no sales price to the shopper through transactions processed through GSS, you will be responsible for, and will hold us harmless from and against, any regulatory, sales or use taxes, or customs duty associated with such product(s).

2.6.8        Income Tax.  In no event are we responsible for any tax based on your net income or similar basis (including without limitation amounts for non-resident withholding taxes retained from amounts due to you and remitted to a taxing authority by us if we are required to do so), or the preparation of any tax return related thereto.

2.7         PCI Compliance. The transactions in which we act as a reseller must be performed in a PCI complaint matter, which is enabled through use of our secure payment form technology solutions. We hold and will continue to hold through the term of your use of GSS, a PCI Data Security Standard (PCI-DSS) certification appropriate for the card volume we process annually.  In addition, we will tokenize all card transactions in a PCI compliant manner.  If you choose not to use our secure payment form technology solutions, you will be and will remain PCI-DSS compliant. In addition, if requested you must provide proof of PCI-DSS compliance.
At your request, we will provide a copy of our then-current annual Attestation of Compliance. See www.digitalriver.com/compliance.

2.8         Payment Transaction Processing. We will use Digital River-owned merchant accounts and GSS will process the payment transaction as set forth herein and in accordance with the specific payment methods and costs for accepting the payment methods, as well any local currencies, and if necessary, currency conversions, defined in the Order Form. If we request, you will provide shopper order validation and authorization information to us. You will immediately inform us if there is any reason to believe that any information and/or instructions you provided to us have been incorrectly processed or sent to us (including, but not limited to, incorrect instructions about refunded payments).

2.9         Payment Instrument Validation.  We use a payment service to determine if the payment instrument can be validated or authorized and if the order’s payment type cannot be settled until further action is taken by the shopper, we will hold the order pending that action.

2.10         Billing Optimization.  We will leverage our proprietary billing optimization tools and our network of global and local payment partners to reduce the number of transactions declined by payment processors.

2.11         Process Authorizations, Refunds and Chargebacks.  We will process authorization(s), capture, refund and chargeback transactions through one of our payment processing relationships.

2.11.1      Refunds. We may use a payment service to initiate a refund if you have generated a refund through GSS.

2.11.2      Preorders. To the extent pre-authorized by us and offered in your online shopping or order capture experience, we may accept payment for product(s) or services not immediately deliverable to the shopper, and may, in our sole discretion, initiate reversals or hold an offset against potential refunds, chargebacks, or penalties for all or a portion of the charges processed by us.

2.11.3      Payment Method Availability.  We may, upon notice to you, disable and/or remove a payment method that (i) experiences excessive levels of fraud or chargeback rates, (ii) is no longer supported by our payment processing relationships, or (iii) we no longer accept as an authorized payment method across our client base.

2.12         Order Orchestration.

2.12.1      Fulfillment Responsibility.  We are responsible for fulfillment of products we resell to shoppers and you will act as our fulfillment agent.

2.12.2      Fulfillment Status.  You are solely responsible for sending a fulfillment request or notice in a timely manner to Partner.

2.12.3      Notifications.  GSS is configured to enable transactional notifications related to shopper and order events, including order confirmation, cancellation, and refunds.

2.13         Shopper Support Services.

2.13.1     Sole Responsibility.  As the reseller we are subject to strict oversight on controlling who has access to shopper data (including payment card details) so you agree that you will not subcontract your shopper service for the sale and fulfillment of product(s) offered on GSS to a third party without our express prior written approval to do so, such approval not to be unreasonably withheld, delayed or conditioned..

2.14         Warranty and Recalls.  You are solely responsible for all warranty and recall obligations relating to product(s) in accordance with your warranty policy, but in no event inconsistent with the laws and regulations of the jurisdictions in which the product(s) are sold.  You will notify us of any public or private recall or claim of infringement, or of any other liability or claims involving or relating to a product we offer for resale through GSS.  We will provide reasonable assistance in such cases, so long as you will pay all our related expenses.

