Terms & Conditions

Connector Solution

Commerce Solution

Terms and Conditions

These Terms were last updated on January 12, 2022.

General Terms and Conditions

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 the Digital River family of companies (including Digital River, Inc., Digital River Ireland Limited, Digital River GmbH and/or DR globalTech, Inc.) 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; Appointment of Digital River as Reseller.  Digital River’s core product is a fully-integrated suite of back-end services – payments, tax, fraud and compliance – 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 an online reseller of your products.  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. When you use our Solution to sell your products, you appoinUt Digital River, and Digital River accepts the appointment, to resell and distribute your products to shoppers.

1.4            Applicable Terms. Use of the Solution is governed by these Terms, the Standards listed below, and mutually approved Order Form(s) that identifies pricing and 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:

  • Service Level Agreement
  • Data Handling Standards
  • 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 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 resell your products, process payments for your products, calculate any taxes due, and for our software logic to help determine if a purchase is fraudulent), so you must provide to 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 is 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 of us by the card associations, processor/acquiring banks or legal or regulatory payment authorities in connection with our resale of your products through 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 of us.

1.7            Fees.  You agree to pay our fees and reimbursable expenses for the Solution you order in accordance with the applicable Order Form and as calculated under these Terms.

1.8            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.

1.9            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.

1.10         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 www.digitalriver.com/compliance.

1.11         Change in Circumstances.  If you are subject to a material change in circumstances (including without limitation a change in ownership, a material change in your financial condition, a material change in your products or services, or a change in the laws or regulations applicable to your business) that we believe, in good faith, is likely to cause you or us to be in violation of an applicable law, rule or regulation or which represents a significant economic or liability risk to us, we may immediately, on notice to you, (i) require you to establish and maintain a deposit account with us in an amount we in good faith specify, which may be funded by deductions from payments due to you from us, or by charging your account with us, or a deposit by you; (ii) institute a delay in our periodic payments to you; (iii) suspend or limit your use of the Solution; or (iv) terminate this Agreement.

1.12         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.

1.13         Termination. 

1.13.1     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.

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

1.13.3     In addition, we may suspend or terminate the Agreement or the Solution without penalty immediately upon written notice to you (i) if we determine in good faith that you are in breach of this Agreement as a result of activity that (a) is illegal, (b) is a violation of applicable rules, regulations or guidelines of a card association, processor/acquiring bank, or legal or regulatory payment authority with which we must comply when reselling your products, (c) violates our territorial restrictions for permitted commerce, or (d) violates our restrictions for the types of product we will resell; (ii) if we are directed to do so by a card association, processor/acquiring bank, or legal or regulatory payment authority; or (iii) in accordance with Section 1.11.  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.

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

1.13.5      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.

1.14         Representations and Warranties; Limitations on Liability; Indemnification. 

1.14.1     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.

1.14.2      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.

1.14.3      Limitations on Liability

IN ACCORDANCE WITH RISK ALLOCATIONS THAT ARE STANDARD WITHIN THE SELLER AND PAYMENT SERVICES INDUSTRY, THE PRICING FOR WHICH THE SOLUTION IS MADE AVAILABLE TO CLIENTS, AND THE REVENUE WE EARN UNDER THE AGREEMENT COMPARED TO THE REVENUE EARNED BY CLIENTS FOR TRANSACTIONS USING THE SOLUTION, RISKS BETWEEN US ARE ECONOMICALLY ALIGNED AS FOLLOWS:  THE AMOUNT OF OUR LIABILITY IS UNLIMITED FOR OUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 1.14.4, OUR PAYMENT OBLIGATIONS, OR TO THE EXTENT WE ARE GROSSLY NEGLIGENT OR COMMIT WILLFUL MISCONDUCT.  OTHERWISE YOUR EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY CLAIM RELATED TO THE SUBJECT MATTER OF THE AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE TOTAL AMOUNT OF ALL RECURRING FEES WE RECEIVED UNDER THE AGREEMENT DURING THE TWELVE MONTHS PRIOR TO WHEN THE FIRST CLAIM AROSE.  WE WILL NOT BE LIABLE FOR ANY (i) LOSS OR INTERRUPTION OF BUSINESS, (ii) ACCESS LIMITATIONS, DELAYS, INTERRUPTIONS OR DISTURBANCES TO THE SOLUTION, (iii) MISTAKES, DISTORTIONS OR DELAYS IN TRANSMISSIONS OF ELECTRONICALLY STORED INFORMATION, INCLUDING DISAPPEARANCES OF SUCH INFORMATION, (iv) ACTIONS OR INACTIONS BY YOU OR OF THIRD PARTIES (SUCH AS SHOPPERS OR YOUR SUPPLIERS), (v) AGREEMENTS YOU HAVE WITH YOUR SHOPPERS OR SUPPLIERS, OR FOR YOUR PRODUCTS, SERVICES, OR SYSTEMS, OR (vi) EVENTS BEYOND OUR REASONABLE CONTROL.

ALSO IN ACCORDANCE WITH RISK ALLOCATIONS THAT ARE STANDARD WITHIN THE SELLER AND PAYMENT SERVICES INDUSTRY, EXCEPT FOR ANY GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR LIABILITIES WHICH AS A MATTER OF LAW CANNOT BE LIMITED, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUE, OR FAILURE TO REALIZE EXPECTED SAVINGS, ARISING UNDER THE AGREEMENT OR RELATING TO THE SOLUTION, EVEN IF THE PARTY WAS ADVISED OF OR COULD HAVE REASONABLY FORESEEN THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY IN THESE TERMS APPLY EVEN IF A REMEDY IS DEEMED TO HAVE FAILED ITS ESSENTIAL PURPOSE. EACH PARTY acknowledgeS that THE OTHER PARTY’S acceptance of THIS Section has 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.

1.14.4      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 1.15 (Our “Know Your Customer” and Anti-Money Laundering Regulatory Obligations) of these Terms, and (ii) any failure to comply with applicable laws, rules or regulations to the extent the failure is caused by or results from your instructions, actions or omissions.

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

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

1.16         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. As part of our diligence, we may engage in any investigation of your finances, activities, and operations that we reasonably deem necessary to confirm your eligibility for and use of the Solution, and you agree to provide us with any information required to complete such investigation. You authorize us to share any information we collect or receive from or about you with the card associations, processor/acquiring banks or legal or regulatory payment authorities.  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. You agree to provide us with written notice not more than five (5) days after you receive a subpoena, civil investigative demand, or similar request for information from a federal, state, or local government, agency, or entity relating to your products and services sold through the Solution or your use of the Solution.  Your failure to provide true, accurate and complete information to us may result in us denying your account registration or suspending or terminating the Agreement.

1.17         Modifications.  From time to time in the course of our business we may modify the Agreement and/or the Solution (for example, to remain in compliance with changing laws, rules, regulations and market conditions around the world, or as required by the card associations or 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 1.13.2.  Subject to your termination rights in Section 1.13.2, your continued use of the Solution after the effective date of any modification to the Solution or the Agreement constitutes your acceptance of such modification.

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

 

1.19         Miscellaneous.  These Terms, the applicable Standards, including the Guidelines and Best Practices, and the relevant mutually approved Order Form(s) constitute the entire agreement between the parties with respect to the subject matter hereof and in the applicable Order Form(s), 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 1.16.  If there is any conflict between the provisions in the Agreement and any mutually approved Order Form between the parties, the mutually approved Order Form will control.

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

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

1.22         Third Party Requirements. These Terms are designed for the Solution to coordinate with the requirements of our third-party providers and comply with applicable legal regulations around the world, so they are not modifiable on an individual client basis. You may be required to agree to additional appendices and/or agreements with us and/or our third-party financial institutions, processors, or card associations that contain terms and obligations specific to certain solutions under our Global Seller Services. We do not warrant that a third-party financial institution, processor or payment services provider will enter into a relationship with you to provide any portion of the GSS. Any third-party financial institution, processor or payment services provider is an independent third party and we are not liable for any actions or inactions of third parties, included but not limited to, a third party’s unwillingness to work with you.

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

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

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

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

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

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

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

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

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 to us.  Upon our request you will provide to us written certification of your compliance with your obligations signed by an officer and such other information related to such compliance as we may reasonably request from time to time.

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

 

2.4            Transaction Information.  GSS will receive from your connected online shopping experience the transaction information from you as defined in the Order Form.  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.

2.5            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. You must provide our terms of sale to the shopper, which will govern our resale of the product to the shopper.

2.6            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/import 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 our approved products or 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.

2.7            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.

2.8            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.

2.9            Taxes.

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

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

2.9.3        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.

2.9.4        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.

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

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

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

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

2.10         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).

2.11         PCI Compliance. We hold and will continue to hold through the term of your use of GSS, a PCI Data Security Standard (PCI-DSS) certification appropriate for the card volume we process annually.  In addition, we will tokenize all card transactions in a PCI compliant manner.  At your request, we will provide a copy of our then-current annual Attestation of Compliance. See www.digitalriver.com/compliance.

Unless you use our 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.

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

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

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

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

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

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

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

2.15         Order Orchestration.

2.15.1      Fulfillment Responsibility.  We are responsible for fulfillment of products we resell to shoppers. We may appoint you or a third-party distributor to act as our fulfillment agent.

2.15.2      Fulfillment Information Required. You may select in the Order Form to use our optional Fulfillment Service or alternative services for fulfillment of products we resell. 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 our optional Fulfillment Service, the optional Fulfillment Terms will apply.

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

2.15.4      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.

2.16         Shopper Support Services.

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

2.16.2      Online Order Support.  We will provide you with access to our 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 an Order 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.

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

2.17         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.

2.18         Financial Dashboard.  We 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 us 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).

2.19         Payments to You.  Once we have 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 your product, and payments to you through GSS for such settled transactions will be aggregated into a payment to you in accordance with the applicable Order Form.

2.19.1      Payment Calculations.  Our 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 our charges due to us under the Agreement in accordance with the applicable Order Form. If the collected amounts are not enough to cover the offsets, we will invoice you for the difference in accordance with the payment terms in the applicable Order 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 shipping charges, tax or regulatory charges, or duty or fee we are 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.

2.19.2      Treatment of Refunds & Cancellations.  We are entitled to retain the Transaction Costs to the extent not capable of being recaptured by us and charges earned on product(s) sold by us, even if the transactions cannot be successfully settled, or if such product(s) or associated transactions become subject to refund or cancellation.  We are 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 our value proposition.

2.19.3      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.  We will have complete discretion regarding the settlement of any kind of reversed payments and/or disputes with partner banks, including but not limited to, the settlement of disputes regarding reversed payments. You agree to take reasonable steps to assist us 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 your online shopping or order capture experience.

2.19.4      Payment Reversals.  We may charge you for each payment transaction reversal as set forth in an Order Form.  We 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 us, if we remain 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 us, the merchant bank or payment processor, will not be treated as a completed sale to a shopper by us for the purposes of calculating payments due to you.

3. Additional Services – Physical Product(s).

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

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

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

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

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

3.5            Physical Products Delivered by You as Our Fulfillment Agent.

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

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

3.5.3        Shipping Costs; Discounts. You will use your own or your agent’s shipping account for the shipment of physical products and are responsible for all risk of loss for your products while in your, or your agent’s, possession or control, and during shipment to the shopper.  You will provide us with your warehousing and shipping rate schedule for the performance of your warehousing and delivery obligations as our fulfillment agent, which may be changed by you upon thirty (30) calendar days written notice to us.  We will pay you the fees charged by us to the shopper for shipping and handling for each product fulfilled by you on our 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.

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

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

3.6            Warehousing and Delivery by Distributors.

3.6.1        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.

3.6.2        Your Distributor’s Obligations.  If you have a contractual relationship with a distributor to sell your products to us for our resale, the distributor is responsible for warehousing and delivery of any products we purchase from the distributor for our resale through GSS. 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. If you offer a shipping discount to the shopper, we will have the right to offset the amount of the discount taken by the shopper from amounts due to you under the Agreement.

3.6.3        Payment.  Payments to you under the Agreement for our sale of a product we purchased from a distributor are computed by taking the net of the sales price of the product for those products for which we received payment less the sum of (a) the purchase price of the product by us from a distributor, inclusive of all applicable taxes and fees, (b) our charges as set forth in the Order Form attributable to the transaction,  (c) amounts refunded to purchasers for products subject to return or cancellation (net of any credits we received from distributors for returned products), and (d) any amounts subject to chargeback.

3.7            Cross Border Commerce.

3.7.1        Exporter of Record. For Order Forms entered into on January 12, 2022 or later, you will be the exporter of record for export control purposes under our Standard Export Model, in which you, or your forwarding agent, are responsible for (i) the legal and lawful export from the country in which the warehouse is located, and (ii) completion of all applicable export documentation, export declarations, and reporting required by export control laws, including without limitation EEI filings.  Title for products sold through GSS involving cross-border shipments will transfer from you to DR after export and from DR to the shopper before import into the destination jurisdiction.

For Order Forms entered into before January 12, 2022, we will be the exporter of record with you or your third-party fulfillment agent acting as our agent for export control purposes.  If required by law, we will execute a “designation of forwarding agent” in the form provided by us in connection with your role as our fulfillment agent for export control purposes. We, or our forwarding agent (which may include you if you are the 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.

