Distributors and Affiliates - Digital River - EN

Distributors and Affiliates

Distributor Terms

Affiliate Terms

Terms and Conditions

These Terms were last updated on April 27, 2022.

1. Applicability. These Distributor Terms (“Terms”), together with your Distributor Registration Form (once approved by Digital River) and any applicable Exhibits (collectively, the “Agreement”), govern the business relationship between Digital River (“DR”) and “you” (the organization on whose behalf you are agreeing to these Terms) to clarify how you and DR (each a “party” and collectively “us” or “we”) will work together for DR to purchase products from you (after you have purchased them from our mutual client, the “Brand”) and for DR to then resell those products to DR’s shoppers. THESE TERMS WILL BECOME BINDING ON BOTH OF US UPON DR’S APPROVAL OF YOUR DISTRIBUTOR REGISTRATION FORM. These Terms apply to all offers, quotations, sales and deliveries unless otherwise agreed in writing between us.

2. Exhibits. The Operational Terms Exhibit, along with any additional Exhibits to these Terms (each, an “Exhibit”), if identified in your accepted Registration Form, will be incorporated into these Terms and will apply to our distribution/reseller relationship.

3. Order of Precedence. Any conflict between your approved Registration Form, these Terms and any applicable Exhibits, other than the indemnity obligations in Section 14, the ownership and intellectual property terms in Section 22, and the limitations on liability in Section 24, will be governed in the following order: by the terms in your approved Registration Form as it relates to the collaboration under that approved Registration Form, by the terms in an applicable Exhibit as it relates to that Exhibit, and then by these Terms.

4. DR’s “Know Your Customer” and Anti Money Laundering Regulatory Obligations. When DR enters into a Registration Form with you, DR will be taking on online sales related risks on your behalf by acting as your online reseller, processing regulatory requirements, taxes and payments for you and delivering DR’s Global Seller Service Solution (“GSS” or the “Solution”) for you. To set up your account, you must provide certain information DR will request, which includes completing DR’s Know Your Customer account verification form and may include you providing additional information required to comply with anti-money laundering regulations. DR will also conduct, and you authorize DR to conduct, a customary commercial background check for these purposes and to assess the risk of doing business with you. Your failure to provide true, accurate and complete information may result in DR denying your account registration or suspending or terminating the business relationship between us.

5. 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. Each party’s liaisons will be appointed in your registration materials, and either party may change its liaison from time to time upon written notice to the other party.

6. Licenses. During the term of your use of DR’s Solution, (i) DR grants you a license to use DR’s APIs and/or administration interface applicable to the Solution solely for your use of the Solution, and (ii) if the Solution requires either of us to use the other party’s trademarks and logos to perform or use the Solution, we each hereby grant the other party a license to do so solely as required in connection with the performance or use of the Solution under the Agreement, and only in the form and with appropriate legends as required by the other party. With your express written permission, DR may also include your company name and logo in DR’s marketing materials.

7. Territory. DR will purchase the Brand’s products from you for resale to DR’s shoppers in the Territory defined in the Registration Form.

8. Payment Process Options. The payment process for DR to pay you for the Brand’s products may vary depending on the Brand. DR uses two different payment processes depending on which option is selected in the Registration Form for a particular Brand’s products: either the Settlement Payment process or the Invoice Payment process.

8.1. Settlement Payment. If this option is selected, the terms in the Settlement Payment Process Exhibit apply. This option requires a separate agreement between you and the Brand to address how you will pay the Brand.

8.2. Invoice Payment. If this option is selected, the terms in the Invoice Payment Exhibit apply.

9. Retention of Title of Products. You retain the title to the products until the purchase price, including delivery costs, has been processed and the order is released for fulfillment. DR then takes title for the products until delivery to the shopper.

10. 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 DR 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 DR. In addition, DR 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 in the approved Territories set forth in an approved Registration Form, including all certifications, approvals and authorizations needed for use in those countries. DR is not tied to the movement of your inventory into the Territories. The import of the product outside a commerce transaction on DR’s system(s) of record is outside the scope of these Terms.

11. Import and Export Regulations. DR will be the exporter of record with you acting as DR’s agent for export control purposes. If required by law, DR will execute a “designation of forwarding agent” in the form provided by DR in connection with your role as DR’s agent for export control purposes and will perform the obligations described. You are responsible for proper and accurate completion of all applicable export documentation and reporting required by Export Control Laws (as defined below), including without limitation Electronic Export Information (“EEI”) filings. You must provide DR with proof of shipment for a given shipment upon DR’s request. The shopper will be the importer of record for any cross-border transactions. However, if DR is deemed by law to be the importer of record for shipments of your products into a jurisdiction, you agree to reimburse DR for all unrecoverable duties, taxes and clearance fees.

12. Export Compliance. Each of us shall comply with all applicable export control laws and regulations of all countries in which DR and you conduct business (collectively, “Export Control Laws”) that may apply to such party’s activities under these Terms, any products, or any shoppers, including, without limitation, the Export Administration Regulations (“EAR”), the International Traffic in Arms Regulations (“ITAR”), Foreign Assets Control Regulations, Foreign Trade Regulations and U.S. Customs Regulations. DR’s policy is to not provide information or documentation, or to participate in any way with a foreign boycott-related request that would violate US anti-boycott laws, rules and/or regulations. DR may cancel any transaction involving an IP address, bill-to address and/or ship-to address indicating an embargoed or sanctioned country, an individual or entity designated on any US or foreign restricted parties list, such as but not limited to the Denied Persons Lists, and Specially Designated Nationals Lists, Unverified Lists, Entity Lists, Debarred Parties Lists, and Nonproliferation Sanctions Lists (collectively, “Restricted Parties Lists”), or where prohibited end-use is indicated. You agree and acknowledge that DR has the right to immediately terminate the Agreement without penalty if it determines that it is unable to engage in business with you under applicable Export Control Laws or DR’s territorial restrictions for permitted commerce, including without limitation your designation on one or more Restricted Parties Lists or residence in or provision of products or company-offered services from a country which is embargoed/sanctioned or in which DR does not conduct commerce.

13. Limited Warranty and Disclaimer. DR warrants that it will perform the Solution in a professional manner in accordance with all applicable laws, rules, regulations and generally accepted standards and practices in its industry. You acknowledge that the Solution is reliant upon your compliance with the Agreement terms. If you are non-compliant with the Agreement, you proceed at your own risk and DR cannot and does not provide any warranties for the Solution, including without limitation any warranty that the sales transactions will be processed in accordance with applicable laws, rules or regulations. Except as set forth in this Agreement, the Solution is provided “as is” and on an “as available” basis without warranty of any kind, whether express or implied, and DR disclaims all other warranties, including any warranty of merchantability or fitness for a particular purpose.