2.15         Payments to You.  Once we have received notification of fulfillment for processed transactions, GSS will collect and reconcile the funds paid by the shopper for the purchase of your product, and payments to you will be aggregated into a payment to you in accordance with the Order Form.

2.15.1      Payment Calculations.  Our payments to you are computed by taking the amounts collected from shoppers net of third-party costs related to the transaction that we remit (such as taxes, regulatory fees, or shipping costs we are obligated to pay), and offsetting refunds, chargebacks and penalties and our charges in accordance with the Order Form. If the collected amounts are not enough to cover the offsets, we will invoice you for the difference in accordance with the payment terms in the Order Form.

2.15.2      Treatment of Refunds & Cancellations.  We are entitled to retain our charges earned on transactions processed by us, even if the transactions cannot be successfully settled, or become subject to refund or cancellation.

2.15.3      Authorization or Receipt of Payment Does Not Equal Payment.  The issuance of an authorization for a transaction or the payment for a transaction is not an assurance of that transaction’s validity. Any transaction may be subject to a reversed payment if permissible under the regulations or guidelines imposed by banks, card associations or legal or regulatory payment authorities. We will have complete discretion regarding the settlement of any kind of reversed payments and/or disputes with partner banks, including but not limited to, the settlement of disputes regarding reversed payments.

We may charge you for each payment transaction reversal as set forth in the Order Form. Further, any sale where the fulfillment of that product was initiated pursuant to a valid payment authorization but is subsequently rejected or cancelled prior to settlement by us, the merchant bank or payment processor, will not be treated as a completed sale to a shopper by us for the purposes of calculating payments due to you.

  1. Additional Services – Physical Product(s).

The following sections apply if the product(s) we resell include physical product(s) The type of product(s) (digital, physical, or services) we offer for sale to shoppers under the Agreement will be specified in an Order Form.

3.1            Shipping Methods and Rates. GSS receives available shipping method(s) and relevant respective shipping rates from the fulfillment service (which may be our Fulfillment Service).

3.2            Delayed Payment Type Management.  Orders using payment types that cannot be settled until further action is taken by the shopper will be held by us pending that action.

3.3            Order Cancellation.  Upon your instruction to GSS, we will communicate to the fulfillment service (which may be our Fulfillment Service) to withhold fulfillment of a physical product order if you cancel the order prior to it being sent for fulfillment (and upon confirmation, GSS will instruct the payment service to release any holds on the associated payment instrument(s)).

3.4            Warehousing and Delivery. The party responsible for warehousing and delivery to the shopper of products we offer for sale under the Agreement will be specified in an Order Form.  In the event of a conflict between the Agreement and any Incoterms, the Agreement will control.

3.5            Physical Products Delivered by You as Our Fulfillment Agent.

3.5.1        Inventory Controlled by You for Resale by Us.  We will only accept for resale (i) inventory you own (which you will continue to own while in your warehouse) that is customs cleared (duty/tax paid) in free circulation available for resale, and (ii) inventory of the latest version of each product, appropriately labeled for use in the approved countries set forth in an Order Form or SOW, including all certifications, approvals and authorizations needed for use in those countries.

3.5.2        Inventory Fulfilled by You. You accept the limited appointment as our fulfillment agent for the express purpose of warehousing and delivering products to shoppers for us. You will deliver products or cancel delayed orders within timeframes required by law. You are responsible for all costs associated with the provision of warehousing and delivery services.  You may use a third-party fulfillment agent approved by us (not to be unreasonably withheld or delayed) to perform your fulfillment obligation.  Any third-party fulfillment agent must be defined in an Order Form, and any changes to the third-party fulfillment agent must be approved by us and defined in a new Order Form.  You are responsible for the acts and omissions (and will be responsible for the acts and omissions of your third-party fulfillment agent) related to your obligations to fulfill orders for products purchased from us. You will provide us with timely proof of shipment for a given shipment upon our request. For all shipments of physical products to your warehouse, you will be importer of record (where applicable), will be responsible for all expenses associated with shipment, and will bear the risk of loss.