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

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

3.7.4        Landed Cost. If you enable utilization of our Landed Cost capability to provide shoppers the additional convenience of being able to prepay any import taxes, customs duties, disbursement fees, advancement fees or similar fees that may be imposed by the shipper, broker, customs authority of the destination jurisdiction or other third party (“Import Fees”), we will make commercially reasonable efforts to estimate the amount of Import Fees and collect the estimated fees from the shopper. You will be responsible for any shortage between the collected fees and the actual Import Fees. If, however, you are using our Global Logistics Service, we will guarantee the Import Fees collected from the shopper and no additional landed cost fees will be charged to you even if the actual Import Fees exceed the pre-paid fees.

 

3.8            Returns of Physical Product(s).

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

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

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

4. Optional Services – Fulfillment Services.

The following sections apply if you are using our Fulfillment Services for physical products as indicated in an Order Form.

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

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

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

4.4            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.

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

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

4.7            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 our Guidelines and Best Practices.

4.8            Shipping / Order History.  Your shopper’s historical order data will be stored in GSS, and made available only to you and us, in a manner consistent with all required regulations and rules.

Digital River Managed Warehouse Service – Legacy. The following sections apply if you are using our legacy Managed Warehouse Service for physical products as indicated in an Order Form.

5. Digital River Managed Warehouse Service – Legacy.

5.1            Physical Products You Provide to Us.  You will provide us with, and we will only accept (i) inventory you own (which you will continue to own while in our or our agent’s warehouse) that is customs cleared (duty/tax paid) in free circulation available for resale, (ii) inventory of the latest version of each product prepackaged and ready for shipment, appropriately labeled for use in the approved countries as set forth in an Order Form including all certifications, approvals and authorizations needed for use in those countries, and (iii) additional inventory we need from time to time to maintain adequate inventory to fill anticipated order volumes based on projected purchase patterns.  For physical products you ship to us, you will be importer of record and will be responsible for all expenses associated with, and will bear the risk of loss for, the shipments.

5.1.1        Loss of Product.  We will use reasonable efforts to preserve at least ninety-nine and one-half percent (99.5%) of the products that you place in our custody or control in our or our agent’s warehouse, each calendar quarter.  At the end of each calendar quarter, in the event of any loss of more than one-half percent (0.5%) of the warehoused inventory, we will pay you the replacement value of the physical materials constituting the lost products upon reasonable proof of the products’ replacement value (which must include, at a minimum, documentation of invoices for materials costs).  If product is lost during shipment from our or our agent’s warehouse to the shopper, our liability is limited to the standards imposed by the common carrier.

5.1.2        Shipping and Warehousing Costs; Discounts.  We will use our or our agent’s warehousing for products before shipments to shoppers and shipping account for shipments to shoppers. We will provide you with our shipping and warehousing costs for each product we fulfill. The shipping and warehousing costs will be paid by the shopper, and if you offer a shipping discount to the shopper, then you will pay us an amount equal to the discount taken by the shopper so we receive our full shipping, handling and warehousing costs.  If you have warehouse special project requests and we perform the request for you, you will pay us our warehouse account management fees, storage costs and costs relating to the warehouse special project request. We may offset any payments to you or invoice you for these warehouse costs.

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

5.1.4        Exporter of Record (for Cross-Border Shipments). You will be responsible for the accurate information for your products in our or our agent’s warehouse, such as but not limited to, export classifications, proper packaging, labeling, certifications, approvals and authorizations that will be used by us as exporter of record or our agent on our behalf to complete export documentation for customs filings/requirements.  Our third party fulfillment agent will act as our agent for export control purposes and will be responsible for proper and accurate completion of all documents and customs filings/requirements on our behalf based on information you supplied for your products.

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

5.1.6        Excess Product. We will provide you notice if we are maintaining excess inventory of your products. You will have thirty (30) days from receipt of notice to collect any excess product at your cost. If you fail to collect the excess product within the 30-day period, at our option we may either (a) dispose of your products in any manner we choose and charge you reasonable fees to do so, and/or (b) charge you storage and/or handling costs or fees to hold the products for you.

5.1.7        Inventory Transfers. You are responsible for all shipping arrangements and documents, including export documents, for all movements (in and out) of your inventory at our warehouse. We will arrange inventory transfers with our or our agent’s warehouse per your request. We will pass to you any required shipment information, including pick up confirmation number(s), for you to arrange pick up and shipment. We will pass shipment/export documents created by you or your agent to our or our agent’s warehouse to be included with the inventory for pick up/shipment. You will be responsible for, and we will charge you for, any fees or costs associated with inventory transfers.

5.1.8        Local Warehouse Requirements.  You are responsible for ensuring you have the requisite commercial requirements (such as licenses) to successfully complete a sale to us where our or our agent’s warehouse is located.

Solution Service Level Standards

Effective as of July 15, 2020

These Standards apply to the Solutions and are in addition to the terms in the Agreement. Capitalized terms used in these Standards have the same meaning as they do in the Agreement. These Standards are dependent upon your compliance with the best practices for your integration and platform usage, as defined in the Guidelines and Best Practices for the Solution you select, and upon your compliance with your responsibilities as defined in these Standards.

Service Levels

  1. Uptime. The Solution under the Agreement is available at least 99.9% of the time measured over each calendar Quarter (January 1, April 1, July 1, October 1). Availability is calculated separately by platform in accordance with the following formula: Availability formula
    Availability = total minutes per quarter - total minutes unavailable per quarter
    (Total minutes per Quarter)
  2. Limitation: This availability commitment only applies if your usage is less than:
    1. 1,000,000 milliseconds of compute time per five (5)-minute interval; and
    2. 6,000,000,000 milliseconds of compute time per month.
  3. Unavailability. A “service interruption” is any time exceeding five (5) consecutive minutes where our Order Takers (a) do not respond to any valid shopper request, or (b) provide only HTTP response codes 500, 502, 503, or 504 responses to all valid shopper requests, or (c) some combination of (a) and (b).“Order Taker” is defined as those systems within our checkout flow which respond to web requests.A period of “unavailability” (i) commences as of the earlier of the time we detect an incidence of a service interruption or the time that you notify us of the service interruption, and (ii) ends when our Order Takers commence providing routine responses to your shopper requests again. Unavailability shall be monitored by us.Unavailability shall not include any interruption arising from:
    1. scheduled maintenance and/or upgrades, including any redundant environments,
    2. your failure to follow the Guidelines and Best Practices,
    3. our suspension or termination of your right to use the Solution in accordance with the Agreement, or
    4. any event beyond our control, which includes without limitation any external interruption of power or telecommunications; denial of service, virus/worm or other attack; the failure or substantial failure of the Internet; the internet service provider or internal telecommunications equipment experienced by you or any of your customers; the browser configurations, hardware and/or software of you or any shopper; and/or any other force majeure event (including without limitation acts of God, terrorism, natural disaster, war, riots, and labor strife).

    We use all reasonable efforts to avoid having to take any redundant environments offline for executing schedule maintenance. Should under exceptional circumstances such maintenance nevertheless prove necessary, we will provide as much notice as practically possible and plan such maintenance in a manner and on a date and time to minimize the potential number of affected potential transactions.

  4. Shared Responsibility to Mitigate Risk. Security and compliance are a shared responsibility between us and you.We are responsible for taking reasonable precautions to mitigate the risk of unavailability, including but not limited to (a) use of anti-virus and anti-trojan software; (b) installation of available hardware and software patches; (c) implementation of industry standard security measures, such as firewall-based network segmentation, intrusion detection, and anti-dedicated denial of service (“anti-DDOS”) measures; (d) implementation of business continuity and disaster recovery measures, such as application redundancy and scheduled backups; and (e) maintaining redundant infrastructure providers.You are responsible for taking reasonable precautions to mitigate the risk of unavailability of the Solution to you, including but not limited to: (i) implementing proper input filtering, (ii) applying intrusion detection and web application firewall (WAF) practices, (iii) applying anti-DDOS measures, (iv) jointly investigating and resolving security and compliance issues as they impact both you and us from time to time, and (v) properly interpreting HTTP response code 429 from the Solution and waiting the directed amount of time before retrying the intended request.
  5. Business Continuity and Disaster Recovery. We maintain a business continuity and disaster recovery plan designed to minimize the impact to our operations of a man-made or natural disaster or other similar events which could impact our business operations and/or technology infrastructure. We annually test our ability to comply with our business continuity and disaster recovery plan and will make our results available upon request.
  6. Issue Resolution. We target resolution of issues, based on their severity. In the event an issue could be classified within more than one Severity Level, we shall initially classify the issue; in addition, we may, upon notice to you, reclassify the priority level of an issue as fixes are rendered and/or developed or the severity of the issue decreases. In the event you disagree with our classification or reclassification, as appropriate, you may contact us to discuss when a further reclassification of the issue is appropriate.
    Severity Level Description
    Level 1
    • Impact: Critical
    • Our Classification: Solution is down
    • Acknowledgment: As soon as possible (dependent on circumstances)
    • Issue Resolution: As soon as possible (dependent on circumstances)
    Level 2
    • Impact: High
    • Our Classification: Disruptive problem to the Solution impacting performance or availability
    • Acknowledgment: Within twenty-four (24) hours
    • Issue Resolution: As soon as possible (dependent on circumstances)
    Level 3
    • Impact: Medium
    • Our Classification: Some impact to the Solution; however, not vital to immediate performance or availability
    • Acknowledgment: Within two (2) business days
    • Issue Resolution: Within 5-10 business days of Acknowledgment, unless notified otherwise
    Level 4
    • Impact: Low
    • Our Classification: Minimal impact to the Solution
    • Acknowledgment: Within two (2) business days
    • Issue Resolution: We will evaluate and incorporate into maintenance release as we deem appropriate

    For the purposes of this table, the “Acknowledgment” is the time from when we first learn of a problem to when we initially contact to you by email or telephone acknowledging such reported issue; and “Issue Resolution” is when we substantially resolve the issue or begin a plan to resolve the issue, whichever occurs first.

  7. Remedies. If we fail to meet our availability commitment in any calendar quarter during which we were compensated for your use of the Solution, your sole and exclusive remedy is a service level credit as follows, subject to your rights in case of a continuous failure as described in section 8 below. The service level credit is calculated by applying the service credit percentage to the charges we earned and received less the cost of payment processing for transactions we processed during that calendar quarter for your use of the Solution. We will apply any service credits only against future Solution charges otherwise due from you. Service credits will not entitle you to any refund or other payment from us. Subject to section 8 below, the foregoing is your sole and exclusive remedy for our breach.
    Quarterly Uptime Percentage Service Credit Percentage
    Less than 99.9% but greater than or equal to 99.0% 10%
    Less than 99.0% but greater than or equal to 95.0% 25%
    Less than 95.0% 50%

     

    1. Remedy Procedure. To receive a service credit, you must submit a claim by opening a case with our Customer Success Team. To be eligible, we must receive your credit request within 30 days’ after the end of the calendar quarter in which the service level commitment was not met and must include:
      1. the words “SLA Credit Request – Solution” in the subject line;
      2. the dates and times of each period of unavailability that you are claiming;
      3. the calendar quarter with respect to which you are claiming service credits;
      4. Your request logs that document the errors and corroborate your claimed outage (any confidential or sensitive information in the logs should be removed or replaced with asterisks).

      If we confirm the Quarterly Uptime Percentage is less than our service commitment, then we will issue you a service credit within one billing cycle following the quarter in which we confirm your request. If you don’t provide your request and other information needed above, you will be disqualified from receiving a service credit.

  8. Alternative Remedy in Case of Continuous Failure. Should we fail to meet our availability commitment in any two (2) consecutive calendar quarters during which we were compensated for your use of the Solution, you shall, as an alternative remedy, be entitled to terminate the Agreement upon thirty (30) days’ prior written notice to us. For the avoidance of doubts, in case you decide to terminate the Agreement based on this provision you shall not be entitled to receive additional service credits for the calendar quarter giving rise to such termination right.In the event you fail to provide us with notice of such termination within forty-five (45) calendar days of the end of the calendar quarter giving rise to such termination right, you shall be deemed to have waived its right to terminate the Agreement for such failure (but shall have the right to so terminate if the condition is met in any subsequent two (2) calendar quarters).

Data Handling Standards

Data Handling Standards

Effective as of August 12, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Terms of Sale

Digital River’s Terms of Sale

Last Updated: September 13, 2021

Digital River, Inc. and its subsidiaries (collectively “Digital River”, “we”, and “us”) is a world-class online global reseller services provider. We provide essential compliance, fraud, tax and payment services to the supplier or manufacturer (“Supplier”) whose name appears on the website or commerce solution where these terms of sale (“Terms”) appear (“Site”). When we make products and service rights (“services”) available for sale through the Site, we do so as an authorised reseller on behalf of our Supplier.

IMPORTANT: Please read these Terms carefully before purchasing from the Site. They contain important limitations and exclusions that apply to your purchase from this Site, including limitations of liability and a mandatory arbitration clause. By placing an order on this Site, you agree to be bound by these Terms, and any sale through this Site is conditional upon your acceptance of them. If you do not agree to any of these Terms, you must discontinue use of this Site and you must not complete your order.

You are bound by the version of the Terms in effect on the date you complete your Order. However, we may change these Terms from time to time, and when we do, we will post them on the Site. It is your responsibility to review the Terms each time you make a purchase from us.

Identity of Operator

Digital River, Inc.

10380 Bren Road West

Minnetonka, MN 55343

Email address: onlinestore.en.cs@digitalriver.com

Section 1: Entire Agreement

These Terms contain the entire agreement between you and Digital River regarding your purchase of products or services from this Site, and they supersede any prior representations, agreements, or conditions implied by trade, course of dealing, or custom. No amendment to these Terms is enforceable against us unless submitted in writing and signed by us.