14. We are each responsible for our own work. Indemnification. As between us, each of us is fully responsible for our own business, products, services, legal compliance and other responsibilities, including the obligations under our separate agreements with the Brand, and for our own work efforts, results, trademarks and other intellectual property. Each party agrees to indemnify, defend and hold the other party and its affiliates, officers, directors, agents and employees harmless from and against any claim, and resulting costs, liabilities, losses, damages and expenses, including reasonable attorneys’ fees and costs of any liability settlement agreed to by a party, (i) brought by a third party that its business, products or services violate any law, rule or regulation or any third party intellectual property rights, or (ii) for its fraud, willful misconduct or gross negligence. In the defense or settlement of a claim of infringement of third party intellectual property rights relating to the Solution (or if DR reasonably believes the Solution or any portion of the Solution does or may infringe the rights of a third party), DR will have the option at its expense to (i) modify the Solution to become non-infringing, or (ii) obtain for you the right to continue using the Solution, or if DR determines in its discretion that (i) or (ii) is not reasonably commercially available, then (iii) terminate the Agreement with respect to the Solution and provide you a prorated refund of recurring fees previously received by DR hereunder for the Solution corresponding to any period after the effective date of such termination. 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.

15. Non-exclusive relationship; Independent Contractors. Our relationship is one of non-exclusive, independent contractors to one another. We can each work with other entities for similar or different work or projects. The Agreement does not create any partnership, agency, joint venture or employer-employee relationship between us, and neither party may act on behalf of, or create any obligation on behalf of, the other party. Each party is responsible for its own employees, independent contractors and employment expenses and taxes.

16. Publicity and Marks. Except as may be set forth in an Exhibit or approved Registration Form, any press releases or publicity regarding our collaboration, or any other use of the other party’s name, trademarks or logos (“Marks”) in its client lists or otherwise will require the prior written consent of the other party (except if required by law or to comply with any legally required reporting obligations). If one or both of us are entitled under the Agreement to use the other party’s Marks or to promote the other’s products or services, upon notification of any incorrect usage of the Marks or improper promotion of the products or services, the notified party shall promptly correct such usage or promotion as directed.

17. Your Data Privacy. We are engaging in one or more mutually beneficial business relationships (collectively, the “Business Relationship”). We each recognize that in the course of our discussions to further the Business Relationship, it will be necessary for each of us to disclose to the other certain Confidential Information in accordance with Section 18 and the Data Handling Exhibit, which is incorporated into these Terms by reference.

18. Confidentiality. We each understand and agree that in the performance of the Agreement, each party may have access to or may be exposed to, directly or indirectly, confidential information of the other party, including, but not limited to, trade secrets, contractual terms, customer information, marketing and business plans and technical information (“Confidential Information”). Each party agrees that: (a) all Confidential Information remains the exclusive property of the disclosing party, and the receiving party shall not use any Confidential Information for any purpose except in furtherance of the Agreement; (b) it shall disclose Confidential Information only to those of its employees, contractors, agents and professional advisors who have a need to know such information in furtherance of the Agreement (collectively, its “Representatives”); (c) it shall maintain (with at least the same degree of care it uses with its own Confidential Information), and shall use prudent methods to cause its Representatives to maintain, the confidentiality and secrecy of the Confidential Information; (d) it shall not, and it shall use prudent methods to ensure that its Representatives do not, copy, publish, disclose to others or use (other than pursuant to the terms hereof) the Confidential Information; and (e) it shall return or destroy all copies of Confidential Information upon request of the other party. Notwithstanding the above, Confidential Information shall not include any information to the extent it (a) is or becomes a part of the public domain through no act or omission on the part of the receiving party, (b) is in the receiving party’s possession, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure under the Agreement, (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto, (d) is independently developed by the receiving party without reference to or use of the disclosing party’s Confidential Information, (e) is released from confidential treatment by written consent of the disclosing party, or (f) is required to be disclosed pursuant to law, court order, subpoena or governmental authority; provided that the receiving party promptly notifies the disclosing party and makes diligent efforts to limit such disclosure to that which is reasonably necessary.

19. Protection of Personal Data. We each agree to comply with all applicable data protection and data privacy laws, rules, and regulations as they apply to our respective handling, control of and/or processing of personal data (or similar defined terms under applicable laws). Such responsibilities include obligations (i) to maintain administrative, physical and technical safeguards reasonably designed to prevent the unauthorized access, use or disclosure of personal data, and (ii) to maintain and abide by a privacy policy which clearly describes how personal data will be collected, used, and disclosed, including without limitation all collection, use, and disclosure contemplated for the respective services provided to the Brand. DR is committed to maintaining Service Organization Controls (SOC 1 and SOC 2) for financial and security controls. You may visit the DR compliance site to request access and review DR’s compliance reports, which are DR’s Confidential Information. DR’s compliance site is found at https://www.digitalriver.com/compliance/.

20. Representations, Warranties and Covenants. Each party represents, warrants and covenants to the other that: (i) it has full right, power and authority to enter into and fully perform its obligations under the Agreement, including without limitation the right to bind any party it purports to bind to these Terms (and each person accepting these Terms represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver these Terms on behalf of their organization); (ii) the execution, delivery and performance of the Agreement by it does not conflict with any other agreement to which it is a party or by which it is bound; and (iii) it shall comply with all federal, state, local, and foreign laws, rules and regulations applicable to its business and to the performance of its obligations in connection with the Agreement.

21. Non-solicitation. While the Agreement is in effect and for eighteen (18) calendar months thereafter, neither party shall directly or indirectly hire, offer to hire, entice away, solicit, or in any other way persuade or attempt to persuade any employee, officer, agent, or independent contractor of the other party to discontinue their relationship with that other party. Notwithstanding the foregoing, this does not prevent a party from hiring as an employee any person who responds to an advertisement for employment placed in the ordinary course of business by that party and/or who initiates contact with that party without any direct solicitation of that person by that party or any agent of that party. This provision is intended to apply only to the extent necessary to protect the parties against unfair competition. If the scope or enforceability of this provision is in any way disputed at any time, an arbitrator, court or other trier of fact may modify and enforce this provision to the extent it believes to be reasonable under the circumstances.

22. Ownership and Intellectual Property. Each party retains all of its own rights to its respective Marks, intellectual property, products and services. Neither party shall claim any ownership in the other’s Marks, intellectual property, products or services, and all benefits and rights from the use of a party’s Marks shall inure to the owner of such Marks. The DR software and all modifications thereto and derivatives thereof shall be the sole property of DR.