3.5.3        Shipping Costs; Discounts. You will use your own or your agent’s shipping account for the shipment of physical products and are responsible for all risk of loss for your products while in your, or your agent’s, possession or control, and during shipment to the shopper.  You will provide us with your warehousing and shipping fees, and we will collect from the shopper and remit to you those fees for each product fulfilled by you on our behalf.

3.5.4        Delivery Delays Caused by You.  We will have no liability for any delays to shoppers created by the delivery of products by you, or the delivery of any non-conforming product to the description you provided to us.

3.5.5        Additional Shipping Requirement. You agree that for products sold and fulfilled as our agent using the Solution, you will prohibit any change to the delivery address unless initiated by us.

3.6            Cross Border Commerce.

3.6.1        Exporter of Record. You will be the exporter of record for export control purposes under our Standard Export Model, in which you, or your forwarding agent, are responsible for (i) the legal and lawful export from the country in which the warehouse is located, and (ii) completion of all applicable export documentation, export declarations, and reporting required by export control laws, including without limitation EEI filings.  Title for products sold through GSS involving cross-border shipments will transfer from you to Digital River after export and from Digital River to the shopper before import into the destination jurisdiction.

3.6.2        Importer of Record.  The shopper will be the importer of record for any cross-border transactions. However, if we are deemed by law to be the importer of record for shipments of your products into a jurisdiction, you agree to reimburse us for all unrecoverable duties, taxes and clearance fees.

3.6.3        Global Logistics Service. You may use our Global Logistics Service by instructing us to employ one of our pre-integrated global logistics providers to act as your third-party fulfillment agent in an Order Form. The selected global logistics provider will provide delivery management for cross border shipments as your fulfillment agent.

3.6.4        Landed Cost. If you enable utilization of our Landed Cost capability to provide shoppers the additional convenience of being able to prepay import taxes, customs duties, disbursement fees, advancement fees or similar fees that may be imposed by the shipper, broker, customs authority of the destination jurisdiction or other third party (collectively, “Import Fees”), we will make commercially reasonable efforts to estimate the amount of Import Fees and collect the estimated fees from the shopper. You will be responsible for any shortage between the fees collected from shoppers and the actual Import Fees.

If, however, you are using our Guaranteed Landed Cost capability through our Global Logistics Service as indicated in the Order Form, we will guarantee the Import Fees as collected from the shopper. Import Fees to be paid and Import Fees collected through our Guaranteed Landed Cost capability will not be included in amounts collected from shoppers for purposes of calculating our payments to you under Section 2.15.1. We will pay the actual Import Fees out of the amounts collected, and no additional landed cost fees will be charged to you even if the actual Import Fees exceed the collected fees.

3.6.5        Global Returns Service.. We will provide cross-border returns management if you select our Global Returns Service in the Order Form. You agree to pay the transaction level costs for each return handled through our Global Returns Service.

3.7            Returns of Physical Product(s).

3.7.1        Returns.  GSS will process information related to returns of physical product(s).

3.7.2        Valid Return Reasons.  GSS is able to capture select return reasons to allow you to compile data on returns of physical goods.

3.7.3        Returns History.  GSS captures authentications/approvals, reporting and recordation of returns of physical product(s).

3.8.           Order Fulfillment.

3.8.1        Receipt of Orders and Shipping. You will receive order files from Partner and shall download them for processing. The processing will be done via integration. Each order will be shipped via the method specified in the order details passed through the integration. The Partner’s customer service team will be responsible for all operational support related to any orders, including but without limitation processing of returns, cancellations etc..