Section 2: Your Privacy

Our Privacy Policy, which is incorporated into these Terms by reference, governs your submission and our use of personal information through this Site. By submitting your personal information to us in connection with your order, you consent to us processing (either directly or through third party service providers) your information to fulfil your order in accordance with our Privacy Policy.

To view the applicable Privacy Policy, please click here.

Section 3: Your Obligations and Representations

This Site is not targeted or aimed at children or to other individuals who do not have the legal capacity to contract. By placing an order, you declare that you have the legal capacity to contract in the state or country of your residence. If you are placing an order on behalf of a third party, you declare that you have the authority to act on that party’s behalf and your acceptance of these Terms constitutes that third party’s acceptance.

You declare that you will comply with all applicable laws and regulations, including export and import regulations. You agree that you are not purchasing the products or services for export, re-sale, transfer, or use in violation of any applicable laws, including without limitation U.S. Export Administration Regulations or applicable U.S. sanctions and embargoes administered by the U.S. Treasury Department. You further agree that you will not use them for any illegal or unauthorised use.

You declare that the information you provide in connection with your purchase, including your physical address, email address, and payment information, is complete and accurate. You declare that you are authorised to charge and initiate a payment via the payment method you designate for your purchase.

Section 4: Placing an Order

When we offer products and services for sale on this Site, we are inviting you to make an offer to buy the products and services shown. When you place an order by clicking or activating the appropriate button or hyperlink on the Site, you are making us a legally binding offer to buy the products and services you have selected on these Terms.

We accept your offer only when we have received approval by your chosen payment method and when we have shipped your product or otherwise made it available to you, such as providing you with a download link.

At our discretion, we reserve the right to decline your offer and cancel your order. Any system-generated order confirmation we send when you complete your order is an acknowledgement of your offer only and is not an acceptance of your offer, which is subject to correction before shipment of your physical products or delivery of your services.

By placing an order, you are consenting to our use of electronic communications related to your transaction and the electronic delivery of notices, policies, and records of the transaction.

You agree that we may keep pertinent contract records, including communications and acknowledgements, as permitted by law.

Section 5: Product Description and Pricing

We make every attempt to ensure that the products and services offered for sale on the Site are described and represented as accurately and as completely as possible. However, mistakes may occur and if there are errors, we reserve the right to correct and revise.

Prices are subject to change. The prices payable are those prices valid at the time of our acceptance of your offer and are in the currency indicated on the Site. Unless otherwise indicated on the Site, prices for products and services do not include VAT, other taxes, delivery, export, or other charges.

Section 6: Payment Terms

You agree to pay for the product through the payment methods offered on this Site. Those payment methods may be subject to their own terms and conditions. We may use third party service providers to process and authorise your payment. By placing an order, you are authorising us and our third party service provider(s) to charge you for your purchase using your selected payment method. You further agree that we may charge the total amount of the purchase—including any applicable taxes, delivery, and customs charges—to your designated payment method. If we have delivered your product or service to you and your payment method fails for any reason, you agree to pay us the full amount due upon demand.

Section 7: Export

The products and services sold on this Site are subject to the import, export, and re-export laws and regulations of the United States and other countries. By completing a sale on the Site, you agree to comply with these import and export laws and regulations, including laws and regulations that place restrictions on the destinations, user, and end use of the products and services. You agree that you will not purchase or use any products or services offered for sale on this Site if any applicable laws in your country prohibit you from doing so. Accessing or using any products or services sold on this site in a location where their use is illegal is strictly prohibited.

No party that is designated on the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons (“SDN List”), available at https://www.treasury.gov/resource-center/sanctions/sdn-list/pages/default.aspx,https://www.treasury.gov/resource-center/sanctions/sdn-list/pages/default.aspx has or shall have any property interest whatsoever in the products purchased on this site.

By completing a sale on the Site, you declare that you are not on, and are not 50% or more owned by one or more persons or companies identified on the SDN List. You further declare that you are not acting on behalf of and will not divert any products purchased on this Site to (1) any restricted party identified by the U.S. Government; (2) any party blocked by operation of law; or (3) any prohibited end use or destination as set forth in the U.S. Export Administration Regulations.

Section 8: Customs and Import Costs

Your purchase of a physical product may be subject to customs tariffs, duties, fees, taxes, and/or other charges that may be payable in the destination country (“Import Costs”). Unless expressly stated by us during the ordering process, your payment for your order does not include these Import Costs. You agree that you, as the receiving party in the product’s destination country, are responsible for getting the products or services into the country in which you intend to use them, properly declaring the merchandise to the appropriate customs authorities, paying applicable Import Costs, and satisfying any additional import-related requirements.

When completing a sale, you may be given an option to prepay the Import Costs. We will use commercially reasonable efforts to estimate these Import Costs. However, because we do not control them, we cannot predict with 100% accuracy what the final Import Costs will be. You acknowledge that the actual import costs may vary from our estimate.

If you choose to prepay the Import Costs: Where the final Import Costs are greater than our estimate, we will not ask you to pay additional money, and where the final Import Costs are less than our estimate, we will not refund the difference.

If you choose not to prepay the Import Costs: You bear the responsibility of paying all actual Import Costs. If a party other than you pays some or all of the actual Import Costs on your behalf in order to effect clearance, you will reimburse, upon request, that party in full for the actual Import Costs. Your failure to pay Import Costs in a timely manner may cause delivery delays and may make you liable for tariffs and additional fees

You should contact the applicable customs office for information about what Import Costs, requirements, and procedures may be applicable to your purchase.

Section 9: Additional Terms

Your use of the products and services we offer may be subject to the additional terms of our Suppliers which will be presented to you at the time of your purchase or which may be delivered to you with your product or service. Prior to completing your purchase, carefully read any additional terms and conditions provided to you. Do not complete the sale if you do not agree to the terms. Where additional terms are delivered with your product or service, you must review them immediately. If you do not agree to those terms, you must not use the product or service, and must contact customer service to begin a return.

Where the product or service we offer for sale is software, we offer you a licence to use the software. Except where permitted by law or by the licence terms presented, the software may not be copied, adapted, translated, made available, distributed, varied, modified, disassembled, decompiled, reverse engineered, or combined with any other software.

With respect to your purchase of a right to use a service, such as with a warranty, software-as-a-service, or a digital admission for an offering operated and provided by our Supplier or a third party, we sell you an intangible right to access, use, or participate in that third party service for a specified period of time.  We are not the operator of a service and make no representations or guarantees as to the availability of that service.

Section 10: Shipping and Delivery

If we accept your offer, we will use commercially reasonable efforts to ship and deliver physical products to the destination you specified in the ordering process and indicated on the order acknowledgment we send you. You must check the delivery address you provided during the ordering process (“Delivery Address”). If there are any errors or omissions, you must contact us to correct the Delivery Address as soon as possible. We cannot change the shipping address after your order has been processed and fulfilled. We reserve the right to cancel your order and/or charge you for any extra costs that arise as a result of any change in the delivery address on your part.

Any delivery time frames we provide during the checkout process are estimates only and are not guaranteed.

Where we deliver product in instalments, each instalment constitutes a separate contract. Any defect in one or more instalment does not entitle you to repudiate the contract as a whole or cancel any subsequent instalment.

Section 11: Returns and Refunds

Digital River offers a standard 30-day return policy. However, certain products and services are subject to a different return policy.  Please refer to the return policy presented on the Site for any return policy that applies to your purchase.  Any right of return applicable to your purchase of software does not apply in the event you open the software shrink-wrap, break the licence seal, or use the software.

For shoppers outside of the United States, special terms may apply to your right to return and refund. Please see the Local International Terms section below.

If you have questions about your order, please contact us at onlinestore.en.cs@digitalriver.comonlinestore.en.cs@digitalriver.com and we will direct your inquiry to the appropriate customer service team for your order.

Section 12: Title and Risk of Loss

Provided your designated payment method has been honoured, (1) title to physical products transfers to you when we deliver the physical products to the Delivery Address; (2) title of digital products and services transfers when we make the product available for download.

Risk of loss (1) for physical products transfers to you when we deliver the physical goods to the delivery address; and (2) for digital products and services when we make the product available for download. If no signature is required for the delivery of physical goods, you accept all risk of loss for theft or loss when we deliver the product to the delivery address.

If you refuse delivery when our designated carrier attempts to make delivery of any physical products, you assume any risk of loss or damage to the products when the carrier attempts delivery. In that event, (1) you are still liable for full payment for the products that the carrier attempted to deliver; (2) you are liable for any additional costs attributable to your failure to take delivery, including storage costs; and (3) after 30 days, we shall be entitled to dispose of the products in a manner we deem appropriate and may offset any proceeds of a sale against any sums you owe us.

Section 13: Warranty

Except where required by law, or otherwise indicated by us in writing, we offer no warranty on the products and services we sell. We make no statements as to the quality, fitness for a specific purpose, performance, correspondence with description, software installation, configuration, or error or defect correction. You will receive the benefit of any warranty offered by the manufacturer, licensor, or supplier of the product or services in connection with the sale. For details of any warranty applicable to your purchase, refer to the relevant documentation supplied with the product or on the Site where you purchased your product or service. This documentation may also contain the procedures applicable to the repair or replacement of defective products.

Section 14: Limitation of Liability

Digital River is neither the manufacturer nor publisher of the products and services offered for sale on this Site. Except as otherwise provided for in these Terms, Digital River supplies products and services “as is” to the fullest extent permitted by law, with no warranties or representation of any kind. Digital River disclaims, to the fullest extent permitted by law all warranties, express, implied, and statutory, including all warranties of merchantability, fitness for a particular purpose, and non-infringement. The company does not warrant that any products will be in stock, safe, defect-free, conform to written or oral specifications, guarantees, representations or promises. Digital River does not warrant that the products will not be lost or damaged during delivery.

To the maximum extent permitted under applicable law, in no event and under no legal basis will Digital River, its suppliers, or licensors be liable to you or any third party for any damages, costs, or liabilities arising from or related to the purchase or use of any products or services or these terms, including, without limitation, any direct, indirect, incidental, consequential, or special damages (e.g. damages for expense or business interruption, property damage, attorneys’ fees, lost profits, lost use, revenue, goodwill, or value of assets or securities) even if Digital River has been advised or is otherwise aware of the possibility of such damages. Digital River’s total aggregate liability arising out of or related to the purchase and sale of a product or services is limited to the amount you paid to Digital River for such product or service.

The above limitations of liability form the fundamental basis of the bargain between you and Digital River. The above cap on liability will not apply to liability for Digital River for (a) death, personal injury, or property damage directly or indirectly caused by the item you purchased from Digital River; or (b) damages caused by Digital River’s fraud, fraudulent misrepresentations, intentional misconduct, gross negligence, or any other matters for which liability cannot be excluded or limited under applicable law.

Nothing in this section limits or excludes liability that cannot be limited or excluded under applicable law.

Section 15: Indemnification

You agree to indemnify and hold Digital River, our parent, and each of our officers, employees, agents, partners, content providers, service providers, suppliers, and licensors (collectively “Released Parties”) harmless from any and all claims, liabilities, costs, losses, and expenses, including reasonable attorneys’ fees, arising from (1) your purchase of products and services made available through this Site; and (2) your fraudulent or deceptive acts or omissions, or breach or violation of law, including infringement of any IP claim or breach of these Terms.

Section 16: Dispute Resolution

We hope that you are completely satisfied with the purchase of your product or service. We will make every reasonable effort to resolve any disputes you may have with us. However, if we are unable to resolve any dispute that arises in connection with your transaction, this Site, or these Terms to your satisfaction, this section governs the dispute resolution process.

For shoppers outside of the United States, special terms may apply to your right to Dispute Resolution. Please see the Local International Terms section below.

Arbitration Provision

Any claim, dispute, or controversy you may have against us arising out of, relating to, or connected with this Site or your transaction shall be resolved exclusively by binding arbitration by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable) and as amended by these Terms (“Arbitration Rules and Procedures”).

The AAA’s Rules, and a form for initiating arbitration proceedings, are available on the AAA’s website located at http://www.adr.orghttp://www.adr.org.

This section applies to all consumers to the fullest extent allowable by law. The disputes governed by this Section include without limitation (1) claims arising out of or relating to any aspect of the relationship between you and us; (2) claims arising from your use of the Site; and (3) claims currently subject to a purported class action litigation in which you are not a member of a certified class.

However, the dispute resolution procedure specifically does not apply to (1) a claim relating to the enforcement or validity of your or our intellectual property rights; or (2) a claim relating to an allegation of theft, piracy, or unauthorised use.

You agree that: (1) the arbitrator shall apply New York law consistent with the Federal Arbitration Act and applicable statutes of limitations, including principles of equity, and shall honour claims of privilege recognised by law; (2) the arbitrator shall not be bound by rulings in prior arbitrations involving us, but is bound by rulings in prior arbitrations involving both you and us to the extent required by applicable law; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.

You and we agree that (1) each of us can only bring claims against the other on an individual basis and there shall be no authority for any claims to be arbitrated on a class or representative basis; (2) arbitration can decide only your and/or our individual claims, and the arbitrator may award relief only in favour of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s); and (3) the arbitrator may not consolidate or join claims of other persons or parties who may be similarly situated and may not otherwise preside over any form of consolidated, representative, or class proceeding. If any section of this paragraph is determined to be illegal, invalid, or unenforceable then the entirety of this Arbitration Provision shall be null and void, and neither party shall be entitled to arbitrate their dispute.

