Master Service Agreement

Last Updated: July 2, 2024

This Master Service Agreement (this “Agreement”) is a legally binding agreement by andbetween Route App, Inc. (“Route”) and any merchant that accesses and uses the Services (as defined below) (“Merchant,” “You,” “Your,” or “Yours”). Route and Merchant are sometimes referred to herein individually as a “Party,” and collectively the “Parties.”  

Background

  1. Route has developed a series of computer software programs that facilitate and provide e-commerce and related order shipping, tracking, and other post-purchase solutions, which it updates, and modifies, and customizes from time to time (the “Software”). Route provides its clients access to the Software as end users via a software-as-a-service provider (SaaS) model, in which Route uses, operates, and makes available the applicable software, network, systems, and other technologies (the “Services”) in order to provide the Services (as defined below) to such clients via the internet and a web browser. For all purposes of this Agreement, the term “Services” shall include and refer to the specific version(s) of the Software and any applicable APIs. Merchants may be able to access the Services automatically through the functionality of certain Third-Party Services (as defined below). From time to time, Merchants may, in the alternative, access the Services, and additional Services, directly from Route and in such cases, the Parties may enter into a mutually executed service order which references the Agreement and specifies additional Services, as well as corresponding terms and conditions (the “Service Order”). If the Parties enter into a Service Order, then this Agreement includes and incorporates the Service Order by reference. In the event of a conflict between this Agreement and a Service Order, the terms and conditions of the Service Order will take precedence over the terms and conditions of this Agreement.
  2. Merchant would like to use the Services, and Route would like to provide the Services to Merchant, according to the terms and conditions of this Agreement.

By accessing and using the Services, Merchant acknowledges that Merchant has carefully read and agrees to be bound by this Agreement. If any individual is accessing and using the Services on behalf of a company (such as the individual’s employer) or other legal entity, such individual represents and warrants that it has the authority to bind that entity to this Agreement. In that case, “Merchant” will refer to that entity.

  1. 1.0  License of Services; Restrictions; Implementation. 
    1. 1.1 License. Subject to the terms of this Agreement, Route hereby grants to Merchant a limited, non-exclusive, non-transferable (except pursuant to Section 12.6 below), revocable, world-wide license, during the Term, to: (i) use and access the Services in accordance with this Agreement and applicable documentation for Merchant’s internal business purposes; and (ii) enable Merchant’s end user customers to access the Services through Merchant’s website or connected third-party website, as applicable. In furtherance of Section 1.1(ii), the license granted in this Section 1.1 includes the limited right to sublicense the Services solely for Merchant’s end user customers to access the Services when making purchases on Merchant’s website or connected third-party website(s).
    2. 1.2 Restrictions. Merchant will not, and will not permit any individual or entity to, directly or indirectly: (i) use the Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Services or related documentation; (iii) frame, mirror, sell, resell, rent, or lease use of the Services to any other person or entity, or otherwise allow any person or entity to use the Services for any purpose other than for the benefit of Merchant in accordance with this Agreement; (iv) use the Services or applicable documentation in any way or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right (as defined below) or other right of any person or entity, or that violates any applicable law; (v) use the Services to send spam or otherwise duplicative or unsolicited messages to third parties in violation of applicable law; (vi) use the Services to send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (vii) access or search the Services (or download any data or content contained in the Services or transmitted through the Services) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than features provided by Route for use expressly for such purposes; (viii) interfere with or disrupt the integrity or performance of the Services or the data contained in the Services; (ix) reverse engineer, disassemble, decompile, decode, or otherwise attempt to gain unauthorized access to the Software, Services, or related systems or networks; (x) access or use the Services to develop, or have a third party develop, a product or service that is similar or competitive to the Services, including but not limited to any product or service that offers or makes available shipping insurance to its customers; or (xi) use the Services if Merchant is a direct competitor of Route.  