3.8.2        Returns. Your return policy will at minimum match the return policy provided by Partner to the shopper and you will agree with Partner on the applicable return policy. For example, if Partner’s policy for the shopper is 30 days from the date of shipment then you need to ensure that your policy will not be less than 30 days from date of shipment. For all returns, you are responsible for the original product costs, even if not received back at the warehouse. You or Partner (subject to your agreement with Partner) own the risk for any returns that are not successfully returned to the warehouse.

3.8.3        Failed deliveries. Failed deliveries (undelivered or rejected products) will be returned by your carriers to your warehouse and scanned into your system. You must process such failed deliveries and communicate them through a return report via the integration or if not via the integration then in an agreed format to be sent to Partner on a daily basis detailing all processed returns. You are responsible for the original product costs even if not received back at the warehouse. You or Partner (subject to your agreement with Partner) own the risk for any returns that are not successfully returned to the warehouse.

3.8.4       Loss of product during delivery. You are responsible for shipping the product to the shopper. You or Partner (subject to your agreement with Partner) own the risk for any loss of the product to the shopper.

3.8.5       Cancellations. Cancellations will be requested by email or through integration from Digital River (or possibly Partner’s customer service team if designated by us) to your assigned contact. You shall make your best effort to process cancellation requests as soon as possible on the same day, however when the goods are already shipped from the warehouse, Digital River acknowledges that you are not always able to stop the shipment before the delivery. Any orders confirmed as cancelled by you or Partner and subsequently shipped will be your responsibility; Digital River will not be responsible for recovery of goods confirmed cancelled but subsequently shipped, and you are responsible for the original product costs even if not received back at the warehouse.  You or Partner (subject to your agreement with Partner) own the risk for recovery of the product.

3.8.6      Duplicate and Wrong Product Shipments. The costs associated with any orders fulfilled in duplicate or where the wrong product was shipped will be your or Partner’s responsibility, subject to your agreement with Partner. Digital River will not be responsible for the recovery of goods associated with the duplicate or wrong product shipments, and you are responsible for the original product costs even if not received back at the warehouse. You or Partner (subject to your agreement with Partner) own the risk for recovery of the product.

3.8.7      Terms of Delivery. Orders will be shipped on your carrier account. You must ship the order based on the service level and, if provided, the carrier specified in the instructions Partner passes to you in the order request file. You are responsible for communications with the carrier and their claims process(es) when required for delivery exceptions, and are responsible for all risk of loss during shipment to the shopper. You must prohibit any change to the delivery address unless initiated by Partner. In addition, Digital River will only accept for resale (i) inventory you own (which you shall continue to own while in your warehouse) that is customs cleared (duty/tax paid) in free circulation available for resale, and (ii) inventory of the latest version of each product, appropriately labeled for use, including all certifications, approvals and authorizations needed for use in those countries to which it is shipped.

  1. Miscellaneous.

4.1         Your Agreement with Partner. Digital River enters into the Order Form with you in reliance on the fact that you have an agreement with Partner.  You must coordinate and adhere to your agreement with Partner. If you have any contractual issues under your agreement with Partner, including any payment issues, you must work out those issues directly with Partner. If your agreement with Partner terminates for any reason prior to the completion of the scope and services of our Order Form with you, you will remain liable for your obligations to Digital River. You agree to indemnify, defend and hold Digital River harmless from and against any claims of liability of any kind relating to your agreement between you and Partner, including any claims relating to payments.

4.2         Sole Responsibility. You and Partner are solely responsible for the provision of all shopper relations for the sale and fulfillment of the products, including any sold by Digital River to shoppers through the Solution. As the reseller, Digital River is subject to strict oversight on controlling who has access to shopper data (including payment card details) so you agree that you will not subcontract your shopper service for the sale and fulfillment of product(s) offered on GSS to a third party without Digital River’s express prior written approval to do so, such approval not to be unreasonably withheld, delayed or conditioned.

4.3         Liaison. We will each appoint someone who will be responsible to serve as the liaison between us with respect to our collaboration. A party’s liaison will: (i) have day-to-day responsibility for supervising that party’s performance under the collaboration; and (ii) have responsibility for seeking all necessary approvals for any course of action, undertaking, obligation or responsibility in connection with that party’s performance under the collaboration.