Except as specified in the paragraph immediately above, if any part of this Arbitration Provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Arbitration Rules and Procedures established by the AAA, then the remaining provisions of the Arbitration Provision will not be affected and will be enforced to the fullest extent of the law.

Governing Law and Venue

In the event that the above Arbitration Provision does not apply to you or to a particular claim or dispute, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in Hennepin County, Minnesota, and both you and we agree to submit to the personal jurisdiction of the courts located within Hennepin County, Minnesota for the purpose of litigating all such claims or disputes applying the law of the state of New York, United States of America.

Section 17: Severability

If any provision (or part of a provision) of the Terms is determined to be invalid, illegal, or unenforceable, the validity of the remaining provisions will not be affected and will be enforced to the fullest extent permitted by the applicable law.

Section 18: No Waiver

Any delay or failure by us to exercise or enforce any right or provision of these Terms does not constitute a waiver on our part. A waiver of any breach or default in one instance does not constitute a waiver of any breach or default in a subsequent breach or default. No waiver by us will be effective unless it is in writing and signed by us.

Local International Terms

To our shoppers outside of the United States, the terms set forth below in this Local International Terms section are additional and supplemental to the Terms above. Where a provision within this section is inconsistent with the general terms outlined above, the terms specific to your jurisdiction will apply to your purchase

European Union, England, and Wales

Right to Withdrawal

If you are a consumer, in addition to any returns policy associated with your sale, you have a right to withdraw from (or cancel) this contract within 14 calendar days without giving a reason.

In the case of a service or digital content, your right to withdrawal expires 14 days from the conclusion of the contract.

In the case of goods, your right to withdrawal expires 14 days after the day on which you, or a third party indicated by you (other than a carrier) takes physical possession of the goods or:

  • In the case of multiple goods on one order and delivered separately, the day on which you, or a third party indicated by you, takes physical possession of the last good;
  • In the case of a good consisting of multiple lots or pieces, the day on which you, or a third party indicated by you, takes possession of the last lot or piece;
  • In the case of a contract for regular delivery of goods during a defined period, the day on which you, or a third party indicated by you, takes physical possession of the first good.

Consequences of Withdrawal

If you withdraw from this contract, we will refund all payments we received from you — including delivery costs (except for additional costs where you choose a shipping method faster than the least expensive delivery method) — no later than 14 days from the day on which we receive your notification of withdrawal. Unless you have expressly agreed otherwise, we will refund your payment using the same method of payment you used in the original transaction. In any event, you will not incur a handling or cancellation fee as a result of your refund.

You must return any good to us immediately, and in any event no more than 14 days from the date on which you inform us of your withdrawal from this contract. This deadline is met if you send us the goods before the expiration of this 14-day period. You bear the direct costs of returning the goods to us. You must take necessary precautions to preserve the goods and you must pay us for any loss in value in the goods that is directly attributable to your mistreatment or mishandling of the goods upon examination of their quality, characteristics, and functionality. We may refuse to issue a refund until we have received the goods back or until you have provided proof of their return.

Loss of Right to Withdrawal with Digital Goods

Where this contract involves the delivery of digital content not supplied in a physical medium, your right of withdrawal expires where (1) you expressly agree performance of the contract will begin prior to the expiration of the 14-day withdrawal period and (2) you acknowledge that you will lose your right to withdrawal if performance of the contract begins prior to the expiration of the 14-day withdrawal period.

No Right to Withdrawal

For any contract that involves delivery of sound recordings, video recordings, or computer software in a sealed package, you lose your right to withdrawal if the seal is removed or broken after delivery.

You have no right of withdrawal where the contract involves delivery of goods that are made to your specifications or are clearly personalised.

Exercising your Right to Withdrawal

If you wish to exercise your right to withdrawal, please notify us of your decision to withdraw by post or email.

Digital River Ireland, Ltd

Dromore House, East Park,

Shannon Co. Clare, Ireland

cancellation_eu@digitalriver.comcancellation_eu@digitalriver.com

You are not required to use a particular format to exercise this right; any unequivocal statement that you are exercising your right to withdrawal is enough.

You may also exercise you right by using the online form available at this link: Cancellation Form.

Regardless of how you contact us, you must send your notice of withdrawal before the cancellation period expires.

Guarantees

Under EU law and related member state law, subject to the exceptions outlined below, all products you purchase from the Site are protected by a 2-year guarantee that the products conform to the contract.

A product conforms to the contract if it:

  • Complies with the description we provided to you prior to the conclusion of the contract;
  • Is fit for the purpose for which you require it if you have made that purpose known to us prior to the conclusion of the contract;
  • Is fit for the usual purposes of goods of the same type; and
  • Shows the quality and purpose for which goods of the same type and which you, as a consumer, can reasonably expect given the nature of the product, taking into account any statements made by us or the manufacturer or its representative, particularly in advertising or labelling.

A product does not lack conformity if you were aware (should have been aware) of the lack of conformity at the time the contract was concluded. A product does not lack conformity if the lack of conformity is a result of materials supplied by you.

If a product does not conform to the contract, you have the right to (1) ask us to bring the goods into conformity free of charge by either repairing or replacing the product; (2) a price reduction; or (3) rescind the contract with regards to any non-conforming goods. You may not be entitled to repair or replacement if repair or replacement is impossible or the cost disproportionate to the cost of an alternative remedy.

If you are a consumer in the following countries, the following time periods apply to your purchase:

  • Finland – the duration of the guarantee is based on the expected lifespan.
  • Iceland – the duration of the guarantee is normally 2 years and 5 years for goods expected to have a longer lifespan.
  • Ireland – you must exercise your rights within the 6-year limitation period.
  • Netherlands – the duration of the guarantee period is based on the expected lifespan of the goods.
  • Norway – the duration is normally 2 years and 5 years for goods expected to have a longer lifespan.
  • Sweden – the duration of the guarantee is 3 years.
  • England, Wales, and Northern Ireland – you must exercise your rights within the 6-year limitation period.
  • Scotland – you must exercise your rights within the 5-year limitation period.

Dispute Resolution

Subject to any mandatory local law, these Terms shall be governed by English Law and we both agree to the non-exclusive jurisdiction of the English Courts of London over the Terms and any other matter related to them, and all proceedings shall be conducted in English.

Terms and Conditions

These Terms were last updated on April 20, 2021.