    3. 1.3 Additional Restrictions. Merchant will not utilize the Services if Merchant is a direct competitor of Route. Further, during the term, Merchant agrees that Route will be its exclusive provider of any service and/or software that enables Merchant to offer consumer-facing shipping insurance, shipping protection, shipping warranty, or offering similar to any such services (collectively and individually, “Shipping Protection”), unless the merchandise covered by such Shipping Protection is not covered by the Route Shipping Protection and the Route insurance policy, which is provided at https://route.com/insurance/. In addition, at all times during the Term and thereafter for a period of twenty-four (24) months, You will not for any reason, whether directly or indirectly, (i) solicit, recruit, or encourage any Route customer, employee, or consultant to reduce, alter, or terminate its relationship with Route or (ii) divert any potential Route customer away from Route.
    4. 1.4 Authorized Users. Merchant will not allow any person or entity to use the Services other than individuals that Merchant has authorized, which may include only Merchant’s employees, Merchant’s contractors who are supporting Merchant’s e-commerce operations, and employees and contractors of Merchant’s affiliates (i.e.,  entities controlled by Merchant such that Merchant has decision-making authority over such entities) which are not competitors of Route (collectively, the “Authorized Users”) to use the Services. Merchant may allow Authorized Users to use the Services, provided that Merchant ensures each Authorized User complies with all applicable terms and conditions of this Agreement (including all restrictions in Section 1.2 above, and all applicable terms of service, privacy policies, and acceptable use policies which may be posted or made available through the Services) and Merchant is responsible for acts or omissions by Authorized Users in connection with their use of the Services. In some cases, the Authorized Users may receive Services from Route by executing a mutually agreed upon Service Order with Route. If an Authorized User and Route execute a Service Order as previously described, such Authorized User will be deemed the “Merchant” under this Agreement for purposes of such Service Order. Merchant will, and will require all Authorized Users to, use all reasonable means to secure usernames and passwords, hardware, and software used to access the Services in accordance with customary security protocols, and will promptly notify Route if Merchant knows or reasonably suspects that any username and/or password has been compromised. 
    5. 1.5 Third-Party Services. Certain features and functionalities within the Services may allow Merchants and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content, including but not limited to Shopify, WooCommerce, Big Commerce, Salesforce Commerce Cloud and Adobe Commerce (collectively, “Third-Party Services”) through the Services. Route does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade to the Third-Party Services.  Merchant is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Merchant to use the Third-Party Services in connection with the Services.
    6. 1.6 Implementation.Merchant shall implement the Services on Merchant’s online point(s) of sale (including Merchant’s website and connected third-party website(s)), which shall be approved by Route in its sole discretion, as applicable and in a manner agreed by the Parties and display reasonable and mutually agreed crediting and branding. For clarity, Merchant may not change such approved online point(s) of sale nor allow any redirects from such online point(s) of sale without Route’s prior written consent.
  2. 2.0 Support and Maintenance. During the Term, and provided that Merchant has paid all fees due and owing to Route and is otherwise in compliance with the terms of this Agreement, Route will provide the following support and maintenance services to Merchant:
    1. 2.1 Technical Support.  Route will use commercially reasonable efforts to provide Merchant with technical support services to assist Merchant in utilizing the Services, which may be further described in the Service Order, as applicable. Route will make reasonable, good faith efforts to respond to technical support requests and to correct errors within a reasonable time. Merchant will cooperate with Route in providing such documentation and information as Route may reasonably request, so that Route can verify and reproduce the reported error. Merchant acknowledges and agrees that the support services set forth in this Section 2.1 and the Service Order, as applicable, are performance targets only and any failure of Route to meet any support service will not result in any breach of the Agreement or any payment or liability of Route to Merchant. 
    2. 2.2 Claims Process. Merchant acknowledges that its end users may file a notice of physical loss or damage from any external cause with respect to their shipments. Further, from time to time, Route may allow Merchant to file such notice on behalf of its end user customers. The claims process for such notice will be governed by the Route Terms and Conditions. Merchant shall, at all times during the applicable claims process initiated by Merchant’s end users or Merchant itself, cooperate in good faith with Route to come to a reasonable solution, including without limitation, grant Route the exclusive right to subrogation for claims of damages or theft with respect to the shipping of items purchased on Merchant’s website or connected third-party website(s).
    3. 2.3 Shipping. Merchant will employ the best method(s) possible in accordance with good commercial practice and applicable laws and standards when shipping any items to Merchant’s end users who make purchases on Merchant’s website or connected third-party website(s) and use the Services.
  3. 3.0 Economics.