23. Insurance. For so long as the Agreement is in effect plus two years after, each of us agrees to 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 – 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.

24. Limitations on Liability. Except for any indemnification obligations in Section 14 or any payment obligations, the total liability a party may have towards the other under or related to the Agreement shall not exceed the net amount realized by that party under the Agreement during the twelve (12) month period prior to the date on which the liability first arose. In no event shall either party be liable to the other for any indirect, special, consequential, reliance, punitive or incidental damages, including without limitation, loss or interruption of business, lost profits or revenue, or access limitations, delays, interruptions or disturbances to a party’s products or services or other similar pecuniary loss, however caused and whether based on contract, negligence, tort or other legal theory, regardless of whether advised of the possibility of such damages. In addition, neither party will be liable for the other party’s agreement with the Brand, actions of the shoppers, or for events beyond its reasonable control. These limitations apply notwithstanding any failure of essential purpose of any limited remedy provided herein.

25. Term and Termination. Once your Registration Form is accepted by DR, these Terms and any applicable Exhibits will remain in effect for the initial term set forth in the approved Registration Form, and will be extended at 12-month intervals unless either party provides a written notice of non-renewal to the other party at least ninety (90) days in advance of the then-current term. Either party may terminate the Agreement or any Exhibits (a) upon ninety (90) days’ advance written notice of termination to the breaching party for material breach of the Agreement and/or any affected Exhibits if such material breach is not cured within such period, or (b) 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) days from the date of filing. In addition, you may terminate the Agreement or any affected Exhibit(s) (i) in accordance with Section 25, or (ii) if DR repeatedly fails to make timely settlement payments to you. Upon the expiration or termination of the Agreement or an Exhibit (or upon any applicable wind down period included in the Agreement), you may no longer use the Solution (including any of DR’s software, such as DR’s APIs and/or administration interface) and DR will stop providing them, and each party shall discontinue its performance under the Agreement or the terminated Exhibit(s), including all uses of the other’s Marks granted in connection with the Agreement or the Exhibit(s), and shall, at its expense, promptly return or destroy all copies of the other party’s Confidential Information relating to the terminated Agreement or Exhibit(s) (and, if requested, provide an officer’s certification of destruction). The provisions of the Agreement that require or may require performance after termination will survive any termination or expiration of the Agreement or applicable terminated Exhibit(s).

26. Modifications. These Terms are designed for the Solution to coordinate with the requirements of DR’s third-party providers and comply with applicable legal regulations around the world, so they are not modifiable on an individual basis. From time to time in the course of our business DR may modify these Terms and Exhibits and/or Services. DR will provide at least thirty (30) days’ advance notice via electronic posting or e-mail of any material change to these Terms, to the Exhibits or to the Services which we are collaborating on, unless applicable laws or regulatory requirements require DR to give earlier notice. If the change materially impairs our relationship, you may terminate the Agreement or the affected Exhibit(s) by providing DR thirty (30) days advance written notice of your election to terminate, provided that DR receives your notice within thirty (30) days of DR’s notice of the upcoming change. Subject to your termination rights in Section 25, your continued participation hereunder after the effective date of any modification to the Services or these Terms or Exhibits constitutes your acceptance of such modification.

27. 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 DR in your registration information, or to DR, at DR’s corporate office identified on its website, attention General Counsel, when delivered by commercial carrier and evidenced by the delivery receipt.

28. Injunctive Relief. Each party acknowledges that its breach of the Agreement would cause irreparable injury to the other party for which monetary damages might not be an adequate remedy. Accordingly, a party shall be entitled to seek injunctive relief and other equitable remedies in the event of a breach of the Agreement by the other party, without the necessity of posting a bond in connection therewith. The availability of injunctive relief shall be a cumulative, and not an exclusive, remedy available to a party. If a party breaches any of its covenants or obligations under the Agreement, that party agrees to pay all costs (including reasonable attorneys’ fees and costs) incurred by the other party in enforcing any of the covenants or provisions of the Agreement.

29. Governing Law. If DR’s U.S. entities are parties to these Terms or any Exhibit, disputes related thereto 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 DR’s European entities but not its U.S. entities are parties to these Terms or any Exhibit, disputes related hereto 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.

30. Miscellaneous. The approved Registration From, these Terms, and any Exhibit(s) entered into pursuant to these Terms contain the entire agreement of the parties relating to the subject matter hereof, and supersede any previous and contemporaneous agreements and understandings with respect to the subject matter hereof, and may not be amended or modified except by a writing signed by the parties hereto or by DR in accordance with Section 26. No provisions in either party’s purchase orders, invoices or other business forms will alter the Agreement. 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. All provisions not affected by the invalidity shall remain in full force and effect. 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. The Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns. Neither party may assign the Agreement or delegate its duties hereunder (whether in whole or in part, directly or indirectly, by operation of law or otherwise) without the express prior written consent of the other party, except that a party may assign the Agreement without the prior written consent of the other party in connection with a merger or sale of all or substantially all of its assets or equity so long as it provides prompt written notice to the non-assigning party of the change, in which event the non-assigning party may terminate the Agreement if the assignment is to a direct competitor of the non-assigning party. Any claim by you or DR 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. DR may engage the services of subcontractors or agents to assist DR in the performance of its obligations provided that DR will be responsible for their acts and omissions in the performance of such obligations under the Agreement. No party will be in breach of the Agreement if it is unable to perform its obligations (other than any 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 or the affected Exhibit(s) without cause upon written notice to the other party.

Operational Terms Exhibit

These Operational Terms represent the basis of a working relationship between you and DR and replace any prior versions of these terms agreed between us. The primary aim of these Operational Terms is to clarify the roles and responsibilities of each party, the detail of services to be provided by you to DR and the standards to be adhered to by you and your suppliers. The underlying objective is to promote best practices between both parties.

1. Order Fulfillment

1.1 Receipt of Orders and Shipping. You will receive order files from DR 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.

1.2 Returns. Your return policy will at minimum match the return policy provided by the Brand to the Shopper. For example, if the Brand’s policy for the shopper is 30 days from the date of shipment then your policy to DR will not be less than 30 days from date of shipment. For all returns, full credit of the original product costs and all applicable taxes and fees will be credited to DR. You also agree to guarantee the credit to DR for returns that you notify DR have been received back at the warehouse.

1.3 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 (such as the following) to be sent to DR on a daily basis detailing all processed returns. Full credit of the original product costs and all applicable taxes and fees will be credited to DR.