  1. General Terms and Conditions.
    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.
    2. The Digital River Goal.  Our goal at the Digital River family of companies (including Digital River, Inc., Digital River Ireland Limited, Digital River GmbH and/or DR globalTech, Inc.) 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.
    3. Our Solution; Appointment of Digital River as Reseller.  Digital River’s core product is a fully-integrated suite of back-end services – payments, tax, fraud and compliance – 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 an online reseller of your products. 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. When you use our Solution to sell your products, you appoint Digital River, and Digital River accepts the appointment, to resell and distribute your products to shoppers.
    4. Applicable Terms. Use of the Solution is governed by these Terms, the Standards listed below, and mutually approved Order Form(s) that identifies pricing and 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:
        • Service Level Agreement
        • Data Handling Standards
        • 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 may not be accessed without a non-disclosure agreement between us.
    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.
    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 resell your products, process payments for your products, calculate any taxes due, and for our software logic to help determine if a purchase is fraudulent), so you must provide to 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 of us by the card associations, processor/acquiring banks or legal or regulatory payment authorities in connection with our resale of your products through 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 of us.
    7. Fees.  You agree to pay our fees and reimbursable expenses for the Solution you order in accordance with applicable Order Form and as calculated under these Terms.
    8. 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.
    9. 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.
    10. 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.
    11. Change in Circumstances. If you are subject to a material change in circumstances (including without limitation a change in ownership, a material change in your financial condition, a material change in your products or services, or a change in the laws or regulations applicable to your business) that we believe, in good faith, is likely to cause you or us to be in violation of an applicable law, rule or regulation or which represents a significant economic or liability risk to us, we may immediately, on notice to you, (i) require you to establish and maintain a deposit account with us in an amount we in good faith specify, which may be funded by deductions from payments due to you from us, or by charging your account with us, or a deposit by you; (ii) institute a delay in our periodic payments to you; (iii) suspend or limit your use of the Solution; or (iv) terminate this Agreement.
    12. 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.
    13. Termination.
      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.
      2. In addition, you may terminate the Agreement or an affected Solution on thirty (30) days’ advance notice if we (i) modify the Agreement or a Solution in a manner that materially impairs the Solution, you provide us written notice of termination detailing the impairment within thirty (30) days after the modification becomes effective, and we do not rectify the impairment within the 30-day notice period, or (ii) consistently and repeatedly fail to make timely payments for sales transactions to you.
      3. In addition, we may suspend or terminate the Agreement or the Solution without penalty immediately upon written notice to you (i) if we determine in good faith that you are in breach of this Agreement as a result of activity that (a) is illegal, (b) is a violation of applicable rules, regulations or guidelines of a card association, processor/acquiring bank, or legal or regulatory payment authority with which we must comply when reselling your products, (c) violates our territorial restrictions for permitted commerce, or (d) violates our restrictions for the types of product we will resell; (ii) if we are directed to do so by a card association, processor/acquiring bank, or legal or regulatory payment authority; or (iii) in accordance with Section 1.11. 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.
      4. Upon termination (or after any applicable wind down period included in the Agreement), (a) you may no longer use the Solution (including any of our software, such as our APIs and/or administration interface) and we will stop providing them, (b) each party must promptly return or destroy the other party’s Confidential Information (and, if requested, provide an officer’s certification of destruction), (c) subject to all legal requirements, we will provide a facility for thirty (30) days for you to export the personal information of shoppers of your products (except their payment information, such as credit/debit card and account information) provided to us when we perform the Solution, after which we may delete shopper data, except to the extent we are required by law to maintain it, (d) we will work with you in good faith to promptly and expeditiously transfer to you the information necessary for recurring payments for products we have resold, provided that you are PCI compliant, the data is transferred in a PCI-compliant manner, and the transfer is compliant with all legal, regulatory, or other requirements applicable to us as the holder of the data, including any applicable notice requirements, which may vary by jurisdiction, and (e) the provisions of the Agreement that require or may require performance after termination will survive.
      5. 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.
    14. Representations and Warranties; Limitations on Liability; Indemnification.
      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.
      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.
      3. Limitations on Liability. IN ACCORDANCE WITH RISK ALLOCATIONS THAT ARE STANDARD WITHIN THE SELLER AND PAYMENT SERVICES INDUSTRY, THE PRICING FOR WHICH THE SOLUTION IS MADE AVAILABLE TO CLIENTS, AND THE REVENUE WE EARN UNDER THE AGREEMENT COMPARED TO THE REVENUE EARNED BY CLIENTS FOR TRANSACTIONS USING THE SOLUTION, RISKS BETWEEN US ARE ECONOMICALLY ALIGNED AS FOLLOWS: THE AMOUNT OF OUR LIALBILITY IS UNLIMITED FOR OUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 1.14.4, OUR PAYMENT OBLIGATIONS, OR TO THE EXTENT WE ARE GROSSLY NEGLIGENT OR COMMIT WILLFUL MISCONDUCT. OTHERWISE YOUR EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY CLAIM RELATED TO THE SUBJECT MATTER OF THE AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE TOTAL AMOUNT OF ALL RECURRING FEES WE RECEIVED UNDER THE AGREEMENT DURING THE TWELVE MONTHS PRIOR TO WHEN THE FIRST CLAIM AROSE. WE WILL NOT BE LIABLE FOR ANY (i) LOSS OR INTERRUPTION OF BUSINESS, (ii) ACCESS LIMITATIONS, DELAYS, INTERRUPTIONS OR DISTURBANCES TO THE SOLUTION, (iii) MISTAKES, DISTORTIONS OR DELAYS IN TRANSMISSIONS OF ELECTRONICALLY STORED INFORMATION, INCLUDING DISAPPEARANCES OF SUCH INFORMATION, (iv) ACTIONS OR INACTIONS BY YOU OR OF THIRD PARTIES (SUCH AS SHOPPERS OR YOUR SUPPLIERS), (v) AGREEMENTS YOU HAVE WITH YOUR SHOPPERS OR SUPPLIERS, OR FOR YOUR PRODUCTS, SERVICES, OR SYSTEMS, OR (vi) EVENTS BEYOND OUR REASONABLE CONTROL.ALSO IN ACCORDANCE WITH RISK ALLOCATIONS THAT ARE STANDARD WITHIN THE SELLER AND PAYMENT SERVICES INDUSTRY, EXCEPT FOR ANY GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR LIABILITIES WHICH AS A MATTER OF LAW CANNOT BE LIMITED, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUE, OR FAILURE TO REALIZE EXPECTED SAVINGS, ARISING UNDER THE AGREEMENT OR RELATING TO THE SOLUTION, EVEN IF THE PARTY WAS ADVISED OF OR COULD HAVE REASONABLY FORESEEN THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY IN THESE TERMS APPLY EVEN IF A REMEDY IS DEEMED TO HAVE FAILED ITS ESSENTIAL PURPOSE. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY’S ACCEPTANCE OF THIS SECTION HAS 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.
      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 1.15 (Our “Know Your Customer” and Anti-Money Laundering Regulatory Obligations) of these Terms, and (ii) any failure to comply with applicable laws, rules or regulations to the extent the failure is caused by or results from your instructions, actions or omissions.To be indemnified, the party seeking indemnity must give the indemnifying party prompt written notice of the claim, reasonable assistance, and sole authority to defend and settle the claim. In the defense or settlement of an infringement claim hereunder (or if we reasonably believe the Solution or any portion of the Solution does or may infringe the rights of a third party), we will have the option at our expense to (iii) modify the Solution to become non-infringing, or (iv) obtain for you the right to continue using the Solution, or if we determine in our discretion that (iii) or (iv) is not reasonably commercially available, then (v) terminate the Agreement with respect to the Solution and provide you a prorated refund of recurring fees previously received by us hereunder for the Solution corresponding to any period after the effective date of such termination.
    15. Insurance.  For so long as this Agreement is in effect plus two years after, we and you must each maintain insurance coverage with reputable insurance carriers of at least: $1,000,000 per occurrence and $2,000,000 in the aggregate for each of the following – products liability, commercial general liability, professional liability/errors and omissions with cyber risk and privacy coverage, and worker’s compensation with statutory limits. A party shall provide the other party with certificates of insurance upon request.
    16. 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. As part of our diligence, we may engage in any investigation of your finances, activities, and operations that we reasonably deem necessary to confirm your eligibility for and use of the Solution, and you agree to provide us with any information required to complete such investigation. You authorize us to share any information we collect or receive from or about you with the card associations, processor/acquiring banks or legal or regulatory payment authorities. 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. You agree to provide us with written notice not more than five (5) days after you receive a subpoena, civil investigative demand, or similar request for information from a federal, state, or local government, agency, or entity relating to your products and services sold through the Solution or your use of the Solution. Your failure to provide true, accurate and complete information to us may result in us denying your account registration or suspending or terminating the Agreement.
    17. Modifications.  From time to time in the course of our business we may modify the Agreement and/or the Solution (for example, to remain in compliance with changing laws, rules, regulations and market conditions around the world, or as required by the card associations or 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 1.13.2. Subject to your termination rights in Section 1.13.2, 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.
    18. Electronic Documents. We provide our documents electronically rather than in paper form. We will notify you that a document is available with a link to that document. At any time and without giving advance notice, we may elect not to send a document electronically, in which case a paper copy of the document will be sent to you at your corporate address on file.
    19. Miscellaneous.  These Terms, the applicable Standards, including the Guidelines and Best Practices, and the relevant mutually approved Order Form(s) constitute the entire agreement between the parties with respect to the subject matter hereof and in the applicable Order Form(s), 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 1.16. 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.
    20. Notices. Notices sent to either party must be given in writing and will be deemed effective on the date of delivery: to you, at the most recent postal or e-mail address you provided to us in your account registration, or to us, at our corporate office identified on our website, attention General Counsel, when delivered by commercial carrier and evidenced by the delivery receipt.
    21. Independent Contractors. The parties are independent contractors, and not partners or joint venturers. Neither party has the right, power, or authority to act or create any obligation on behalf of the other party. We may engage the services of subcontractors or agents to assist us in the performance of our obligations. Because a subcontractor (such as a payment provider) or agent may perform the same function for many or all clients, and we require flexibility to switch or alternate subcontractors and agents to ensure service level standards, pricing commitments or other obligations under this Agreement, we are unable to inform individual clients or seek approval from individual clients each time there is a change or reassignment of a subcontractor or agent; however we will be responsible for the acts and omissions of our subcontractors and agents in the performance of such obligations under the Agreement.
    22. Third Party Requirements. These Terms are designed for the Solution to coordinate with the requirements of our third-party providers and comply with applicable legal regulations around the world, so they are not modifiable on an individual client basis. You may be required to agree to additional appendices and/or agreements with us and/or our third party financial institutions, processors, or card associations that contain terms and obligations specific to certain solutions under our Global Seller Services. We do not warrant that a third-party financial institution, processor or payment services provider will enter into a relationship with you to provide any portion of the GSS. Any third-party financial institution, processor or payment services provider is an independent third party and we are not liable for any actions or inactions of third parties, included but not limited to, a third party’s unwillingness to work with you.
    23. Assignment. Neither party may assign the Agreement without the prior written consent of the other party except in connection with a merger or sale of all or substantially all of its assets or equity, but in such event the assigning party must provide prompt written notice to the non-assigning party of the change and the non-assigning party may terminate the Agreement if the assignment is to a direct competitor of the non-assigning party. The Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
    24. No Third-Party Beneficiaries. The Agreement is for the sole benefit of the parties hereto (including our corporate affiliates) and does not create any third-party beneficiaries, whether intended or incidental.
    25. Waiver. No waiver of any provision or breach of the Agreement will be effective unless made in writing, nor will it be construed to be a continuing waiver of such provision or breach.
    26. Choice of Law & Venue. If our U.S. entities are parties to the Agreement as defined in the Order Form, disputes related to the Agreement are governed by the laws of the State of New York, USA, without regard to any conflict of law provisions, and the parties expressly agree to submit to the personal and exclusive jurisdiction of the courts located in Hennepin County, Minnesota, USA for such disputes. If our European entities but not our U.S. entities are parties to the Agreement as defined in the Order Form, disputes related to the Agreement are governed by the laws of England and Wales, without regard to any conflict of law provisions, and the parties expressly agree to submit to the personal and exclusive jurisdiction of the courts located in London, England for such disputes. The parties specifically disclaim application (i) of the United Nations Convention on the International Sale of Goods, 1980, and (ii) of Article 2 of the Uniform Commercial Code as codified. The prevailing party in any action to interpret or enforce the Agreement will be entitled to its reasonable attorneys’ fees as well as all other remedies available to it.
    27. Injunctive Relief. A party may seek injunctive relief for any breach of the Agreement, without the necessity of posting a bond in connection therewith. The availability of injunctive relief will be a cumulative, and not an exclusive, remedy available to the parties.
    28. Enforceability. If any provision of the Agreement is found to be legally unenforceable, that provision will be enforced to the maximum extent possible and any such unenforceability will not prevent enforcement of any other provision of the Agreement.
    29. Time to Dispute. Any claim by us or you for breach of the Agreement must be brought within two (2) years of the date the party first learns of the breach or else the claim will be forever barred.
    30. Force Majeure. No party will be in breach of the Agreement if it is unable to perform its obligations (other than payment obligations) due to conditions beyond its reasonable control, but if the condition remains in effect for more than thirty (30) calendar days (or if the condition causes, or a party believes in good faith it is likely to cause, a violation of applicable law, rule or regulation or a significant economic or liability risk), either party may terminate the Agreement without cause upon written notice to the other party.
  2. Commerce Services Terms and Conditions
    1. Developer Portal. Implementation details regarding our Commerce Services can be found in our Documentation Portal.
    2. Your Shopping Experience. Your online shopping experience must comply with our Guidelines and Best Practices.
    3. Your Product(s). You are solely responsible for the product(s) you offer for sale to us. Upon our request you will provide to us written certification of your compliance with your obligations signed by an officer and such other information related to such compliance as we may reasonably request from time to time.
    4. Resale Transactions.An offer to purchase a product submitted by a shopper through your ecommerce website represents an offer to purchase the product from Digital River. If Digital River accepts the offer from the shopper, Digital River will contract directly with the shopper for the products and will identify itself, and be identified by you, as a reseller of the products (the “merchant” for purposes of the sales transaction). Digital River will purchase the product that the shopper has offered to purchase from you, and you will immediately sell and transfer title to that product to Digital River for our resale of the product to the shopper. As the authorized reseller and merchant, Digital River is entitled to retain the full amount of the purchase price, including any related taxes and fees, for the products sold to shoppers by Digital River, net of any amounts owed by Digital River to you for Digital River’s initial purchase of that Product for resale or as otherwise set forth in this Agreement.
    5. Subscription Management. If the products you offer for resale by us include subscriptions that a shopper renews on a recurring basis, such as every week, month, or year, our Commerce Services facilitate management of subscription products based on defined business rules as further discussed in the Documentation Portal. You must configure the business rules associated with the mechanics of managing and selling a subscription product.
    6. Product Information Management (PIM). Our PIM permits you to control your products, catalogs, merchandising, content and pricing with role-based permissions. Our PIM also offers bulk import/export capabilities to create new products and categories, fetch products and categories, as well as make changes to existing items in your catalog, including products, categories and pricing.
    7. Pricing. Our PIM offers tools to manage pricing. You can publish and modify price lists. Through a variety of price list types, you can customize your site based on your promotions and product types. You must interface with our PIM to enable and configure pricing as further discussed in the Developer Portal.
    8. Promotions. Our PIM supports dynamic content, rules-driven selling and pricing flexibility including cross-sell and upsell, product association logic and multiple presentation treatments. Offer types enable category-based inclusions/exclusions, quantity and purchase amount thresholds, and discount quantity.
    9. Shopper Management. The Solution supports retrieval and management of shopper information. This process also allows cancelling and/or activating a subscription purchased by a shopper.
  3. Global Seller Services Terms (GSS) and Conditions
    1. Transaction Information. GSS will receive from your connected online shopping experience the transaction information from you as defined in the Order Form. 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. 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. You must provide our terms of sale to the shopper, which will govern our resale of the product to the shopper.
    3. 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.
    4. Fraud Screening. We will use fraud screening tools to screen for, detect, prevent, and take such other actions as we deem reasonably necessary to detect and/or prevent fraudulent activity in connection with sales from a shopping or order capture experience connected to GSS. The existence of fraud, or the possibility of the existence of fraud, will be determined by us, based in part on fraud data points you are required to provide to us in accordance with the Agreement plus your input where we request it to assist our anti-fraud efforts.
    5. Other Risk Mitigation. We may take other measures in our reasonable discretion to avert, minimize or mitigate any potential loss, corruption, theft of data or other security risk, including, but not limited to, the limitation or temporary suspension of the provision of GSS, without any liability to you.
    6. Taxes.
      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. Tax Identification Management. For certain jurisdictions where it is relevant, we will provide services to collect tax identifiers from shoppers to determine the tax treatment for the order.
      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.
      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.
      5. Statutory Invoicing. We will use commercially reasonable efforts to enable providing shoppers with the proper country specific tax invoice required for the order.
      6. Taxes on Sales by You to Us. You are solely responsible for the collection and remittance of any applicable GST, value-added tax, or other consumption-based taxes on sales of product(s) by you to us (e.g., for sales of product(s) by you to us outside of United States jurisdictions) and, unless otherwise agreed, you will provide us with a valid tax invoice for any taxes payable by us to you. You will hold us harmless from and against your failure to promptly and properly collect taxes from us on the sale of a product from you to us (including without limitation interest and penalties resulting therefrom).
      7. No Declared Value Sales. For any product(s) you provide to us at no charge for our distribution with no sales price to the shopper through transactions processed through GSS, you will be responsible for, and will hold us harmless from and against, any regulatory, sales or use taxes associated with such product(s).
      8. Income Tax. In no event are we responsible for any tax based on your net income or similar basis (including without limitation amounts for non-resident withholding taxes retained from amounts due to you and remitted to a taxing authority by us if we are required to do so), or the preparation of any tax return related thereto.
    7. 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).
    8. PCI Compliance. We hold and will continue to hold through the term of your use of GSS, a PCI Data Security Standard (PCI-DSS) certification appropriate for the card volume we process annually. In addition, we will tokenize all card transactions in a PCI compliant manner. At your request, we will provide a copy of our then-current annual Attestation of Compliance. See www.digitalriver.com/compliance/.Unless you use our 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.
    9. Payment Instrument Validation. We use a payment service to determine if the payment instrument can be validated or authorized and if the order’s payment type cannot be settled until further action is taken by the shopper, we will hold the order pending that action.
    10. Billing Optimization. We will leverage our proprietary billing optimization tools and our network of global and local payment partners to reduce the number of transactions declined by payment processors.
    11. Process Authorizations, Refunds and Chargebacks. We will process authorization(s), capture, refund and chargeback transactions for both single purchase transactions and recurring billing transactions through one of our payment processing relationships.
      1. Refunds. We may use a payment service to initiate a refund if you have generated a refund through GSS.
      2. Unreferenced Refunds Prohibited. GSS does not support unreferenced refunds. It will only support a refund associated with a sale transaction processed by GSS.
      3. Not a Bank. We are not a bank and we do not provide loans or extend credit. To the extent pre-authorized by us and offered in your online shopping or order capture experience, we may accept payment for product(s) or services not immediately deliverable to the shopper, and may, in our sole discretion, initiate reversals or hold reserves for all or a portion of the charges processed by us.
      4. Payment Method Availability. We may, upon notice to you, disable and/or remove a payment method that (i) experiences excessive levels of fraud or chargeback rates, (ii) is no longer supported by our payment processing relationships, or (iii) we no longer accept as an authorized payment method across our client base.
    12. Order Orchestration.
      1. Fulfillment Responsibility. We are responsible for fulfillment of products we resell to shoppers. We may appoint you or a third-party distributor to act as our fulfillment agent.
      2. Fulfillment Information Required. You may select in the Order Form to use our optional Fulfillment Service or alternative services for fulfillment of products we resell. 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 our optional Fulfillment Service, the optional Fulfillment Terms will apply.
      3. Fulfillment Status. You are solely responsible for sending a fulfillment request or notice in a timely manner in accordance with our Guidelines and Best Practices.
      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.
    13. Shopper Support Services.
      1. Sole Responsibility. As the reseller we are subject to strict oversight on controlling who has access to shopper data (including payment card details) so you agree that you will not subcontract your shopper service for the sale and fulfillment of product(s) offered on GSS to a third party without our express prior written approval to do so, such approval not to be unreasonably withheld, delayed or conditioned.
      2. Online Order Support. We will provide you with access to our 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 an Order 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.
      3. Additional Order Support. If you would like us to aid you with resolution of an escalated shopper service inquiry in connection with the sale or fulfillment of a product, we will provided escalated shopper service support at rates set forth in an Order Form.
    14. Warranty and Recalls. You are solely responsible for all warranty and recall obligations relating to product(s) in accordance with your warranty policy, but in no event inconsistent with the laws and regulations of the jurisdictions in which the product(s) are sold. You will notify us of any public or private recall or claim of infringement, or of any other liability or claims involving or relating to a product we offer for resale through GSS. We will provide reasonable assistance in such cases, so long as you will pay all our related expenses.
    15. Financial Dashboard. We 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 us 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).
    16. Payments to You. Once we have 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 your product, and payments to you through GSS for such settled transactions will be aggregated into a payment to you in accordance with the applicable Order Form.
      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 our charges due to us under the Agreement in accordance with the applicable Order Form. If the collected amounts are not enough to cover the offsets, we will invoice you for the difference in accordance with the payment terms in the applicable Order 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 shipping charges and tax or regulatory charges we are 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.
      2. Treatment of Refunds & Cancellations. We are entitled to retain the Transaction Costs to the extent not capable of being recaptured by us and charges earned on product(s) sold by us, even if the transactions cannot be successfully settled, or if such product(s) or associated transactions become subject to refund or cancellation. We are 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 our value proposition.
      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. We will have complete discretion regarding the settlement of any kind of reversed payments and/or disputes with partner banks, including but not limited to, the settlement of disputes regarding reversed payments. You agree to take reasonable steps to assist us 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 your online shopping or order capture experience.
      4. Payment Reversals. We may charge you for each payment transaction reversal as set forth in an Order Form. We 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 us, if we remain 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 us, the merchant bank or payment processor, will not be treated as a completed sale to a shopper by us for the purposes of calculating payments due to you.
  4. Additional Services – Physical Product(s).
    The following sections apply if the product(s) we resell include physical product(s) The type of product(s) (digital, physical, or services) we offer for sale to shoppers under the Agreement will be specified in an Order Form.