    1. 3.1 Fees. During the Term, Merchant will remit to Route those certain non-refundable fees and charges collected by the Merchant, specified through the functionality of the Services or Third-Party Services, or on the Service Order(s), as applicable (the “Fees”) according to the terms in this Agreement and such Service Order(s), as applicable. Merchant is responsible for all applicable taxes on the fees and charges paid by Merchant, including, without limitation, any and all sales, use, and value-added taxes.If Merchant is required to deduct or withhold any taxes from the amounts payable to Route under this Agreement, Merchant will remit an additional amount, so that Route receives the amounts due to it under this Agreement in full, as if there were no withholding or deduction. In order to maintain claim ratios, Route reserves the right to change the Fees or applicable charges and to institute new charges and Fees during the Term, upon ten (10) days’ notice to Merchant (which may be sent by email) (“Adjustments”), and the not-to-exceed amounts for such Adjustments will be set forth in the applicable Service Order, provided that in the event Route notifies Merchant of an Adjustment, Merchant may terminate this Agreement within ten (10) days of such notice without Early Termination Fees, and the provisions of Section 6.4 will apply. It is Merchant’s responsibility to provide Route updated contact information either directly, or through the Merchant Portal. For Route’s Shipping Protection product, Route will issue weekly invoices to Merchant for the previous week in which such Fees were incurred, and Merchant shall have two (2) business days to review and dispute the amounts included in such invoice. If Merchant does not notify Route of any dispute in writing (which may be sent by email) within such two (2) business day period, then Merchant will be deemed to have approved such amount, and Merchant will pay all amounts included on any such invoice no later than one (1) week after the date of such invoice. For Route’s package Tracking or Carbon product, Route will issue monthly invoices to Merchant for the previous month in which such Fees were incurred, and Merchant shall have three (3) business days to review and dispute the amounts included in such invoice. If Merchant does not notify Route of any dispute in writing (which may be sent by email) within such three (3) business day period, then Merchant will be deemed to have approved such amount, and Merchant will pay all amounts included on any such invoice no later than thirty (30) days after the date of such invoice. To be considered by Route, Merchant agrees that any requests for refunds of Fees remitted for canceled orders, must be made within six (6) months of the canceled order.  Payments due to Route under this Agreement must be made in U.S. dollars by check, wire transfer or ACH of immediately available funds to an account designated by Route, credit card (in which case, additional costs may apply), or such other payment method directed by Route. All payments are non-refundable. Route will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to Merchant under this Agreement, as applicable. If Merchant fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Route may suspend the Services until all payments are made in full. Merchant will reimburse Route for all reasonable costs and expenses incurred, including reasonable attorneys’ fees and other litigation costs in collecting any Fees and late charges, and for enforcing any terms of this Agreement.
  4. 4.0 Ownership of Intellectual Property
    1. 4.1 Route IP.  Subject to the limited rights expressly granted in this Agreement, Route reserves and, as between the Parties will solely own, the Services, the underlying software provided in conjunction with the Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services, the applicable documentation, Route’s logo and the product names associated with the Software and Services, and Aggregate Data (as defined below), and any suggestions, ideas, enhancements, requests, feedback, recommendations, or other information provided by Merchant to Route or any other party regarding the Services during the Term (the “Route IP”), all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing and all rights, title and interest in and to the Route IP.  No rights are granted to Merchant under this Agreement (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth in this Agreement. “Intellectual Property Rights” means all worldwide intellectual property rights, including without limitation, copyrights, trademarks, service marks, trade secrets, trade dress, know how, inventions, patents, patent applications, moral rights and all other proprietary rights, whether registered or unregistered. 
    2. 4.2 Merchant IP; DataMerchant (together with its licensors, where applicable) retains all right, title and interest in and to (a) all graphics, images, files, and data (including product catalogs or user signals); and (b) reports and other materials and/or other information inputted or generated or provided by or on behalf of You in connection with the Services (collectively, the “Data”). For clarity, the Data does not include Your end users’ data accessed, collected, or used by Route, pursuant to Route’s Terms and Conditions and Privacy Policy between Route and such end user, even if such data is the same or similar to the Data.  Merchant is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to utilize the Data. Merchant hereby grants Route a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the Data solely for the purpose of hosting, operating, improving and providing the Services, Route’s other related products, services, and technologies during the Term. Merchant represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Data under this Agreement; and (ii) Route’s use of the Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Merchant and any third party. Route may derive or aggregate data in deidentified form from the Data or Merchant’s and/or its Authorized Users’ use of the Services, including, without limitation, any usage data or trends with respect to the Services (the “Aggregate Data”).