Example Returns File Template

2. Cancellations. Cancellations will be requested by email from DR’s Logistics Team 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, DR acknowledges that you are not always able to stop the shipment before the delivery. Any orders confirmed as cancelled by you and subsequently shipped will be your responsibility; DR will not be responsible for payments for orders that are confirmed as cancelled by you and any invoiced but confirmed cancelled orders must be credited to DR. DR will not be responsible for recovery of goods confirmed cancelled but subsequently shipped, and the issuance of a credit note to DR is not contingent upon your recovery of product.

3. Duplicate Shipments. The costs associated with any orders fulfilled in duplicate will be your responsibility. Any invoices issued to DR in relation to a duplicate shipment must be credited to DR. DR will not be responsible for the recovery of goods associated with the duplicate shipment, and the issuance of a credit note to DR is not contingent upon your recovery of the product.

4 Contingency & Disaster Recovery Plan. You will maintain a documented Contingency Plan and a Disaster Recovery Plan to enable continuity of your business to best ensure the services defined in the SLA can be maintained.

5. Security & Access. You will maintain a documented security policy, systems, testing schedule and incident management protocol to best safeguard the integrity and security of all information held on whatever media or form. You will maintain physical access control and intruder detection systems, to the industry standard, to safeguard stock held.

6. SLA’s for Your response times on DR inquiries.

For any inquiries made by DR to you including but not limited to: ongoing business operations, escalations, and/or payment inquiries, you agree to adhere to the following response time SLA’s:

6.1 An initial response will be provided within 24 hours for all inquiries. The initial response may not answer all questions or provide all requested information but serves the purpose to let DR know the inquiry has been received.

o General day-to-day inquiries will have a resolution and response received within 48 hours. o Inquiries that are not considered day-to-day and that require additional investigation will have at minimum weekly progress updates.

6.2 Any issue caused by your system, staff, agents, or processes will require communications including root cause of the issue and steps taken to resolve the impact created as well as to prevent the issue from occurring in the future.

6.3 Escalations of a critical nature to the business including but not limited to unexpected integration/system downtime, security breach, or any issue that could severely negatively impact the consumer perception of DR or the Brand will have same day communication within 2 hours of awareness of the issue and then at minimum daily updates until the issue has been resolved.

Settlement Payment Process Exhibit

Under this Settlement Payment option, DR will make settlement payments to you, and you will pay the “Brand” (our mutual client whose products you distribute). This Settlement Payment process requires you to have a separate agreement between you and the Brand to address how you will pay the Brand.

1. Your Agreement with the Brand. If DR enters into the Agreement with you, you acknowledge that DR does so in reliance upon the Agreement, the length of the term and scope of Solutions you and the Brand order, and that you have entered into (or will enter into) a separate binding agreement with the Brand for the use of the Solutions you and the Brand order. You must coordinate and adhere to your agreement with the Brand, including as it relates to your payment obligations to the Brand. For example, if the Brand authorizes a return or promotion, you must coordinate with the Brand to implement the return or promotion so that DR may act on it. If you have any contractual issues under your agreement with the Brand, including any payment issues, you must work out those issues directly with the Brand. If your agreement with the Brand terminates for any reason prior to the completion of the scope and services of Solutions you and the Brand ordered, you and the Brand will remain liable for your and the Brand’s obligations to DR under your and the Brand’s agreements with DR. You agree to indemnify, defend and hold DR harmless from and against any claims of liability of any kind relating to your agreements between you and the Brand, including any claims relating to payments.

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

3. Information You Provide. DR’s Global Seller Service Solution (“GSS” or the “Solution”) is dependent upon the information you provide or that you cause the Brand to provide (e.g., DR must know about the products in order for the Solution to legitimately resell the products, process payments for the products, and for the DR software logic to help determine if a purchase is fraudulent), so you must provide in a timely manner all information in your control reasonably required by DR to comply with DR’s obligations. If DR requires information that the Brand has and you do not have, then you are responsible to coordinate with the Brand to either obtain the information from the Brand and provide it to DR, or to act as a liaison between DR and the Brand and cause the Brand to send the information to DR. You must respond promptly to any request for direction, information, or approval that are reasonably necessary for DR to deliver the Solution for you or protect DR’s rights under the Agreement. The information you provide must be accurate, true and complete, and if any information is or becomes inaccurate or incomplete, you must immediately notify DR, and DR may require you to obtain additional risk and/or compliance approval from DR. As condition to such approval, DR may require additional obligations from you. In order to verify your information and compliance with the Agreement and as may be required of DR by the card associations, processor/acquiring banks or legal or regulatory payment authorities in connection with the resale of the products through the Solution, DR may require you to verify your information or to permit a third party auditor approved by DR to conduct an audit of your information, and you must fully cooperate with any reasonable requests for information or assistance by DR or the auditor. DR may share the reports with the card associations, processor/acquiring banks or legal or regulatory payment authorities used to provide the Solution to you as they require of DR.

4. Transaction Information. GSS will receive from the Brand’s connected online shopping experience the transaction information from you or the Brand as defined in the Registration Form. Details regarding the specific information and materials you and/or the Brand must provide can be found in the Guidelines and Best Practices. DR may rely and act on all details you or the Brand give to DR and/or that GSS collects regarding the shopper orders.

5. Trade Compliance Services. All offers for sale using GSS are subject to export control requirements and antitrust and fair-trade regulations and laws as set forth in the Guidelines and Best Practices. You must not submit to DR any transaction or offer any product for resale by DR that violates the export and/or other trade compliance provisions in the Guidelines and Best Practices. DR may cancel or not process any transaction, or decline to resell a product, suspend the resale of a product, and/or remove any product from GSS, that DR believes in good faith does not comply with the Guidelines and Best Practices. DR will notify you of any suspension of the sale of a product and, where possible, will consult with you before acting with respect to the suspension of the sale of a product.

6. Fraud Screening. DR will use fraud screening tools to screen for, detect, prevent, and take such other actions as DR deems 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 DR, based in part on fraud data points you are required to provide to DR in accordance with the Agreement plus your input where DR requests it to assist its anti-fraud efforts.

7. Other Risk Mitigation. DR may take other measures in its 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.

8. Taxes.

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

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

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

8.4 Taxes and Fees on Sales by DR to Shoppers. DR will use its 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 DR (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, DR will be the subject of the audit as the reseller to the shopper. Where relevant, you are required to provide DR with supporting evidence should it relate to your responsibility in the end-to-end supply chain (including, but not limited to, proof of export of goods and proof of delivery of goods to an end shopper).

8.5 Statutory Invoicing. DR will use commercially reasonable efforts to enable providing shoppers with the proper country specific tax invoice required for the order, where relevant.