Data Handling Standards

Data Handling Standards

Effective as of August 12, 2022

These Standards are in addition to the terms in the Agreement. Words used in these Standards with an initial capital letter have the same meaning (i) as defined in these standards in Section 13 “Definitions;” (ii) as found in the EU General Data Protection Regulation (GDPR); (iii) as found in the California Consumer Privacy Act (CCPA); or (iv) as found in the Agreement. Where a term in these Standards conflicts with a corresponding term in the Agreement, the term in these Standards will control with respect to the parties’ obligations under these Standards.

1. Background and Purpose. Each party is responsible for privacy, data security, and compliance with any global Data Protection Legislation that may apply to your commerce solution. These Standards were created to allow us to have an open data sharing arrangement with you. The purpose is to ensure that any transfers of data between the parties are completed using appropriate safeguards, and that each party understands its obligations under Data Protection Legislation. Here, we have laid out the obligations of each party, including our respective responsibilities under Data Protection Legislation.

2. Obligations of the Parties. You and we will each maintain the responsibility of being an (Independent) Data Controller for Personal Data. As such, each party is responsible for ensuring that Personal Data is Processed according to Data Protection Legislation and that there is a lawful basis for its Processing activities.

3. Description of Personal Data and Purpose of Processing. Each party will process Personal Data of those purchasers that purchase a title, license right, and/or usage right to a product using our Service (the “Shopper”). Those categories of Personal Data may include names, addresses, email addresses, phone numbers, IP addresses, and other related transaction information.

The Personal Data will be processed independently by each party for the following purposes:

  •  To provide the Shoppers with the services they have requested, in accordance with the relevant party’s privacy policy,
  • To ensure the performance of the parties’ obligations under the Agreement,
  •  To provide other similar services to Shoppers where the Shoppers have, if applicable, consented to such services, and as decided by each party as its own (Independent) Data Controller,
  •  To share the data with third parties, Service Providers, and use Processors to process the data so long as the parties comply with Data Protection Legislation; and
  • Digital River agrees that it will only independently process the Shopper Personal Data for the following purposes: performing its obligations under the Agreement, fulfilling Shopper transactions, collecting Shopper payments, conducting fraud screening, providing support to Shoppers, preventing, detecting, or investigating fraud, employing independent fraud modeling, detection, and risk analytics, payment optimization, and generally complying with its contractual or other obligations to the Shopper and complying with its legal obligations. For clarity, DR will not process Shopper Personal Data to market to end users.

For the avoidance of doubt, the parties agree that neither party receives valuable consideration for, and no Sale has occurred as a result of the transfer of data from one party to another. Any transfer of data between the parties is done for the purpose of fulfilling and processing shopper-initiated transactions and for providing related support.

4. Information Provided to Shoppers. The parties agree to include the applicable link to each party’s privacy policy, prior to the collection by such party, of the Shopper’s Personal Data, so that it is clear to the Shopper which privacy policy applies to the processing of their data. For the avoidance of doubt, your privacy policy will govern how you will process Personal Data and ours will govern how we will process Personal Data. We are each responsible for fulfilling our promises as outlined in our respective privacy policies.
Where applicable, you will gather and document the applicable consents from Shoppers for the processing of their data, such as for marketing activities. And, where there is another lawful basis for the processing (such as “Legitimate Interests”) you will also document the applicable lawful basis and your reasoning behind such decision(s).

5. Data Handling Requests; Notifying the Other party. Data Protection Legislation, such as GDPR and CCPA, grants Shoppers certain rights regarding their personal data that a Data Controller holds and obligates Data Controllers to facilitate the exercise of those rights. As such, each party is responsible for facilitating the exercise of Shoppers’ rights under applicable law and must send any applicable data handling requests to the other party without undue delay.