  5. 5.0 Trademarks. Subject to the terms and conditions of this Agreement, each Party (“Owner”) hereby grants to the other Party (“Marks User”) a limited, non-exclusive, non-sublicensable, royalty-free, and non-transferable (except as permitted under Section 12.6) license during the Term to use Owner’s trademarks (the “Marks”) solely to offer, market, and promote Merchant’s and Route’s products and services in connection with this engagement, in accordance with Owner’s then-current trademark usage guidelines, which shall be provided by Owner to Marks User at Marks User’s request. Notwithstanding the foregoing, Route may use Merchant’s Marks in its marketing, public relations, and promotional activities in connection with Route’s products and services without Merchant’s prior approval. All other uses of Route’s Marks by Merchant are subject to Route’s prior written approval. All uses of the Marks, and all goodwill associated therewith, shall inure solely to the benefit of Owner. Marks User will not at any time (i) challenge, or cause, induce, authorize, or assist any person to challenge, the validity of the Marks or Owner’s ownership, use or registration of or rights in any of the Marks; or (ii) take any action in derogation of Owner’s rights in the Marks, including by using, licensing or applying to register any trademark that is identical or substantially/confusingly similar to any of the Marks.  If Marks User acquires any rights in any trademark that is identical or substantially/confusingly similar to any of the Marks, by operation of law or otherwise, Marks User hereby irrevocably transfers and assigns, and agrees to irrevocably transfer and assign, at no additional cost, all such rights to Owner and its successors, together with all associated goodwill in and applications and registrations for such trademark.  
  6. 6.0 Term and Termination.
    1. 6.1 Term.  Unless as otherwise specified in the Service Order(s), as applicable, the term of this Agreement (the “Term”) will begin on the date You access the Services and offer them to your end users (the “Launch Date”) and remain in effect on a month-to-month basis, unless earlier terminated as provided below or in the applicable the Service Order(s). 
    2. 6.2 Termination. Subject to Sections 6.3 and 6.4 of this Agreement, the Parties agree as follows with respect to termination:
      1. 6.2.1 Generally. If You do not enter into a Service Order with Route, Route may suspend or terminate you access to and use of the Services, or terminate this Agreement, at its sole discretion, at any time and without notice to Merchant. 
      2. 6.2.2 Service Order. If You enter into a Service Order with Route under this Agreement: 
        1. 6.2.2.1 Termination for Cause.  During the Term, either Party may terminate this Agreement for cause if the other Party: (i) commits a material breach of this Agreement and fails to cure within thirty (30) days ( for late payments Merchant has three (3) days to cure), after receipt of written notice outlining such breach from the other Party; or (ii) becomes insolvent, acknowledges insolvency in any manner, ceases to do business, makes an assignment for the benefit of its creditors, or files a petition in bankruptcy.
        2. 6.2.2.2 Termination for Convenience. During the Term, Route may terminate this Agreement without cause with at least ten (10) days’ prior written notice and without refund, in which case Route will remain obligated to provide Services to Merchant under this Agreement as set forth on the Service Order(s) and until the date of termination.    
    3. 6.3 Early Termination. If Merchant enters into a Service Order with Route under this Agreement, without limiting Section 6.2 of this Agreement and where applicable, if Merchant removes Route code; uninstalls the Services from its customer-facing e-commerce storefront; materially breaches Section 1.6; without written permission from Route, alters the manner in which the Services are offered to the Merchant’s end users as described in the Service Order; or otherwise intentionally inhibits its customers’ ability to apply the Services to their orders all deemed (“Early Termination”), Route may immediately terminate this Agreement upon written notice to Merchant of such termination, Merchant will be subject to the Early Termination provision in the Service Order. 