8.6 Taxes on Sales by You to DR. 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 DR (e.g., for sales of product(s) by you to DR outside of United States jurisdictions) and, unless otherwise agreed, you will provide DR with a valid tax invoice for any taxes payable by DR to you. You will hold DR harmless from and against your failure to promptly and properly collect taxes from DR on the sale of a product from you to DR (including without limitation interest and penalties resulting therefrom).

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

8.8 Income Tax. In no event is DR 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 DR if DR is required to do so), or the preparation of any tax return related thereto.

9. Payment Transaction Processing. DR will use DR-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 Registration Form. If DR requests, you will provide shopper order validation and authorization information to DR. You will immediately inform DR if there is any reason to believe that any information and/or instructions you provided to DR have been incorrectly processed or sent to DR (including, but not limited to, incorrect instructions about refunded payments).

10. PCI Compliance. DR holds 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 DR processes annually. In addition, DR will tokenize all card transactions in a PCI compliant manner. At your request, DR will provide a copy of its then-current annual Attestation of Compliance. See help.digitalriver.com/compliance/Compliance.htm. Unless you use DR’s secure payment form, you will be and will remain PCI-DSS compliant. In addition, you must periodically provide proof of PCI-DSS compliance according to the regulations or guidelines imposed by banks, card associations or legal or regulatory payment authorities, which will include at least the PCI DSS self-assessment questionnaire.

11. Payment Instrument Validation. DR uses 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, DR will hold the order pending that action.

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

13. Process Authorizations, Refunds and Chargebacks. DR will process authorization(s), capture, refund and chargeback transactions for both single purchase transactions and recurring billing transactions through one of DR’s payment processing relationships.

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

13.2 Unreferenced Refunds Prohibited. GSS does not support unreferenced refunds. It will only support a refund associated with a sale transaction processed by GSS.

13.3 Not a Bank. DR is not a bank and DR does not provide loans or extend credit. To the extent pre-authorized by DR and offered in your online shopping or order capture experience, DR may accept payment for product(s) or services not immediately deliverable to the shopper, and may, in its sole discretion, initiate reversals or hold reserves for all or a portion of the charges processed by DR.

13.4 Payment Method Availability. DR 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 its payment processing relationships, or (iii) DR no longer accepts as an authorized payment method across its client base.

14. Order Orchestration.

14.1 Fulfillment Responsibility. DR is responsible for fulfillment of products DR resells to shoppers. DR will appoint you to act as DR’s fulfillment agent.

14.2 Fulfillment Information Required. You may select in the Registration Form to use the optional Fulfillment Service or alternative services for fulfillment of products DR resells. If you select alternative fulfillment services, you are responsible for an integration between GSS and those services to enable GSS to receive and respond to fulfillment requests or notices. If you are using the optional Fulfillment Service, the optional Fulfillment Terms will apply.

14.3 Fulfillment Status. You are solely responsible for sending a fulfillment request or notice in a timely manner in accordance with the Guidelines and Best Practices.

14.4 Notifications. GSS is configured to enable transactional notifications related to shopper and order events, including order confirmation, cancellation, and refunds. You are responsible for an integration between the notification functionality of any third-party commerce platform you have chosen to enable notifications in GSS.

15. Shopper Support Services.

15.1 Sole Responsibility. You and the Brand are solely responsible for the provision of all shopper relations for the sale and fulfillment of the products, including any sold by DR to shoppers through the Solution. As the reseller, DR 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 DR’s express prior written approval to do so, such approval not to be unreasonably withheld, delayed or conditioned.

15.2 Online Order Support. DR will provide you with access to its administration interface and/or APIs or reports for you to provide support to shoppers in connection with the sale and fulfillment of product(s) at a rate as set forth in a Registration Form. Please note that the information accessible through the administration interface and/or APIs and through the reports may differ due to the timing of the use of the administration interface and/or APIs and the processing of the reports.

15.3 Additional Order Support. If you would like DR to aid you with resolution of an escalated shopper service inquiry in connection with the sale or fulfillment of a product, DR will provide escalated shopper service support at rates set forth in a Registration Form.

16. Warranty and Recalls. You and the Brand are solely responsible for all warranty and recall obligations relating to product(s) in accordance with the Brand’s 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 DR of any public or private recall or claim of infringement, or of any other liability or claims involving or relating to a product DR offers for resale through GSS. DR will provide reasonable assistance in such cases, so long as you will pay all of DR’s related expenses.

17. Financial Dashboard. DR will provide you access to a financial dashboard which lists all payments made to you. You will have access through the financial dashboard to a periodic sales summary which represents aggregate payment information for a defined period of time as well as access to individual sales transactions. If you believe the financial dashboard has errors, you must notify DR of the error(s) within sixty (60) days of when the data was made available to you in order to be able to dispute the error(s).

18. Payments to You. Once DR has received notification of fulfillment for processed transactions, GSS will, directly or through a payment service provider, collect and reconcile the funds paid by the shopper for the purchase of the product, and payments to you through GSS for such settled transactions will be aggregated into a payment to you in accordance with the applicable Registration Form.

18.1 Payment Calculations. Payments to you are computed by taking the amounts collected, net of Transaction Costs (defined below), and then offsetting any refunds, chargebacks and penalties, and charges due to DR under the Agreement in accordance with the applicable Registration Form. If the collected amounts are not enough to cover the offsets, DR will invoice you for the difference in accordance with the payment terms in the applicable Registration Form. “Transaction Costs” are defined as amounts assessed or charged by third parties, including governments or other regulatory bodies, in connection with a transaction, such as any third-party shipping charges and tax or regulatory charges DR is obligated to pay, including any tax or other fee assessed against the value of individual transactions or assessed on a per item or per order basis (including but not limited to digital service tax), but specifically not including third party costs that are otherwise addressed in the Agreement, such as costs for payment methods or currency conversions.

18.2 Treatment of Refunds & Cancellations. DR is entitled to retain the Transaction Costs to the extent not capable of being recaptured by DR and charges earned on product(s) sold by DR, even if the transactions cannot be successfully settled, or if such product(s) or associated transactions become subject to refund or cancellation. DR is responsible for the remittance of Transaction Costs to third parties as applicable, and the third-party Transaction Costs shall not be remitted to you as this is part of DR’s value proposition.

18.3 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. GSS does not guarantee any shopper payment. DR 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. You agree to take reasonable steps to assist DR in handling any such dispute and you will be responsible for any chargeback fines imposed by the banks arising from errors or omissions created or contributed to by you or the Brand’s online shopping or order capture experience.

18.4 Payment Reversals. DR may charge you for each payment transaction reversal as set forth in a Registration Form. DR will treat any non-fraudulent payment reversal and any transaction identified as fraudulent or potentially fraudulent after settlement of payment but prior to receipt of a payment reversal for such transaction, as a refund validly provided by DR, if DR remains entitled to the charge for handling the payment reversal. 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 DR, the merchant bank or payment processor, will not be treated as a completed sale to a shopper by DR for the purposes of calculating payments due to you.