Such rights may include the right to consent, and to withdraw the consent, the right of access, rectification, restriction of Processing, erasure, data portability, and the right to object to Processing. It is up to each party to ensure the Shoppers’ rights are honored as appropriate, considering applicable legal requirements. It is also each party’s responsibility to ensure that the Shopper has been appropriately authenticated under Data Protection Legislation prior to acting on any access request.

Specifically, as it relates to data erasure requests from a Shopper, we request that you log into our administration interface software (or successor user interface) and click on the “Request Removal of Personal Information” button, which will automatically trigger a notification to us. You may also send any communications related to such data handling requests to the Digital River contact point(s) noted in the Order Form under “Privacy.”

6. Security of Personal Data. Each party agrees to take reasonable steps to provide a level of security appropriate to the sensitivity of the Personal Data in each party’s control.

  •  Each party represents, warrants and covenants to the other party that (i) it has implemented technical and organizational security measures, which meet industry standards and comply with all applicable Data Protection Legislation, to prevent any unauthorized access, use or disclosure of Personal Data, and (ii) its processing of Personal Data will at all times be performed in accordance with such technical and organizational security measures; and
  •  Each Party represents and warrants that it has in place and in writing a business continuity and disaster recovery plan; and
  • To the extent required by applicable law, the parties will not transfer the Personal Data to a processor, vendor, service provider, subcontractor or sub-processor (a “Processor”), unless (i) it has first concluded a written agreement with the Processor that imposes obligations and restrictions on the third-party at least as restrictive as those that apply to the other party under these Standards (“Processing Agreements”), and (ii) such transfer complies with applicable Data Protection Legislation; and
  • The party who has transferred Personal Data to the Processor shall be liable for the acts or omissions of that Processor with respect to Personal Data.

7. Security Breach. With respect to any Security Breach, the parties will take all steps reasonably necessary to (i) investigate and remediate the effects of such occurrence, (ii) mitigate any harm to those Shoppers that are affected or could be affected by such occurrence, (iii) prevent the re-occurrence, and (iv) comply with applicable Data Protection Legislation.

Each party shall notify the other party in writing or by phone (for Digital River, the phone number is 952-253-1234, attention: Legal) after becoming aware of any compromise of the Personal Data that may affect the other party. The responsible party shall also notify the Supervisory Authority and Shoppers, where required and within the applicable time period under Data Protection Legislation. As such, the parties will coordinate with, consult with and keep the other party regularly informed related to its response to any Security Breach.

8. Transfers of Personal Data Outside of the EEA or United Kingdom. A party shall not transfer Personal Data (nor permit any Personal Data to be transferred) to a territory outside of the EEA or the United Kingdom unless it has taken such measures as are necessary to ensure the transfer complies with applicable law. The parties acknowledge that adequate protection for the Personal Data must exist for any transfer and will, if needed, enter into an appropriate written agreement governing such transfer of Personal Data, including, but not limited to Standard Contractual Clauses, taking into account the level of protection of the third country and taking additional steps to guarantee protection, if necessary, unless another appropriate safeguard for the transfer exists.

To the extent that that the Agreement involves the transfer of Personal Data outside of the EEA or United Kingdom, the parties agree that Standard Contractual Clauses shall be incorporated into the Agreement. To that end, for agreements entered into on or after September 27, 2021 the Standard Contractual Clauses applicable to the transfer of Personal Data outside of the EEA EU Standard Contractual Clauses (https://www.digitalriver.com/legal-other/eu-standard-contractual-clauses-commerce-connector-solutions/), plus the relevant Privacy Details in the Order Form shall constitute the completed EU Standard Contractual Clauses, and the International Data Transfer Agreement applicable to the transfer of Personal Data outside of the UK Standard Contractual Clauses  (https://www.digitalriver.com/legal-other/uk-standard-contractual-clauses-commerce-connector-solutions/), plus the relevant Privacy Details in the Order Form shall constitute the completed UK Standard Contractual Clauses. For agreements entered into prior to September 27, 2021, the contractual requirements for the transfer of Personal Data to Controllers established in third countries found in the European Commission’s Decision 2004/915/EC of 27 December 2004 plus the Privacy details in the Order form shall constitute completed Standard Contractual Clauses and shall remain in full force and effect until the Parties enter into an amendment adopting new Standard Contractual Clauses. Where and to the extent Standard Contractual Clauses apply pursuant to this Clause, if there is any conflict between these Standards and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.