    4. 6.4 Effect of Termination. Following any termination of this Agreement, Route will discontinue providing Services to Merchant and Merchant will promptly cease using Services. Within thirty (30) days after the end of the term or earlier termination of this Agreement: 
      1. Except as expressly set forth in this Section 6.4, no expiration or termination will affect Merchant’s obligation to pay all Fees that become due or otherwise accrued through the effective date of expiration or termination or entitle Merchant to any refund.
      2. Route will make available to Merchant a portal through which Merchant may download a list of completed transactions including email addresses of Merchant’s end users and dates of transactions (“Transaction Data”) that occurred during the Term for a period of thirty (30) days. Merchant expressly acknowledges that Route has no obligation to retain the Transaction Data, and may delete all such Transaction Data, after the aforementioned thirty (30) day period has ended.  
      3. Route will refund any unused but paid Fees prepaid by Merchant if Merchant terminates this Agreement for cause.
  7. 7.0 Representations and Warranties.
    1. 7.1 Mutual. Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated in this Agreement are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.    
    2. 7.2 Limitation of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, ALL SERVICES ARE STRICTLY ON AN “AS IS” BASIS, AND ROUTE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE TO MERCHANT, ITS AUTHORIZED USERS, OR TO ANY PARTY REGARDING THE ROUTE IP, THE SERVICES, OR ANY OTHER SERVICES OR MATERIALS PROVIDED UNDER THIS AGREEMENT, NOR AS TO THE RELIABILITY, ACCURACY, OR COMPLETENESS OF THE SOFTWARE OR SERVICES. ROUTE DOES NOT REPRESENT OR WARRANT THAT: (A) MERCHANT’S USE OF THE SERVICES SHALL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM(S), OR DATA; (B) THE SERVICES WILL MEET MERCHANT’S REQUIREMENTS OR EXPECTATIONS; OR (C) THAT ALL NON-CONFORMITIES CAN BE OR WILL BE CORRECTED.  ROUTE DOES NOT MAKE ANY WARRANTIES, REPRESENTATIONS, OR CONDITIONS WITH RESPECT TO ANY THIRD-PARTY SERVICES OR CONTENT, EXPRESS OR IMPLIED.  
    3. EXCEPT AS SET FORTH IN THIS SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ROUTE EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, CONDITIONS AND REPRESENTATIONS RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND MERCHANTABILITY.

    4. 7.3 Internet Delays. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT WITH USING THE INTERNET AND ELECTRONIC COMMUNICATIONS. ROUTE IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
  8. 8.0 Confidential Information and Data Privacy.
    1. 8.1 Definitions. For all purposes of this Agreement, “Confidential Information” means any non-public information disclosed by one Party (or its agents) to the other Party, either directly or indirectly, whether communicated in writing, orally or by inspection of tangible objects, including, without limitation, methodologies, data, trade secrets, product plans, products, services, customers, designs, inventions, processes, drawings, engineering, hardware configuration information, marketing or financial information; the substantive terms of this Agreement, the Service Order(s), as applicable, and, in the case of Route, the Software, Services, and, in the case of Merchant, the Data; the design, “look and feel” specifications, components, functionality or operation and payment terms and pricing of our Services.  “Confidential Information” includes any such information which by its nature should reasonably be understood by the Recipient to be confidential, whether or not such information is designated as “Confidential,” “Proprietary” or some similar designation.  “Confidential Information” also includes any and all non-public information relating to any know-how, training, associated documentation, and other related materials. Notwithstanding the foregoing, Confidential Information will not include any information that: (a) was publicly known prior to the time of disclosure by the Discloser through no act or failure to act by the Recipient; (b) becomes publicly known after disclosure by the Discloser to the Recipient through no action or inaction of the receiving Party; (c) is already in the rightful possession of the Recipient at the time of disclosure by the Discloser (as shown by the Recipient’s files and records) prior to the time of disclosure; (d) is rightfully obtained by the Recipient from a third party without a breach of such third party’s obligations of confidentiality to the Discloser; or (e) is independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information (as shown by documents and other competent evidence in the Recipient’s possession); “Recipient” shall mean the Party receiving Confidential Information from the other Party; and “Discloser” shall mean the Party providing Confidential Information to the other Party.