    1. Shipping Methods and Rates. GSS receives available shipping method(s) and relevant respective shipping rates from the fulfillment service (which may be our Fulfillment Service).
    2. Delayed Payment Type Management. Orders using payment types that cannot be settled until further action is taken by the shopper will be held by us pending that action.
    3. Order Cancellation. Upon your instruction to GSS, we will communicate to the fulfillment service (which may be our Fulfillment Service) to withhold fulfillment of a physical product order if you cancel the order prior to it being sent for fulfillment (and upon confirmation, GSS will instruct the payment service to release any holds on the associated payment instrument(s)).
    4. Warehousing and Delivery. The party responsible for warehousing and delivery to the shopper of products we offer for sale under the Agreement will be specified in an Order Form. In the event of a conflict between the Agreement and any Incoterms, the Agreement will control.
    5. Export. For cross-border sales from us to online shoppers, we, or our forwarding agent (which may include you if you are the 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.
    6. Physical Products Delivered by You as Our Fulfillment Agent.
      1. Inventory Controlled by You for Resale by Us. We will only accept for resale (i) inventory you own (which you will continue to own while in your warehouse) that is customs cleared (duty/tax paid) in free circulation available for resale, and (ii) inventory of the latest version of each product, appropriately labeled for use in the approved countries set forth in an Order Form, including all certifications, approvals and authorizations needed for use in those countries.
      2. Inventory Fulfilled by You. Where you are responsible for warehousing and delivering products to shoppers for us, you will do so as our fulfillment agent, and you accept the limited appointment as our 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 may use a third-party fulfillment agent approved by us (not to be unreasonably withheld or delayed) to perform your fulfillment obligation. Any third-party fulfillment agent must be defined in an Order Form, and any changes to the third-party fulfillment agent must be approved by us and defined in a new Order Form. You are responsible for the acts and omissions (and will be responsible for the acts and omissions of your third-party fulfillment agent) related to your obligations to fulfill orders for products purchased from us. You will provide us with timely proof of shipment for a given shipment upon our request. For all shipments of physical products to your warehouse, you will be importer of record (where applicable), will be responsible for all expenses associated with shipment, and will bear the risk of loss.
      3. Shipping Costs; Discounts. You will use your own or your agent’s shipping account for the shipment of physical products and are responsible for all risk of loss for your products while in your, or your agent’s, possession or control, and during shipment to the shopper. You will provide us with your warehousing and shipping rate schedule for the performance of your warehousing and delivery obligations as our fulfillment agent, which may be changed by you upon thirty (30) calendar days written notice to us. We will pay you the fees charged by us to the shopper for shipping and handling for each product fulfilled by you on our 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.
      4. Delivery Delays Caused by You. We will have no liability for any delays to shoppers created by the delivery of products by you, or the delivery of any non-conforming product to the description you provided to us.
      5. Exporter of Record (for Cross-Border Shipments). We will be the exporter of record with you or your third-party fulfillment agent acting as our agent for export control purposes. If required by law, we will execute a “designation of forwarding agent” in the form provided by us in connection with your role as our fulfillment agent for export control purposes.
      6. Importer of Record. The shopper will be the importer of record for any cross-border transactions. However, if we are deemed by law to be the importer of record for shipments of your products into a jurisdiction, you agree to reimburse us for all unrecoverable duties, taxes and clearance fees.
      7. Additional Shipping Requirement. You agree that for products sold and fulfilled as our agent using the Solution, you will prohibit any change to the delivery address unless initiated by us.
    7. Warehousing and Delivery by Distributors.
      1. 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.
      2. Your Distributor’s Obligations. If you have a contractual relationship with a distributor to sell your products to us for our resale, the 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. If you offer a shipping discount to the shopper, we will have the right to offset the amount of the discount taken by the shopper from amounts due to you under the Agreement.
      3. Payment. Payments to you under the Agreement for our sale of a product we purchased from a distributor are computed by taking the net of the sales price of the product for those products for which we received payment less the sum of (a) the purchase price of the product by us from a distributor, inclusive of all applicable taxes and fees, (b) our charges as set forth in the Order Form attributable to the transaction, (c) amounts refunded to purchasers for products subject to return or cancellation (net of any credits we received from distributors for returned products), and (d) any amounts subject to chargeback.
    8. Returns of Physical Product(s).
      1. Returns. GSS will process information related to returns of physical product(s).
      2. Valid Return Reasons. GSS is able to capture select return reasons to allow you to compile data on returns of physical goods.
      3. Returns History. GSS captures authentications/approvals, reporting and recordation of returns of physical product(s).
  5. Optional Services – Fulfillment Services.
    1. Inventory Visibility. With appropriate configuration, our Fulfillment Service provides SKU level inventory availability data for physical goods from all inventory locations across your enterprise.
    2. Backorders. If permitted and applicable, you must configure rules for handling backorders in our Fulfillment Service.
    3. Fulfillment Routing. Our Fulfillment Service’s sourcing rules allow you to configure which inventory location will fulfill a given order.
    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.
    5. Shipment Notification. Our Fulfillment Service will receive notifications that all or part of an order has been shipped. You must provide the GSS with updates to the status of all or part of an order that has been shipped.
    6. Tracking Information. Once an order leaves the warehouse, shipment-level tracking information is available through our Fulfillment Service for use by you (major carriers only).
    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 our Guidelines and Best Practices.
    8. Shipping / Order History. Your shopper’s historical order data will be stored in GSS, and made available only to you and us, in a manner consistent with all required regulations and rules.
  6. Digital River Managed Warehouse Service – Legacy Service
    The following sections apply if you are using our legacy Managed Warehouse Service for physical products as indicated in an Order Form.

    1. Physical Products You Provide to Us. You will provide us with, and we will only accept (i) inventory you own (which you will continue to own while in our or our agent’s warehouse) that is customs cleared (duty/tax paid) in free circulation available for resale, (ii) inventory of the latest version of each product prepackaged and ready for shipment, appropriately labeled for use in the approved countries as set forth in an Order Form including all certifications, approvals and authorizations needed for use in those countries, and (iii) additional inventory we need from time to time to maintain adequate inventory to fill anticipated order volumes based on projected purchase patterns. For physical products you ship to us, you will be importer of record and will be responsible for all expenses associated with, and will bear the risk of loss for, the shipments.
      1. Loss of Product. We will use reasonable efforts to preserve at least ninety-nine and one-half percent (99.5%) of the products that you place in our custody or control in our or our agent’s warehouse, each calendar quarter. At the end of each calendar quarter, in the event of any loss of more than one-half percent (0.5%) of the warehoused inventory, we will pay you the replacement value of the physical materials constituting the lost products upon reasonable proof of the products’ replacement value (which must include, at a minimum, documentation of invoices for materials costs). If product is lost during shipment from our or our agent’s warehouse to the shopper, our liability is limited to the standards imposed by the common carrier.
      2. Shipping and Warehousing Costs; Discounts. We will use our or our agent’s warehousing for products before shipments to shoppers and shipping account for shipments to shoppers. We will provide you with our shipping and warehousing costs for each product we fulfill. The shipping and warehousing costs will be paid by the shopper, and if you offer a shipping discount to the shopper, then you will pay us an amount equal to the discount taken by the shopper so we receive our full shipping, handling and warehousing costs. If you have warehouse special project requests and we perform the request for you, you will pay us our warehouse account management fees, storage costs and costs relating to the warehouse special project request. We may offset any payments to you or invoice you for these warehouse costs.
      3. Delivery Delays Caused by You. We will have no liability for any delays to shoppers created by the delivery of products by you to us, or the delivery of any non-conforming product to the description you provided to us.
      4. Exporter of Record (for Cross-Border Shipments). You will be responsible for the accurate information for your products in our or our agent’s warehouse, such as but not limited to, export classifications, proper packaging, labeling, certifications, approvals and authorizations that will be used by us as exporter of record or our agent on our behalf to complete export documentation for customs filings/requirements. Our third party fulfillment agent will act as our agent for export control purposes and will be responsible for proper and accurate completion of all documents and customs filings/requirements on our behalf based on information you supplied for your products.
      5. Importer of Record. The shopper will be the importer of record for any cross-border transactions. However, if we are deemed by law to be the importer of record for shipments of your products into a jurisdiction, you agree to reimburse us for all unrecoverable duties, taxes and clearance fees.
      6. Excess Product. We will provide you notice if we are maintaining excess inventory of your products. You will have thirty (30) days from receipt of notice to collect any excess product at your cost. If you fail to collect the excess product within the 30-day period, at our option we may either (a) dispose of your products in any manner we choose and charge you reasonable fees to do so, and/or (b) charge you storage and/or handling costs or fees to hold the products for you.
      7. Inventory Transfers. You are responsible for all shipping arrangements and documents, including export documents, for all movements (in and out) of your inventory at our warehouse. We will arrange inventory transfers with our or our agent’s warehouse per your request. We will pass to you any required shipment information, including pick up confirmation number(s), for you to arrange pick up and shipment. We will pass shipment/export documents created by you or your agent to our or our agent’s warehouse to be included with the inventory for pick up/shipment. You will be responsible for, and we will charge you for, any fees or costs associated with inventory transfers.
      8. Local Warehouse Requirements. You are responsible for ensuring you have the requisite commercial requirements (such as licenses) to successfully complete a sale to us where our or our agent’s warehouse is located.

Solution Service Level Standards

Effective as of July 15, 2020

These Standards apply to the Solutions and are in addition to the terms in the Agreement. Capitalized terms used in these Standards have the same meaning as they do in the Agreement. These Standards are dependent upon your compliance with the best practices for your integration and platform usage, as defined in the Guidelines and Best Practices for the Solution you select, and upon your compliance with your responsibilities as defined in these Standards.

Service Levels

  1. Uptime. The Solution under the Agreement is available at least 99.9% of the time measured over each calendar Quarter (January 1, April 1, July 1, October 1). Availability is calculated separately by platform in accordance with the following formula: Availability formula
    Availability = total minutes per quarter - total minutes unavailable per quarter
    (Total minutes per Quarter)
  2. Limitation: This availability commitment only applies if your usage is less than:
    1. 1,000,000 milliseconds of compute time per five (5)-minute interval; and
    2. 6,000,000,000 milliseconds of compute time per month.
  3. Unavailability. A “service interruption” is any time exceeding five (5) consecutive minutes where our Order Takers (a) do not respond to any valid shopper request, or (b) provide only HTTP response codes 500, 502, 503, or 504 responses to all valid shopper requests, or (c) some combination of (a) and (b).“Order Taker” is defined as those systems within our checkout flow which respond to web requests.A period of “unavailability” (i) commences as of the earlier of the time we detect an incidence of a service interruption or the time that you notify us of the service interruption, and (ii) ends when our Order Takers commence providing routine responses to your shopper requests again. Unavailability shall be monitored by us.Unavailability shall not include any interruption arising from:
    1. scheduled maintenance and/or upgrades, including any redundant environments,
    2. your failure to follow the Guidelines and Best Practices,
    3. our suspension or termination of your right to use the Solution in accordance with the Agreement, or
    4. any event beyond our control, which includes without limitation any external interruption of power or telecommunications; denial of service, virus/worm or other attack; the failure or substantial failure of the Internet; the internet service provider or internal telecommunications equipment experienced by you or any of your customers; the browser configurations, hardware and/or software of you or any shopper; and/or any other force majeure event (including without limitation acts of God, terrorism, natural disaster, war, riots, and labor strife).