9. Liabilities and Indemnification. Each party agrees to be held solely liable for the performance of its obligations under Data Protection Legislation and these Standards, and any costs associated with a party’s failure to comply with Data Protection Legislation and these Standards, including any fines imposed by a Supervisory Authority (or its equivalent), shall be paid by the party that failed to comply.
While nothing in the Agreement or these Standards shall be construed as making the parties, acting as (Independent) Data Controllers, involved in the same processing, should, pursuant to Article 82(4) of the GDPR, a party be found to be liable for the entire damage arising from a breach or breaches of the GDPR relating to activities under these Standards, in order to ensure effective compensation of one or more individuals, then that party shall indemnify the other party for that portion of the compensation attributable to any breaches of the GDPR for which it is responsible.

10. Requests from Supervisory Authorities. The parties agree to cooperate with each other when they receive a request from a Supervisory Authority or court of law that impacts the other party. Where one party receives the request (the “Receiving Party”), the Receiving Party shall communicate the request to the other party promptly, and where possible, prior to responding to the Supervisory Authority or court of law. However, if this is not possible due to the immediacy of the request, the Receiving Party shall communicate the request to the other party as soon as reasonably possible after submission of the response.

11. Survival of these Standards. Regardless of whether the Agreement is terminated or expires, if either party has access to, processes or otherwise retains Personal Data, the parties agree to comply with all applicable requirements under Data Protection Legislation. Therefore, the applicable sections of these Standards that relate to the parties’ obligations under Data Protection Legislation, survives any termination or expiration of the Agreement. To the extent there are no further obligations of the parties under Data Protection Legislation, these Standards will terminate. Also, and for the avoidance of doubt, each party is responsible for destroying the Personal Data in accordance with applicable laws and neither party is required to return to the other party the Personal Data that is in their possession.

12. Applicable Law and Dispute Resolution. These Standards (including the Agreement) constitute the entire agreement between the parties with respect to the subject matter hereof, and these Standards supersede all prior agreements or representations, oral or written, regarding such subject matter. These Standards are governed by the law governing the Agreement, except for where the applicable Standard Contractual Clauses are executed between the parties, which contain specific provisions on the applicable law in Clause IV, “Law applicable to the clauses.”

13. Definitions. The following definitions apply to these Standards:

  • California Consumer Protection Act (CCPA) is the California state statute that created new consumer rights relating to the access to, deletion of, and sharing of personal information of California residents which became effective on January 1, 2020, and any subsequent modifications or amendments.
  • Data Protection Legislation means any applicable data protection, security, consumer protection and related regulatory and legal obligations globally, including, but not limited to, the CCPA and the GDPR, and any subsequent modifications or amendments.
  • General Data Protection Regulation (GDPR) Regulation (EU) 2016/679 is that regulation of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data, which was enforceable as of 25 May 2018 and any subsequent modifications or amendments.
  •  Legitimate Interest means that processing is permitted if it is necessary for the purposes of a legitimate interest pursued by the controller (or by a third party), except where the controller’s interests are overridden by the interests, fundamental rights, or freedoms of the affected Shoppers which require protection.
  •  Sale means any activity that qualifies as “sell,” “selling,” “sale,” or “sold,” under the CCPA.
  • Standard Contractual Clauses are the contractual requirements approved by a relevant authority to ensure the appropriate data protection safeguards are in place in the event of the international transfer of Personal Data.