Linc is the premier post-purchase experience platform helping global brands transform customer needs into new revenue opportunity. Linc’s platform brings together shopper, purchase, and logistics data to empower brands with the ability to serve their shoppers 1-to-1 over any channel preferred channel.
1. SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, Linc will provide Company and its direct end-user customers located in the Territory (“Customers”) with access to the Services through the internet solely for Customer use of the Services as part of the Integrated Services (as defined in Section 4.1 below). The Services are subject to modification from time to time at Linc’s sole discretion, for any purpose deemed appropriate by Linc. Linc will use reasonable efforts to give Company prior written notice of any such modification. Company shall not make Services available to Customers except pursuant to an enforceable written agreement for Linc’s benefit signed by Customers that is at least as protective of Linc and its rights and technology as this Agreement.
1.2 Linc will undertake commercially reasonable efforts to make the Services available in accordance with the SLA policy attached as Exhibit A. Notwithstanding the foregoing, Linc reserves the right to suspend Company’s and/or Customers’ access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Company is in breach of this Agreement, including failure to pay any amounts due to Linc.
1.3 Subject to the terms hereof, Linc will provide reasonable support to Company for the Services from Monday through Friday during Linc’s normal business hours.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Company will not, and will not permit any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services, Widgets (as defined in Section 4.1 below), or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) rent, lease, copy, modify, superset, subset translate, create derivative works based on, or otherwise provide temporary access to, the Services, Widgets, or Software; (iii) use the Services, Widgets, or Software for timesharing or service bureau purposes or for any purpose other than for the benefit of Customers; (iv) remove any names, designations or notices from the Services, Widgets, or Software or (iv) use the Services, Widgets, or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations, including but not limited to any privacy laws, laws and regulations concerning intellectual property, consumer and child protection, obscenity or defamation.
2.2 Company will cooperate with Linc in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Linc may reasonably request. Company will also cooperate with Linc in establishing a password or other procedures for verifying that only designated employees of Company have access to any administrative functions of the Services.
2.3 Company will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Company may change the individual designated as Primary Contact at any time by providing written notice to Linc.
2.4 Unless otherwise specified by Linc, Company will use Linc’s then-current names, marks, logos, and other identifiers for the Services (“Trademarks”) and Linc designated intellectual property related notices in and for the Services, provided that Company will: (a) only use Trademarks in the form and manner, and in accordance with the Linc’s quality standards and usage guidelines and only in connection with Services; and (b) upon termination of this Agreement for any reason, immediately cease all use of the Trademarks. None of Company or any affiliate will (a) otherwise brand the Services or (b) otherwise use or register (or make any filing with respect to) any trademark, name or other designation relevant to the subject matter of this agreement anywhere in the world, whether during or after the Term of this Agreement or (b) contest anywhere in the world the use by or authorized by Linc of any trademark, name or other designation relevant to the subject matter of this Agreement or any application or registration therefore, whether during or after the Term of this Agreement.
2.5 Company hereby agrees to indemnify and hold harmless Linc against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from use of Services by (or that arises in connection with content used or provided by) Company or Customers. Although Linc has no obligation to monitor the content provided by Company or Customers or Company’s or Customers’ use of the Services, Linc may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of this Agreement or any law or regulation or right of any third party.
2.6 Company will be responsible for maintaining the security of Company account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Company account with or without Company’s knowledge or consent.
2.8 Company acknowledges and agrees that the Services operate on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Linc is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Company is solely responsible for procuring any and all rights necessary for it and Customers to access Third Party Services and for complying with any applicable terms or conditions thereof. Linc does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Company and a third party provider is solely between Company and such third party provider and is governed by such third party’s terms and conditions.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Linc may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services’ performance.
3.3 Company acknowledges that Linc does not wish to receive any Proprietary Information from Company that is not necessary for Linc to perform its obligations under this Agreement.
3.4 Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors and/or their agents and representatives.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Subject to the terms and conditions of this Agreement, Linc hereby grants Company a revocable, non-exclusive, non-transferable, and non-sublicensable license during the Term of this Agreement to use the application programming interface, widgets, and/or URLs, and related information and documentation Linc may provide (collectively, “Widgets”) to integrate access to the Services into Company’s customer transactional email and user account system in accordance with this Agreement and any further instructions specified by Linc from time to time (such integrated services may be referred to as “Integrated Services”) solely for the purpose of distributing and making available the Services solely as part of such Integrated Services and solely to Customers located in and taking delivery in the Territory for use solely in the Territory in accordance with this Agreement.