    We use all reasonable efforts to avoid having to take any redundant environments offline for executing schedule maintenance. Should under exceptional circumstances such maintenance nevertheless prove necessary, we will provide as much notice as practically possible and plan such maintenance in a manner and on a date and time to minimize the potential number of affected potential transactions.

  4. Shared Responsibility to Mitigate Risk. Security and compliance are a shared responsibility between us and you.We are responsible for taking reasonable precautions to mitigate the risk of unavailability, including but not limited to (a) use of anti-virus and anti-trojan software; (b) installation of available hardware and software patches; (c) implementation of industry standard security measures, such as firewall-based network segmentation, intrusion detection, and anti-dedicated denial of service (“anti-DDOS”) measures; (d) implementation of business continuity and disaster recovery measures, such as application redundancy and scheduled backups; and (e) maintaining redundant infrastructure providers.You are responsible for taking reasonable precautions to mitigate the risk of unavailability of the Solution to you, including but not limited to: (i) implementing proper input filtering, (ii) applying intrusion detection and web application firewall (WAF) practices, (iii) applying anti-DDOS measures, (iv) jointly investigating and resolving security and compliance issues as they impact both you and us from time to time, and (v) properly interpreting HTTP response code 429 from the Solution and waiting the directed amount of time before retrying the intended request.
  5. Business Continuity and Disaster Recovery. We maintain a business continuity and disaster recovery plan designed to minimize the impact to our operations of a man-made or natural disaster or other similar events which could impact our business operations and/or technology infrastructure. We annually test our ability to comply with our business continuity and disaster recovery plan and will make our results available upon request.
  6. Issue Resolution. We target resolution of issues, based on their severity. In the event an issue could be classified within more than one Severity Level, we shall initially classify the issue; in addition, we may, upon notice to you, reclassify the priority level of an issue as fixes are rendered and/or developed or the severity of the issue decreases. In the event you disagree with our classification or reclassification, as appropriate, you may contact us to discuss when a further reclassification of the issue is appropriate.
    Severity Level Description
    Level 1
    • Impact: Critical
    • Our Classification: Solution is down
    • Acknowledgment: As soon as possible (dependent on circumstances)
    • Issue Resolution: As soon as possible (dependent on circumstances)
    Level 2
    • Impact: High
    • Our Classification: Disruptive problem to the Solution impacting performance or availability
    • Acknowledgment: Within twenty-four (24) hours
    • Issue Resolution: As soon as possible (dependent on circumstances)
    Level 3
    • Impact: Medium
    • Our Classification: Some impact to the Solution; however, not vital to immediate performance or availability
    • Acknowledgment: Within two (2) business days
    • Issue Resolution: Within 5-10 business days of Acknowledgment, unless notified otherwise
    Level 4
    • Impact: Low
    • Our Classification: Minimal impact to the Solution
    • Acknowledgment: Within two (2) business days
    • Issue Resolution: We will evaluate and incorporate into maintenance release as we deem appropriate

    For the purposes of this table, the “Acknowledgment” is the time from when we first learn of a problem to when we initially contact to you by email or telephone acknowledging such reported issue; and “Issue Resolution” is when we substantially resolve the issue or begin a plan to resolve the issue, whichever occurs first.

  7. Remedies. If we fail to meet our availability commitment in any calendar quarter during which we were compensated for your use of the Solution, your sole and exclusive remedy is a service level credit as follows, subject to your rights in case of a continuous failure as described in section 8 below. The service level credit is calculated by applying the service credit percentage to the charges we earned and received less the cost of payment processing for transactions we processed during that calendar quarter for your use of the Solution. We will apply any service credits only against future Solution charges otherwise due from you. Service credits will not entitle you to any refund or other payment from us. Subject to section 8 below, the foregoing is your sole and exclusive remedy for our breach.
    Quarterly Uptime Percentage Service Credit Percentage
    Less than 99.9% but greater than or equal to 99.0% 10%
    Less than 99.0% but greater than or equal to 95.0% 25%
    Less than 95.0% 50%

     

    1. Remedy Procedure. To receive a service credit, you must submit a claim by opening a case with our Customer Success Team. To be eligible, we must receive your credit request within 30 days’ after the end of the calendar quarter in which the service level commitment was not met and must include:
      1. the words “SLA Credit Request – Solution” in the subject line;
      2. the dates and times of each period of unavailability that you are claiming;
      3. the calendar quarter with respect to which you are claiming service credits;
      4. Your request logs that document the errors and corroborate your claimed outage (any confidential or sensitive information in the logs should be removed or replaced with asterisks).

      If we confirm the Quarterly Uptime Percentage is less than our service commitment, then we will issue you a service credit within one billing cycle following the quarter in which we confirm your request. If you don’t provide your request and other information needed above, you will be disqualified from receiving a service credit.

  8. Alternative Remedy in Case of Continuous Failure. Should we fail to meet our availability commitment in any two (2) consecutive calendar quarters during which we were compensated for your use of the Solution, you shall, as an alternative remedy, be entitled to terminate the Agreement upon thirty (30) days’ prior written notice to us. For the avoidance of doubts, in case you decide to terminate the Agreement based on this provision you shall not be entitled to receive additional service credits for the calendar quarter giving rise to such termination right.In the event you fail to provide us with notice of such termination within forty-five (45) calendar days of the end of the calendar quarter giving rise to such termination right, you shall be deemed to have waived its right to terminate the Agreement for such failure (but shall have the right to so terminate if the condition is met in any subsequent two (2) calendar quarters).

Data Handling Standards

Data Handling Standards

Effective as of August 12, 2022

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Terms of Sale

Digital River’s Terms of Sale

Last Updated: September 13, 2021

Digital River, Inc. and its subsidiaries (collectively “Digital River”, “we”, and “us”) is a world-class online global reseller services provider. We provide essential compliance, fraud, tax and payment services to the supplier or manufacturer (“Supplier”) whose name appears on the website or commerce solution where these terms of sale (“Terms”) appear (“Site”). When we make products and service rights (“services”) available for sale through the Site, we do so as an authorised reseller on behalf of our Supplier.

IMPORTANT: Please read these Terms carefully before purchasing from the Site. They contain important limitations and exclusions that apply to your purchase from this Site, including limitations of liability and a mandatory arbitration clause. By placing an order on this Site, you agree to be bound by these Terms, and any sale through this Site is conditional upon your acceptance of them. If you do not agree to any of these Terms, you must discontinue use of this Site and you must not complete your order.

You are bound by the version of the Terms in effect on the date you complete your Order. However, we may change these Terms from time to time, and when we do, we will post them on the Site. It is your responsibility to review the Terms each time you make a purchase from us.

Identity of Operator

Digital River, Inc.

10380 Bren Road West

Minnetonka, MN 55343

Email address: onlinestore.en.cs@digitalriver.com

Section 1: Entire Agreement

These Terms contain the entire agreement between you and Digital River regarding your purchase of products or services from this Site, and they supersede any prior representations, agreements, or conditions implied by trade, course of dealing, or custom. No amendment to these Terms is enforceable against us unless submitted in writing and signed by us.

Section 2: Your Privacy

Our Privacy Policy, which is incorporated into these Terms by reference, governs your submission and our use of personal information through this Site. By submitting your personal information to us in connection with your order, you consent to us processing (either directly or through third party service providers) your information to fulfil your order in accordance with our Privacy Policy.

To view the applicable Privacy Policy, please click here.

Section 3: Your Obligations and Representations

This Site is not targeted or aimed at children or to other individuals who do not have the legal capacity to contract. By placing an order, you declare that you have the legal capacity to contract in the state or country of your residence. If you are placing an order on behalf of a third party, you declare that you have the authority to act on that party’s behalf and your acceptance of these Terms constitutes that third party’s acceptance.

You declare that you will comply with all applicable laws and regulations, including export and import regulations. You agree that you are not purchasing the products or services for export, re-sale, transfer, or use in violation of any applicable laws, including without limitation U.S. Export Administration Regulations or applicable U.S. sanctions and embargoes administered by the U.S. Treasury Department. You further agree that you will not use them for any illegal or unauthorised use.

You declare that the information you provide in connection with your purchase, including your physical address, email address, and payment information, is complete and accurate. You declare that you are authorised to charge and initiate a payment via the payment method you designate for your purchase.

Section 4: Placing an Order

When we offer products and services for sale on this Site, we are inviting you to make an offer to buy the products and services shown. When you place an order by clicking or activating the appropriate button or hyperlink on the Site, you are making us a legally binding offer to buy the products and services you have selected on these Terms.

We accept your offer only when we have received approval by your chosen payment method and when we have shipped your product or otherwise made it available to you, such as providing you with a download link.

At our discretion, we reserve the right to decline your offer and cancel your order. Any system-generated order confirmation we send when you complete your order is an acknowledgement of your offer only and is not an acceptance of your offer, which is subject to correction before shipment of your physical products or delivery of your services.

By placing an order, you are consenting to our use of electronic communications related to your transaction and the electronic delivery of notices, policies, and records of the transaction.

You agree that we may keep pertinent contract records, including communications and acknowledgements, as permitted by law.

Section 5: Product Description and Pricing

We make every attempt to ensure that the products and services offered for sale on the Site are described and represented as accurately and as completely as possible. However, mistakes may occur and if there are errors, we reserve the right to correct and revise.

Prices are subject to change. The prices payable are those prices valid at the time of our acceptance of your offer and are in the currency indicated on the Site. Unless otherwise indicated on the Site, prices for products and services do not include VAT, other taxes, delivery, export, or other charges.

Section 6: Payment Terms

You agree to pay for the product through the payment methods offered on this Site. Those payment methods may be subject to their own terms and conditions. We may use third party service providers to process and authorise your payment. By placing an order, you are authorising us and our third party service provider(s) to charge you for your purchase using your selected payment method. You further agree that we may charge the total amount of the purchase—including any applicable taxes, delivery, and customs charges—to your designated payment method. If we have delivered your product or service to you and your payment method fails for any reason, you agree to pay us the full amount due upon demand.

Section 7: Export

The products and services sold on this Site are subject to the import, export, and re-export laws and regulations of the United States and other countries. By completing a sale on the Site, you agree to comply with these import and export laws and regulations, including laws and regulations that place restrictions on the destinations, user, and end use of the products and services. You agree that you will not purchase or use any products or services offered for sale on this Site if any applicable laws in your country prohibit you from doing so. Accessing or using any products or services sold on this site in a location where their use is illegal is strictly prohibited.

No party that is designated on the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons (“SDN List”), available at https://www.treasury.gov/resource-center/sanctions/sdn-list/pages/default.aspx,https://www.treasury.gov/resource-center/sanctions/sdn-list/pages/default.aspx has or shall have any property interest whatsoever in the products purchased on this site.

By completing a sale on the Site, you declare that you are not on, and are not 50% or more owned by one or more persons or companies identified on the SDN List. You further declare that you are not acting on behalf of and will not divert any products purchased on this Site to (1) any restricted party identified by the U.S. Government; (2) any party blocked by operation of law; or (3) any prohibited end use or destination as set forth in the U.S. Export Administration Regulations.

Section 8: Customs and Import Costs

Your purchase of a physical product may be subject to customs tariffs, duties, fees, taxes, and/or other charges that may be payable in the destination country (“Import Costs”). Unless expressly stated by us during the ordering process, your payment for your order does not include these Import Costs. You agree that you, as the receiving party in the product’s destination country, are responsible for getting the products or services into the country in which you intend to use them, properly declaring the merchandise to the appropriate customs authorities, paying applicable Import Costs, and satisfying any additional import-related requirements.

When completing a sale, you may be given an option to prepay the Import Costs. We will use commercially reasonable efforts to estimate these Import Costs. However, because we do not control them, we cannot predict with 100% accuracy what the final Import Costs will be. You acknowledge that the actual import costs may vary from our estimate.

If you choose to prepay the Import Costs: Where the final Import Costs are greater than our estimate, we will not ask you to pay additional money, and where the final Import Costs are less than our estimate, we will not refund the difference.

If you choose not to prepay the Import Costs: You bear the responsibility of paying all actual Import Costs. If a party other than you pays some or all of the actual Import Costs on your behalf in order to effect clearance, you will reimburse, upon request, that party in full for the actual Import Costs. Your failure to pay Import Costs in a timely manner may cause delivery delays and may make you liable for tariffs and additional fees

You should contact the applicable customs office for information about what Import Costs, requirements, and procedures may be applicable to your purchase.

Section 9: Additional Terms

Your use of the products and services we offer may be subject to the additional terms of our Suppliers which will be presented to you at the time of your purchase or which may be delivered to you with your product or service. Prior to completing your purchase, carefully read any additional terms and conditions provided to you. Do not complete the sale if you do not agree to the terms. Where additional terms are delivered with your product or service, you must review them immediately. If you do not agree to those terms, you must not use the product or service, and must contact customer service to begin a return.

Where the product or service we offer for sale is software, we offer you a licence to use the software. Except where permitted by law or by the licence terms presented, the software may not be copied, adapted, translated, made available, distributed, varied, modified, disassembled, decompiled, reverse engineered, or combined with any other software.