19. Termination of Agreement. The performance of the Solution is dependent on the information, materials and rights granted to DR under this Agreement and the agreement DR has (or will have) with the Brand. If the Brand terminates its Agreement with DR for any reason, DR will be unable to perform the Solution as it relates to that Brand and DR may terminate this Agreement with you as it relates to such Brand, without any liability to you. Following any notice of termination or non-renewal, we may create a deposit from remaining payments due to you in an amount we reasonably estimate to cover potential liabilities associated with providing the services set forth in this Agreement that may occur following the effective date of termination (the “Wind-down Deposit”). After termination of this Agreement, we will release portions of the Wind-down Deposit in monthly steps, as determined in our sole discretion, to account for the decrease in risk exposure until the full Wind-down Deposit is released, no later than one hundred and eighty (180) days following the termination of this Agreement.

20. Additional Services – Physical Product(s). The following sections apply if the product(s) DR resells include physical product(s). The type of product(s) (digital, physical, or services) DR offers for sale to shoppers under the Agreement will be specified in a Registration Form.

20.1 Shipping Methods and Rates. GSS receives available shipping method(s) and relevant respective shipping rates from your fulfillment service (which may be DR’s Fulfillment Service).

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

20.3 Order Cancellation. Upon your instruction to GSS, DR will communicate to your fulfillment service (which may be DR’s 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)).

20.4 Warehousing and Delivery. You are responsible for warehousing and delivery to the shopper of products DR offers for sale under the Agreement. In the event of a conflict between the Agreement and any Incoterms, the Agreement will control.

20.5 Export. For cross-border sales from DR to online shoppers, you (as DR’s 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 and reporting required by export control laws, including without limitation EEI filings.

20.6 Physical Products Delivered by You as DR’s Fulfillment Agent.

20.6.1 Inventory Controlled by You for Resale by DR. DR 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 a Registration Form, including all certifications, approvals and authorizations needed for use in those countries.

20.6.2 Inventory Fulfilled by You. You are responsible for warehousing and delivering products to shoppers for DR (as DR’s fulfillment agent), and you accept the limited appointment as DR’s fulfillment agent for this express purpose. 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 will provide DR with timely proof of shipment for a given shipment upon DR’s request. For all shipments of physical products to your warehouse, you will be the importer of record (where applicable), will be responsible for all expenses associated with shipment, and will bear the risk of loss.

20.6.3 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 the products while in your, or your agent’s, possession or control, and during shipment to the shopper. You will provide DR with your warehousing and shipping rate schedule for the performance of your warehousing and delivery obligations as DR’s fulfillment agent, which may be changed by you upon thirty (30) calendar days written notice to DR. DR will pay you the fees charged by DR to the shopper for shipping and handling for each product fulfilled by you on DR’s behalf. You agree that the fulfillment fee due to you will be reduced or waived for any discounted shipping promotion or free shipping promotion you offer to the shopper.

20.6.4 Delivery Delays Caused by You. DR 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 DR.

20.6.5 Exporter of Record (for Cross-Border Shipments). DR will be the exporter of record with you acting as DR’s agent for export control purposes. If required by law, DR will execute a “designation of forwarding agent” in the form provided by DR in connection with your role as DR’s fulfillment agent for export control purposes.

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

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

20.7 Returns of Physical Product(s).

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

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

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

21. Optional Services – Fulfillment Services. The following sections apply if you are using DR’s Fulfillment Services for physical products as indicated in a Registration Form.

21.1 Inventory Visibility. With appropriate configuration, the Fulfillment Service provides SKU level inventory availability data for physical goods from all inventory locations across your enterprise.

21.2 Backorders. If permitted and applicable, you must configure rules for handling backorders in the Fulfillment Service.

21.3 Fulfillment Routing. The Fulfillment Service’s sourcing rules allow you to configure which inventory location will fulfill a given order.

21.4 Order Splitting Rules. The Fulfillment Service can be configured with order splitting rules allowing you to determine if orders with multiple items can be shipped separately so they arrive faster, or shipped together, saving costs.

21.5 Shipment Notification. The Fulfillment Service will receive notifications that all or part of an order has been shipped. You must provide GSS with updates to the status of all or part of an order that has been shipped.

21.6 Tracking Information. Once an order leaves the warehouse, shipment-level tracking information is available through the Fulfillment Service for use by you (major carriers only).

21.7 RMA Rules. The Fulfillment Service will use your configuration to determine and provide the appropriate return address and send a Return Merchandise Authorization (RMA) to a designated warehouse to alert them of the return of a physical product. The warehouse must provide to GSS notification of receipt of a return and its condition. GSS will determine if a refund should be generated upon receipt of notification of the return and its condition according to DR’s Guidelines and Best Practices.

21.8 Shipping / Order History. The shopper’s historical order data will be stored in GSS, and made available only to you, DR and the Brand, in a manner consistent with all required regulations and rules

Invoice Payment Exhibit

1. Carrier/Freight costs. All carrier and freight related costs, surcharges, failed delivery returns administration, failed delivery returns freight and all other fulfillment related costs are required to be fully disclosed by you up front to DR via e-mail. These costs are consolidated and presented to the shopper on the e-commerce store. It is essential that there are no hidden costs as DR cannot recoup any costs that are not provided during the shopper purchase. You will invoice DR the agreed Freight costs on a monthly basis in the agreed Monthly Summary Invoice Report (based on the Invoice Payment Exhibit-Sample Monthly Invoice Summary Report). The shipping price will be invoiced together with each order and will be seen in each invoice as a separate field from the price of the products. This will be reflected in the monthly billing report. DR will be responsible for Freight out and failed delivery returns cost only, and you will assume all other relevant costs, unless agreed in writing by both parties. You must provide all Freight Cost increases to DR with at least 30 days’ advance written notice of the increase.

2. Product Cost. You will provide prices to DR via the catalog file integration on a daily basis. Within the shipment confirmation file that is passed to DR for individual orders, you must include a field at the line-item level thatrepresents the cost of the product you will invoice to DR.