    2. 8.2 Data Privacy. Each Party shall perform its obligations under this Agreement in compliance with applicable law relating to the protection of privacy and data as set out in the Data Processing Addendum (“DPA”).  Merchant shall provide all of its customers with any disclosure or explanation required by applicable law concerning customers’ use of the Services, and obtain, maintain and secure any necessary consent and authorizations from its customers that may be required by applicable law in order to authorize Route’s provision of the Services, or otherwise ensure a lawful basis for Route’s provision of the Services and processing of customer data, including any Personal Data (as such term is defined in the DPA).
    3. 8.3 Use and Disclosure. Recipient will not disclose to any person or use for any purpose, except as expressly permitted by this Agreement and as necessary to perform its obligations or exercise its rights under this Agreement, any Confidential Information of Discloserprovided that Route may use and modify Confidential Information of Merchant in deidentified form for purposes of developing and deriving Aggregate Data. Notwithstanding the foregoing sentence, Recipient may disclose Confidential Information to those employees, independent contractors, and advisors who have a demonstrated need to know such information, and who are bound to keep such information confidential by restrictions at least as protective as those set forth in this Agreement. Further, Recipient may disclose Confidential Information as may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Recipient providing to the Discloser reasonable written notice to allow the Discloser to seek a protective order or otherwise contest the disclosure. Recipient will give Discloser’s Confidential Information at least the same level of protection as it gives its own Confidential Information of similar nature, but not less than a reasonable level of protection. Recipient will maintain Confidential Information in a safe and secure place and will not copy Confidential Information except to the extent necessary for the purposes of this Agreement. All confidentiality obligations will survive termination of this Agreement until such time as such information no longer meets the definition of Confidential Information.  Upon written request from either Party, Recipient will promptly return or destroy all documents and Data in its possession that contain any Confidential Information.  
  9. 9.0 Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED HEREIN, AND EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, (III) BREACH OF MERCHANT’S OBLIGATIONS IN SECTIONS 1.2, 1.3, OR 1.6, OR (IV) BREACH OF MERCHANT’S PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY (INCLUDING, AS APPLIED TO ROUTE, ROUTE, ON BEHALF OF ITSELF AND THE OTHER ROUTE PARTIES (AS DEFINED BELOW)) BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SOFTWARE, SERVICES, OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERRORS, OR OMISSIONS, EVEN IF A PARTY HAS BEEN SPECIFICALLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ROUTE’S OR ANY OF ITS AFFILIATES’ TOTAL AGGREGATE LIABILITY TO MERCHANT OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY MERCHANT TO ROUTE IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT ROUTE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 9 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN ROUTE AND MERCHANT, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
  10. 10.0 Indemnification. 
    1. 10.1 Route.
      1. Indemnification Obligations. Subject to Section 10.1(b), Route will defend Merchant against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Merchant’s use of the Services as authorized by this Agreement infringes or misappropriates such third party’s Intellectual Property Rights and will indemnify and hold harmless Merchant against any damages and costs awarded against Merchant or agreed in settlement by Route (including reasonable attorneys’ fees) resulting from such Claim.
      2. Exclusions from Obligations. Route has no obligation to indemnify Merchant for any infringement Claim to the extent that it arises out of or is based upon (i) Merchant’s use of the Services in combination with third-party products or services not authorized by Route or the applicable documentation; (ii) any aspect of the Services configured specifically for Merchant to comply with designs, requirements, or specifications required by or provided by or on Merchant’s behalf; (iii) use of the Services by Merchant, any user, or any third party outside the scope of the rights granted in this Agreement; (iv) failure of Merchant to use the most recent version of the Services (including any updates or upgrades provided to Merchant by Route); (v) Merchant’s breach of this Agreement, negligence, willful misconduct or fraud; or (vi) any unauthorized modification of the Services or modifications to the Services by anyone other than Route.
      3. Infringement Remedies. If Route reasonably believes the Services (or any component thereof) could infringe any third party’s Intellectual Property Rights, Route may, at its sole option and expense: (i) procure for Merchant a license to continue using the Services; (ii) replace or modify the allegedly infringing technology to avoid the infringement; or (iii) if the foregoing options are not commercially feasible in Route’s sole judgment, refund any prepaid, unused Services fees as of the date of termination depreciated on a straight line basis over twelve (12) months. This Section 10.1 states Route’s sole and exclusive liability, and Merchant’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party patent right by the Services.