4.2 Except as expressly set forth herein, Linc alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services, the Widgets, or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Company or any third party relating to the Service, the Widgets, and/or the Software, which are hereby assigned to Linc. Company will not, and will not permit any third party to, copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Company any rights of ownership in or related to the Services, Widgets, or Software, or any intellectual property rights.
4.3 Linc will obtain and process certain data provided by or on behalf of Company and/or Customers, including but not limited to shopping, transaction, shipping, customer, and other related content/data (“Data”) only to perform its obligations under this Agreement. Company and Customers shall and hereby do represent and warrant that they do have and retain all right, title and interest (including, without limitation, sole ownership of) in and to all Data provided to Linc and all rights with respect to that Data. Company further represents and warrants that neither the Data nor the use thereof by Linc will infringe, misappropriate or violate any rights of or agreements with a third party or any laws or regulations. Company is hereby granted a non-exclusive, nontransferable, non-sublicenseable, revocable, and limited right to use the resulting data generated via the Services and provided by Linc to Company for the sole purpose of performing its obligations or exercising its rights as provided hereunder. If Linc receives any notice or claim that any Data, or activities hereunder with respect to any Data, may infringe or violate rights of a third party or any laws or regulations (a “Claim”), Linc may, but is not required to, suspend or terminate the Services and Company will indemnify Linc from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.
4.4 Linc shall indemnify Company from liability to unaffiliated third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Linc is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Linc, (ii) resulting in whole or in part in accordance from Company specifications, (iii) that are modified after delivery by Linc, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Company or Customers continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Company’s or Customers’ use of the Services is not strictly in accordance with this Agreement and all related documentation.
5. PAYMENT OF FEES
5.1 Company will pay Linc the applicable fees (including the Annual Fee and Recommendation Commission) in accordance with the Cover Sheet (the “Fees”). If Company’s or Customers’ use of the Services exceeds the Service Capacity set forth on the Cover Sheet, Company will be notified of and invoiced for the excess usage over the Service Capacity, at the rate set forth on the Cover Sheet or if the rate is not specified in the Cover Sheet, Linc will provide the rate in the applicable notice, and Company agrees to pay the additional fees without any right of set-off or deduction so long as the additional fees are reasonable. To the extent applicable, Company will pay Linc for additional services, such as integration fees or other consulting fees. All payments will be made in accordance with the Payment Schedule and the Method of Payment. If not otherwise specified, payments will be due within thirty (30) days of invoice.
5.2 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Company agrees to pay such taxes (excluding US taxes based on Linc’s net income) unless Company has provided Linc with a valid exemption certificate. In the case of any withholding requirements, Company will pay any required withholding itself and will not reduce the amount paid to Company on account thereof. Notwithstanding anything to the contrary, in addition to any other remedy available, Linc may restrict or suspend Company’s access to the Services without warning if payment is not made when due.
6.1 Subject to earlier termination as provided below, this Service Agreement is for the Service Term as specified in the Cover Sheet.
6.2 In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the Service Term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.
6.3 All sections of this Service Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
7. CLIENT SOFTWARE SECURITY
Linc represents and warrants that it will not knowingly include, in any Linc software released to the public and provided to Company hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally designed to disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, Linc fails to comply with the warranty in this Section, Company may promptly notify Linc in writing of any such noncompliance. Linc will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Company with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Company may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
8. WARRANTY DISCLAIMER
THE SERVICES, WIDGETS, SOFTWARE, AND LINC’S PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. LINC (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF EITHER PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID OR PAYABLE TO Linc HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATION IN THIS SECTION 9 SHALL NOT LIMIT EITHER PARTY’S INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS, OR LIABILITIES ARISING OUT OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
10. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Company may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Company acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States 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. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Linc are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Company except with Linc’s prior written consent. Linc may transfer and assign any of its rights and obligations under this Agreement with written notice to Company. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Company does not have any authority of any kind to bind Linc in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Linc will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts located in, respectively, San Francisco County, California, or the Northern District of California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction. Company agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Linc. Linc is permitted to disclose that Company is one of its customers to any third-party at its sole discretion.