With respect to your purchase of a right to use a service, such as with a warranty, software-as-a-service, or a digital admission for an offering operated and provided by our Supplier or a third party, we sell you an intangible right to access, use, or participate in that third party service for a specified period of time.  We are not the operator of a service and make no representations or guarantees as to the availability of that service.

Section 10: Shipping and Delivery

If we accept your offer, we will use commercially reasonable efforts to ship and deliver physical products to the destination you specified in the ordering process and indicated on the order acknowledgment we send you. You must check the delivery address you provided during the ordering process (“Delivery Address”). If there are any errors or omissions, you must contact us to correct the Delivery Address as soon as possible. We cannot change the shipping address after your order has been processed and fulfilled. We reserve the right to cancel your order and/or charge you for any extra costs that arise as a result of any change in the delivery address on your part.

Any delivery time frames we provide during the checkout process are estimates only and are not guaranteed.

Where we deliver product in instalments, each instalment constitutes a separate contract. Any defect in one or more instalment does not entitle you to repudiate the contract as a whole or cancel any subsequent instalment.

Section 11: Returns and Refunds

Digital River offers a standard 30-day return policy. However, certain products and services are subject to a different return policy.  Please refer to the return policy presented on the Site for any return policy that applies to your purchase.  Any right of return applicable to your purchase of software does not apply in the event you open the software shrink-wrap, break the licence seal, or use the software.

For shoppers outside of the United States, special terms may apply to your right to return and refund. Please see the Local International Terms section below.

If you have questions about your order, please contact us at onlinestore.en.cs@digitalriver.comonlinestore.en.cs@digitalriver.com and we will direct your inquiry to the appropriate customer service team for your order.

Section 12: Title and Risk of Loss

Provided your designated payment method has been honoured, (1) title to physical products transfers to you when we deliver the physical products to the Delivery Address; (2) title of digital products and services transfers when we make the product available for download.

Risk of loss (1) for physical products transfers to you when we deliver the physical goods to the delivery address; and (2) for digital products and services when we make the product available for download. If no signature is required for the delivery of physical goods, you accept all risk of loss for theft or loss when we deliver the product to the delivery address.

If you refuse delivery when our designated carrier attempts to make delivery of any physical products, you assume any risk of loss or damage to the products when the carrier attempts delivery. In that event, (1) you are still liable for full payment for the products that the carrier attempted to deliver; (2) you are liable for any additional costs attributable to your failure to take delivery, including storage costs; and (3) after 30 days, we shall be entitled to dispose of the products in a manner we deem appropriate and may offset any proceeds of a sale against any sums you owe us.

Section 13: Warranty

Except where required by law, or otherwise indicated by us in writing, we offer no warranty on the products and services we sell. We make no statements as to the quality, fitness for a specific purpose, performance, correspondence with description, software installation, configuration, or error or defect correction. You will receive the benefit of any warranty offered by the manufacturer, licensor, or supplier of the product or services in connection with the sale. For details of any warranty applicable to your purchase, refer to the relevant documentation supplied with the product or on the Site where you purchased your product or service. This documentation may also contain the procedures applicable to the repair or replacement of defective products.

Section 14: Limitation of Liability

Digital River is neither the manufacturer nor publisher of the products and services offered for sale on this Site. Except as otherwise provided for in these Terms, Digital River supplies products and services “as is” to the fullest extent permitted by law, with no warranties or representation of any kind. Digital River disclaims, to the fullest extent permitted by law all warranties, express, implied, and statutory, including all warranties of merchantability, fitness for a particular purpose, and non-infringement. The company does not warrant that any products will be in stock, safe, defect-free, conform to written or oral specifications, guarantees, representations or promises. Digital River does not warrant that the products will not be lost or damaged during delivery.

To the maximum extent permitted under applicable law, in no event and under no legal basis will Digital River, its suppliers, or licensors be liable to you or any third party for any damages, costs, or liabilities arising from or related to the purchase or use of any products or services or these terms, including, without limitation, any direct, indirect, incidental, consequential, or special damages (e.g. damages for expense or business interruption, property damage, attorneys’ fees, lost profits, lost use, revenue, goodwill, or value of assets or securities) even if Digital River has been advised or is otherwise aware of the possibility of such damages. Digital River’s total aggregate liability arising out of or related to the purchase and sale of a product or services is limited to the amount you paid to Digital River for such product or service.

The above limitations of liability form the fundamental basis of the bargain between you and Digital River. The above cap on liability will not apply to liability for Digital River for (a) death, personal injury, or property damage directly or indirectly caused by the item you purchased from Digital River; or (b) damages caused by Digital River’s fraud, fraudulent misrepresentations, intentional misconduct, gross negligence, or any other matters for which liability cannot be excluded or limited under applicable law.

Nothing in this section limits or excludes liability that cannot be limited or excluded under applicable law.

Section 15: Indemnification

You agree to indemnify and hold Digital River, our parent, and each of our officers, employees, agents, partners, content providers, service providers, suppliers, and licensors (collectively “Released Parties”) harmless from any and all claims, liabilities, costs, losses, and expenses, including reasonable attorneys’ fees, arising from (1) your purchase of products and services made available through this Site; and (2) your fraudulent or deceptive acts or omissions, or breach or violation of law, including infringement of any IP claim or breach of these Terms.

Section 16: Dispute Resolution

We hope that you are completely satisfied with the purchase of your product or service. We will make every reasonable effort to resolve any disputes you may have with us. However, if we are unable to resolve any dispute that arises in connection with your transaction, this Site, or these Terms to your satisfaction, this section governs the dispute resolution process.

For shoppers outside of the United States, special terms may apply to your right to Dispute Resolution. Please see the Local International Terms section below.

Arbitration Provision

Any claim, dispute, or controversy you may have against us arising out of, relating to, or connected with this Site or your transaction shall be resolved exclusively by binding arbitration by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable) and as amended by these Terms (“Arbitration Rules and Procedures”).

The AAA’s Rules, and a form for initiating arbitration proceedings, are available on the AAA’s website located at http://www.adr.orghttp://www.adr.org.

This section applies to all consumers to the fullest extent allowable by law. The disputes governed by this Section include without limitation (1) claims arising out of or relating to any aspect of the relationship between you and us; (2) claims arising from your use of the Site; and (3) claims currently subject to a purported class action litigation in which you are not a member of a certified class.

However, the dispute resolution procedure specifically does not apply to (1) a claim relating to the enforcement or validity of your or our intellectual property rights; or (2) a claim relating to an allegation of theft, piracy, or unauthorised use.

You agree that: (1) the arbitrator shall apply New York law consistent with the Federal Arbitration Act and applicable statutes of limitations, including principles of equity, and shall honour claims of privilege recognised by law; (2) the arbitrator shall not be bound by rulings in prior arbitrations involving us, but is bound by rulings in prior arbitrations involving both you and us to the extent required by applicable law; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.

You and we agree that (1) each of us can only bring claims against the other on an individual basis and there shall be no authority for any claims to be arbitrated on a class or representative basis; (2) arbitration can decide only your and/or our individual claims, and the arbitrator may award relief only in favour of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s); and (3) the arbitrator may not consolidate or join claims of other persons or parties who may be similarly situated and may not otherwise preside over any form of consolidated, representative, or class proceeding. If any section of this paragraph is determined to be illegal, invalid, or unenforceable then the entirety of this Arbitration Provision shall be null and void, and neither party shall be entitled to arbitrate their dispute.

Except as specified in the paragraph immediately above, if any part of this Arbitration Provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Arbitration Rules and Procedures established by the AAA, then the remaining provisions of the Arbitration Provision will not be affected and will be enforced to the fullest extent of the law.

Governing Law and Venue

In the event that the above Arbitration Provision does not apply to you or to a particular claim or dispute, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in Hennepin County, Minnesota, and both you and we agree to submit to the personal jurisdiction of the courts located within Hennepin County, Minnesota for the purpose of litigating all such claims or disputes applying the law of the state of New York, United States of America.

Section 17: Severability

If any provision (or part of a provision) of the Terms is determined to be invalid, illegal, or unenforceable, the validity of the remaining provisions will not be affected and will be enforced to the fullest extent permitted by the applicable law.

Section 18: No Waiver

Any delay or failure by us to exercise or enforce any right or provision of these Terms does not constitute a waiver on our part. A waiver of any breach or default in one instance does not constitute a waiver of any breach or default in a subsequent breach or default. No waiver by us will be effective unless it is in writing and signed by us.

Local International Terms

To our shoppers outside of the United States, the terms set forth below in this Local International Terms section are additional and supplemental to the Terms above. Where a provision within this section is inconsistent with the general terms outlined above, the terms specific to your jurisdiction will apply to your purchase

European Union, England, and Wales

Right to Withdrawal

If you are a consumer, in addition to any returns policy associated with your sale, you have a right to withdraw from (or cancel) this contract within 14 calendar days without giving a reason.

In the case of a service or digital content, your right to withdrawal expires 14 days from the conclusion of the contract.

In the case of goods, your right to withdrawal expires 14 days after the day on which you, or a third party indicated by you (other than a carrier) takes physical possession of the goods or:

  • In the case of multiple goods on one order and delivered separately, the day on which you, or a third party indicated by you, takes physical possession of the last good;
  • In the case of a good consisting of multiple lots or pieces, the day on which you, or a third party indicated by you, takes possession of the last lot or piece;
  • In the case of a contract for regular delivery of goods during a defined period, the day on which you, or a third party indicated by you, takes physical possession of the first good.

Consequences of Withdrawal

If you withdraw from this contract, we will refund all payments we received from you — including delivery costs (except for additional costs where you choose a shipping method faster than the least expensive delivery method) — no later than 14 days from the day on which we receive your notification of withdrawal. Unless you have expressly agreed otherwise, we will refund your payment using the same method of payment you used in the original transaction. In any event, you will not incur a handling or cancellation fee as a result of your refund.

You must return any good to us immediately, and in any event no more than 14 days from the date on which you inform us of your withdrawal from this contract. This deadline is met if you send us the goods before the expiration of this 14-day period. You bear the direct costs of returning the goods to us. You must take necessary precautions to preserve the goods and you must pay us for any loss in value in the goods that is directly attributable to your mistreatment or mishandling of the goods upon examination of their quality, characteristics, and functionality. We may refuse to issue a refund until we have received the goods back or until you have provided proof of their return.

Loss of Right to Withdrawal with Digital Goods

Where this contract involves the delivery of digital content not supplied in a physical medium, your right of withdrawal expires where (1) you expressly agree performance of the contract will begin prior to the expiration of the 14-day withdrawal period and (2) you acknowledge that you will lose your right to withdrawal if performance of the contract begins prior to the expiration of the 14-day withdrawal period.

No Right to Withdrawal

For any contract that involves delivery of sound recordings, video recordings, or computer software in a sealed package, you lose your right to withdrawal if the seal is removed or broken after delivery.

You have no right of withdrawal where the contract involves delivery of goods that are made to your specifications or are clearly personalised.

Exercising your Right to Withdrawal

If you wish to exercise your right to withdrawal, please notify us of your decision to withdraw by post or email.

Digital River Ireland, Ltd

Dromore House, East Park,

Shannon Co. Clare, Ireland

cancellation_eu@digitalriver.comcancellation_eu@digitalriver.com

You are not required to use a particular format to exercise this right; any unequivocal statement that you are exercising your right to withdrawal is enough.

You may also exercise you right by using the online form available at this link: Cancellation Form.

Regardless of how you contact us, you must send your notice of withdrawal before the cancellation period expires.

Guarantees

Under EU law and related member state law, subject to the exceptions outlined below, all products you purchase from the Site are protected by a 2-year guarantee that the products conform to the contract.

A product conforms to the contract if it:

  • Complies with the description we provided to you prior to the conclusion of the contract;
  • Is fit for the purpose for which you require it if you have made that purpose known to us prior to the conclusion of the contract;
  • Is fit for the usual purposes of goods of the same type; and
  • Shows the quality and purpose for which goods of the same type and which you, as a consumer, can reasonably expect given the nature of the product, taking into account any statements made by us or the manufacturer or its representative, particularly in advertising or labelling.

A product does not lack conformity if you were aware (should have been aware) of the lack of conformity at the time the contract was concluded. A product does not lack conformity if the lack of conformity is a result of materials supplied by you.

If a product does not conform to the contract, you have the right to (1) ask us to bring the goods into conformity free of charge by either repairing or replacing the product; (2) a price reduction; or (3) rescind the contract with regards to any non-conforming goods. You may not be entitled to repair or replacement if repair or replacement is impossible or the cost disproportionate to the cost of an alternative remedy.

If you are a consumer in the following countries, the following time periods apply to your purchase:

  • Finland – the duration of the guarantee is based on the expected lifespan.
  • Iceland – the duration of the guarantee is normally 2 years and 5 years for goods expected to have a longer lifespan.
  • Ireland – you must exercise your rights within the 6-year limitation period.
  • Netherlands – the duration of the guarantee period is based on the expected lifespan of the goods.
  • Norway – the duration is normally 2 years and 5 years for goods expected to have a longer lifespan.
  • Sweden – the duration of the guarantee is 3 years.
  • England, Wales, and Northern Ireland – you must exercise your rights within the 6-year limitation period.
  • Scotland – you must exercise your rights within the 5-year limitation period.

Dispute Resolution

Subject to any mandatory local law, these Terms shall be governed by English Law and we both agree to the non-exclusive jurisdiction of the English Courts of London over the Terms and any other matter related to them, and all proceedings shall be conducted in English.