    2. 10.2 Merchant. Merchant will indemnify, defend, and hold harmless Route, its parents, subsidiaries, affiliates, and service providers, and each of their respective officers, employees, contractors, agents, and business partners (collectively, the “Route Parties”) against Claims arising from or relating to (i) Merchant’s unauthorized use of the Services or use of the Services by Merchant or its Authorized Users in a manner that is not in accordance with this Agreement or the applicable documentation, including any breach of the license restrictions in Section 1.2; (ii); Route’s compliance with Merchant’s designs, specifications or instructions; (iii) any Data hosted in an online service by Route on Merchant’s behalf that misappropriates a trade secret or infringes a patent, copyright, trademark, or other Intellectual Property Right of a third party or violates applicable laws; (iv) Merchant’s unauthorized modification of the Services; (v) Merchant’s instructions or Merchant’s failure to comply with applicable law, or (vi) any of Merchant’s products or services, or the operation of its business.
    3. 10.3 Indemnification Procedure. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than ten (10) business days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services).  The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
  11. 11.0 Force Majeure. Neither Party will be liable for any delays or failures of performance hereunder, excluding the payment of money, to the extent that performance of such Party’s obligations or attempts to cure any breach under this Agreement are delayed or prevented as a result of any event or circumstance beyond its reasonable control of such Party.
  12. 12.0 Miscellaneous.
    1. 12.1 Survival. Each Party’s obligation under Sections 1.3, 3 (for Fees payable as of the date of expiration/termination), 4, 5, 6.4, 7, 8, 9, 10, and 12 will survive the expiration or termination of this Agreement.
    2. 12.2 Public Announcements. Merchant will not issue any press release or other public statement regarding this Agreement without the prior consent of Route, which will not be unreasonably withheld. Merchant hereby grants Route a limited, non-exclusive, royalty-free license to use and display Merchant’s name, designated trademarks, and associated logos (the “Merchant Marks”) during the Term in connection with Merchant’s marketing and promotional efforts for its products and services, including by publicly naming Merchant as a customer of Route. 
    3. 12.3 Subcontracting. Route may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate, provided that Route remains responsible for the performance of each such Subcontractor.  Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. PayPal), Route will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Route.
    4. 12.4 Equitable Relief. Each Party agrees that any breach of this Agreement with respect to the other Party’s Intellectual Property Rights or Confidential Information, or in the case of Merchant, a breach of Section 1.2 or Section 1.3, may cause such other Party to incur irreparable harm and significant injury that would be difficult to ascertain and would not be compensable by damages alone.  Accordingly, each Party agrees that, in addition to any other rights and remedies that the non-breaching Party may have at law or otherwise with respect to such a breach, the non-breaching Party will have the right to seek specific performance, injunction or other appropriate equitable relief (without any requirement to post bond).
    5. 12.5 Export Controls. Route provides services and uses software and technology that may be subject to U.S. export controls administered by the U.S. Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of the United States and other applicable laws. Merchant acknowledges and agrees that the Software and the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries which the United States, Switzerland, and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Services, Merchant represents and warrants that Merchant is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Merchant agrees to comply with all U.S., Swiss, and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
    6. 12.6 General. Merchant may not assign or transfer this Agreement, by operation of law or otherwise, without Route’s prior written consent, and any attempt by Merchant to do so, without such consent, will be void. Route may freely assign or transfer this Agreement without Merchant’s prior consent. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.  If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.  This Agreement, including any Exhibits and Service Orders, if applicable, is the complete and exclusive agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. Route reserves the right to clarify or amend this Agreement by publicly publishing a new version of them on its or any of its successors’ website. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent. Except as expressly set forth in this Agreement, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.  No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person or entity other than the Parties and their respective successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly disclaim the application of Uniform Computer Information Transaction Act and the United Nations Convention on the International Sale of Goods to this Agreement. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located nearest to Salt Lake City, Utah, and the Parties irrevocably consent to the personal jurisdiction and venue therein.  All notices required to be sent hereunder will be in writing and will be deemed to have been given when mailed by certified mail, overnight express, or sent by email, with receipt confirmed. “Including” means “including without limitation.” This Agreement may be signed in counterparts, and electronic signatures will have the same weight and effect as originals.
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