3. Payment Terms. In order to minimize administrative burden on both parties, DR will process and pay invoices from a Monthly Summary Invoice Report that you will provide to DR. You must provide the Monthly Summary Invoice Report in a format that meets the requirements of DR’s finance team (in accordance with the Invoice Payment Exhibit-Sample Monthly Invoice Summary Report. If DR identifies any errors or discrepancies in your Monthly Summary Invoice Report, you must resolve them within two (2) Business Days of receipt of notice from DR. You must invoice all costs within three (3) months of the date of when the cost was incurred. Any requests for payment of costs outside this period will be at DR’s discretion. You must provide the first Monthly Summary Invoice Report to DR by Business Day 1. DR will process all invoices pursuant to the Monthly Summary Invoice Report within twenty-five (25) calendar days after DR’s receipt of the Monthly Summary Invoice Report. Payment terms will then be thirty (30) days form the date the invoice is processed by DR. You acknowledge this will result in invoices going past the thirty (30) day period and you agree you will not apply any penalties, credit hold, shipment hold or other restrictions that would impact the shipping of orders. This process may be revised anytime upon mutual agreement, and in such case the mutually agreed revisions will become effective one month after the last Monthly payment DR has processed.

Sample Monthly Summary Invoice Report

Required Summary Invoice Report Fields:

Shopper PO Number (Digital River Order ID)

VAT Number Invoice FROM

VAT Number Invoice TO

Invoice/CR Note Number

Invoice Date

SKU

Product Description

Ship Quantity

Unit Price

Unit Price x Quantity Amount

Freight

VAT

Total including VAT

Currency

Terms and Conditions

These Terms were last updated on April 27, 2022.

1. General 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”. 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 The Digital River Goal. Our goal at Digital River is to help you simplify and expand your eCommerce sales on a global basis. We do this by optimizing your trading pattern without your need to invest in the local infrastructures required to manage the complex and ever-changing landscape of local regulations and taxes. You control your shopper experiences, and our solution helps you increase your global sales and comply with applicable laws.
1.3 Our Solution. Digital River’s core product is a fully-integrated suite of back-end services – compliance, fraud, risk, tax, and payments – called Global Seller Services (“GSS”) that is delivered through our proprietary technology. GSS incorporates and is enabled by our business model, where we act as a virtual reseller of your products or services. GSS is bundled with other technological capabilities to offer a product suite designed to facilitate your use of GSS (collectively, the “Solution”), as applicable to your industry segment or vertical.

1.4 Applicable Terms. Use of the Solution is governed by these Terms, the Standards listed below, and mutually approved Order Form(s) that identify specifics for the Solution you order (collectively the “Agreement”). The Order Form is the only portion of the Agreement you will sign. Standards for the Solution:

– the Data Handling Standards; and

– the Guidelines & Best Practices – our proprietary guidelines to eCommerce which describe the legal framework(s), Application Programming Interface(s) (“APIs”) and implementation guidance necessary to conduct online commerce in compliance with local regulations using our Solution. These are provided via confidential links and may not be accessed without a non-disclosure agreement between us.

1.5 Your Business and Shopper Experience. As between you and us, you are fully responsible for all aspects of your business and shopper experiences, including: (i) your website and online shopping experience; (ii) your online order capture experience(to the extent we are not directly providing the capture experience for you); (iii) your products and services (and the use or misuse of your products and services), any warranties or recalls related to your products and services, and any infringement issues; (iv) shopper relations, including support service for any installation, use, configuration and operation of your products and services; (v) your systems or the systems you procure from third parties, including any downtime, errors or fraud on such systems; (vi) your personnel; and (vii) your compliance with all laws, rules and regulations applicable to your responsibilities, including without limitation those relating to consumer protection, privacy, import or export compliance, money laundering, and data security. In order to connect to and use the Solution you must implement and maintain your eCommerce shopper experience in accordance with the Agreement and APIs for the Solution and territories listed in your Order Form so that your shopper/transaction data follows the rules required to transact business related to the Solution in the applicable territory. If, from time to time, there are material changes to the Agreement and/or APIs as they apply to the Solution (for example, due to changes in local laws or regulations), we will notify you in advance where governmental and regulatory communication timelines permit and you must comply with those changes to continue using the Solution.

1.6 Information You Provide. Our Solution is dependent upon the information you provide to us (e.g., we must know about your products in order for our Solution to legitimately sell your products, process payments for your products, and for our software logic to help determine if a purchase is fraudulent), so you must provide to us 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 are reasonably necessary for 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 inaccurate or incomplete, you must immediately notify us, and we may require you to obtain additional risk and/or compliance approval from us and we, as a condition to such approval, may require additional obligations from you. In order to verify your information and compliance with the Agreement and as may be required by the card associations, processor/acquiring banks or legal or regulatory payment authorities in connection with your use of the Solution, we may require you to verify your information or to permit a third party auditor approved by us to conduct an audit of your information, and you must fully cooperate with any reasonable requests for information or assistance by us or the auditor. We may share the reports with the card associations, processor/acquiring banks or legal or regulatory payment authorities used to provide the Solution to you as they require.

1.7 Licenses. During the term of your use of the Solution, (i) we grant you a license to use our APIs and/or administration interface applicable to the Solution solely for your use of the Solution, and (ii) if the Solution requires either of us to use the other party’s trademarks and logos to perform or use the Solution, we each hereby grant the other party a license to do so solely as required in connection with the performance or use of the Solution under the Agreement, and only in the form and with appropriate legends as required by the other party. With your express written permission, we may also include your company name and logo in our marketing materials.

1.8 Ownership and Intellectual Property. As between you and us, you own all of your Confidential Information and materials you provide to us, 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.

1.9 Confidentiality and Protection of Personal Data. 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 we will remain liable for any breach by them of this confidentiality provision. You may disclose Confidential Information to your third-party providers who are subject to a written confidentiality obligation no less restrictive than this provision only to the extent necessary for your use of the Solution, and you 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. 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. 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 https://www.digitalriver.com/compliance/.

1.10 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.

1.11 Termination.

1.11.1 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.
1.11.2 In addition, you may terminate the Agreement or an affected Solution on thirty (30) days’ advance notice if we 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.
1.11.3 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 card associations, processor/acquiring banks, or legal or regulatory payment authorities, (c) violates our territorial restrictions for permitted commerce, or (d) violates our restrictions for the types of product we will resell;. 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.
1.11.4 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 the information necessary for recurring payments to you, 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 Representations and Warranties; Limitations on Liability; Indemnification.

1.12.1 Representations and Warranties. You represent, warrant and covenant that: – You have all necessary rights, authorizations, licenses and permits for your operations, and you have undertaken and fulfilled all actions and conditions to enter, to perform under, and to comply with your obligations under the Agreement. – You will operate your business, including your websites and online shopping experience(s), in a professional manner in accordance with all applicable laws, rules, regulations and generally accepted standards and practices in your industry, including export/import restrictions relating to your products and services (including without limitation those restricting the parties with whom you or we may engage in business due to their location in an embargoed or sanctioned country or their designation on any governmental Restricted Parties List, and those restricting the sale of products for prohibited end-uses). – Your products, services and websites (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 our part (except with respect to video games, within guidelines acceptable by the governing rating agencies, for which you will remain fully responsible), and (ii) do not violate any product-related laws or infringe or misappropriate any third party intellectual property or proprietary rights. – You will only provide us with information, items and materials that are complete, accurate and timely, that you own or otherwise have the right to enter into the Solution or provide to us, and that we may use in connection with the Solution without infringing or misappropriating any third party’s privacy, confidentiality or other rights.
1.12.2 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.
1.12.3 Limitations on Liability EXCEPT FOR OUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 1.12.4 AND FOR ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY US, 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 RECURRING FEES YOUR DISTRIBUTOR PAID TO US RELATED TO THIS 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 MATERIALLY INDUCED 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.
1.12.4 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 1.5 (Your Business), Section 1.6 (Information You Provide), or Section 1.13 (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.

1.13 Our “Know Your Customer” and Anti Money Laundering Regulatory Obligations. When we enter into an Order Form with you, we will be taking on online sales related risks on your behalf by acting as your online reseller, processing regulatory requirements, taxes and payments for you and delivering the Solution for you. To set up your account, you must provide us certain information we will request, which includes completing our Know Your Customer account verification form and may include you providing additional information required to comply with anti-money laundering regulations. We will also conduct, and you authorize us to conduct, a customary commercial background check for these purposes and to assess the risk of our doing business with you. Your failure to provide true, accurate and complete information to us may result in us denying your account registration or suspending or terminating our business relationship.

1.14 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, regulations and market conditions around the world, or as required by our third-party providers). 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 1.11.2. Subject to your termination rights in Section 1.11.2, 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.

1.15 Miscellaneous. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, 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 1.14. 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.

1.16 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 registration account, 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.

1.17 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.

1.18 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.

1.19 No Third-Part 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.

1.20 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.

1.21 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.

1.22 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.

1.23 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.

1.24 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.

2. Global Seller Services Terms and Conditions.

2.1 Your Shopping Experience. Your online shopping experience must comply with our Guidelines and Best Practices.

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

2.3 Transaction Information. GSS will receive from your connected online shopping experience the transaction information from you. Details regarding the specific information and materials you must provide can be found in the Guidelines and Best Practices. We may rely and act on all details you give to us and/or that GSS collects regarding the shopper orders.

2.4 Notice to Shoppers. You must provide notice to the shopper addressing our role as your reseller and our collection of personal information, as further described in our Guidelines and Best Practices.

2.5 Trade Compliance Services. All offers for sale using GSS are subject to export control requirements and antitrust and fair-trade regulations and laws as set forth in our Guidelines and Best Practices. You must not submit to us any transaction or offer any product for resale by us that violates the export and/or other trade compliance provisions in the Guidelines and Best Practices. We may cancel or not process any transaction, or decline to resell a product, suspend the resale of a product, and/or remove any product from GSS, that we believe in good faith does not comply with the Guidelines and Best Practices. We will notify you of any suspension of the sale of a product and, where possible, will consult with you before acting with respect to the suspension of the sale of a product.

2.6 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.

2.7 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.

2.8 Taxes.

2.8.1 Transaction Taxes and Regulatory Fees. We will collect and remit the appropriate taxes and regulatory compliance fee(s) for sellers, if any are applicable.
2.8.2 Tax Identification Management. For certain jurisdictions where it is relevant, we will provide services to collect tax identifiers from shoppers from your online shopping or order capture experience to determine the tax treatment for the order.
2.8.3 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.
2.8.4 Taxes and Fees on Sales by Us to Shoppers. 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.
2.8.5 Statutory Invoicing. We will use commercially reasonable efforts to enable providing shoppers with the proper country specific tax invoice required for the order.

2.9 Payment Transaction Processing. You will only submit payment data that is derived from a shopper order that is valid and authorized by the shopper from your online shopping or order capture experience connected to GSS. 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).

2.10 Shopper Support Services. Unless otherwise agreed, you and your Distributor are responsible for the provision of all shopper service and support for the sale and fulfillment of your products, including any sold by us to shoppers through the Solution. 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.

2.11 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.

2.12 Data Access. We will provide you access to enable transaction searching, history and data, as well as support for using it.

3 Distributor Relationship.

3.1 General. To help you sell your physical products, we will purchase your physical products from your Distributor and act as the seller of record to resell them under the laws of the applicable territories to online shoppers.
3.2 Your Agreement with your Distributor. If we enter into the Agreement with you, you acknowledge that we do so in reliance upon the Agreement, the length of the term and scope of Solutions you and your Distributor order from us, and that you have entered into (or will enter into) a separate binding agreement with your Distributor for the use of the Solutions you and your Distributor order. You must coordinate and adhere to your agreement with your Distributor, including as it relates to payment by your Distributor to you. If you have any contractual issues with your Distributor, including any payment issues, you must work out those issues directly with your Distributor. If your agreement with your Distributor terminates for any reason prior to the completion of the scope and services of Solutions you and your Distributor ordered, you and your Distributor will remain liable for your and your Distributor’s obligations to us under your and your Distributor’s Agreements with us. You agree to indemnify, defend and hold us harmless from and against any claims of liability of any kind relating to your agreements between you and your Distributor, including any claims relating to payments.
3.3 Inventory Controlled by Your Distributor for Resale by Us. We will only accept for resale (i) inventory your distributor owns (which you or your distributor will continue to own while in the 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, including all certifications, approvals and authorizations needed for use in those countries.
3.4 Your Distributor’s Obligations. Your distributor is responsible for warehousing and delivery of any products we purchase from the distributor for our resale through GSS. We will be the exporter of record with the distributor acting as our agent. The distributor will be responsible for fulfillment and returns of the products in accordance with the distribution and fulfillment agreement between us and the distributor. The distributor is solely responsible for product procurement, warehousing, inventory management, order processing, and pick/pack/ship, and you are solely responsible for ensuring that the distributor has adequate inventory of any of your products we purchase from the distributor for resale through GSS. You will be responsible for the accurate information for your products in the distributor’s warehouse, such as but not limited to, export classifications, proper packaging, labeling, certifications, approvals and authorizations that will be used to complete export documentation for customs filings/requirements.
3.5 Payments. We will work with your Distributor to process payments in accordance with parameters agreed to between us and your Distributor.
3.6 Termination of Distributor Agreement. The performance of our Solution is dependent on the information, materials and rights granted to us under this Agreement and the agreement we have (or will have) with your Distributor. If your Distributor terminates its agreement with us for any reason, we will be unable to provide the Solutions for you and we may terminate our Agreement with you, without any liability to you.