Narvar Terms of Service
Last Updated: October 24, 2017
These Terms of Service (together with any Service Orders, this “Agreement”) governs the use of all technology and services that a customer “Company” accesses and/or receives from Narvar, Inc. (“Narvar”). Company and Narvar are referred to individually as a “Party” and collectively as the “Parties.”
NARVAR RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO ALTER OR UPDATE THESE TERMS OF SERVICE, THE PLATFORM AND/OR THE SERVICES AT ANY TIME WITH OR WITHOUT NOTICE INCLUDING, WITHOUT LIMITATION, FEATURES, SPECIFICATIONS, CAPABILITIES, FUNCTIONS, LICENSING TERMS, RELEASE DATES, GENERAL AVAILABILITY OR OTHER CHARACTERISTICS THAT DO NOT AFFECT THE PLATFORM AND THE SERVICES AS THEY ARE CURRENTLY BEING PROVIDED TO COMPANY. HOWEVER, CHANGES MADE TO THESE TERMS OF SERVICE WILL NOT APPLY TO COMPANY TO THE EXTENT THAT (I) THE CHANGES CONCERN MATTERS WHICH ARE THE SUBJECT OF AN ACTUAL DISPUTE BETWEEN COMPANY AND NARVAR AS OF THE DATE THE CHANGES TAKE EFFECT AND (II) NARVAR HAS ACTUAL NOTICE OF THE DISPUTE AS OF THE DATE THE CHANGES TAKE EFFECT. BY CONTINUING TO USE THE PLATFORM AND/OR THE SERVICES AFTER ANY SUCH CHANGES, COMPANY AGREES TO BE BOUND BY THE UPDATED TERMS OF SERVICE.
“Affiliate” means any company the majority of whose voting shares is now or hereafter, owned or controlled, directly or indirectly, by a Party, or by an entity which owns or controls a Party, as applicable.
“Confidential Information” means information that one party (or an Affiliate) discloses to the other party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes publicly available through no fault of the recipient.
“Company Data” means any information or data which Company inputs into the Platform or provides to Narvar for inputting into the Platform.
“Consumer” means an individual that Company invites to access the Platform by providing the individual with a link to the Platform.
“Documentation” means the product documentation provided by Narvar under this Agreement.
“Marks” means a Party’s corporate or trade name, trademarks, service marks, logos, domain names or other identification of such Party.
“Platform” means Narvar’s proprietary system through which retailers may provide consumers with an enhanced post-purchase experience, and all changes, corrections, bug fixes, enhancements, updates and other modifications thereto, whether made by or on behalf of Narvar, Company, or any third party.
2.1 From time to time, the Parties may execute one or more service orders, substantially in the form attached to this Agreement, that describe the services and the deliverables Narvar will provide to Company (each a “Service Order”). Each Service Order will expressly refer to this Agreement, will form a part of this Agreement, and will be subject to the terms and conditions contained herein. A Service Order may be amended only by a written agreement executed by both Parties.
2.2 Narvar will perform the services and provide the deliverables described in each Service Order in accordance with the terms and conditions set forth in each Service Order and this Agreement. Should any conflict arise between the terms of the Service Order and this Agreement, the Service Order will control to the extent of the conflict.
2.3 Narvar will host, operate and maintain the Platform on servers operated and maintained by or at the direction of Narvar. Narvar will modify Company’s interface to the Platform to align with Company’s branding and Marks, provided that Narvar agrees to comply with Company’s Marks usage policies and ongoing instructions and supervision with respect to Company’s Marks.
2.4 Company will cooperate in providing accurate set-up and configuration Data, conforming with Narvar instructions as provided in the Documentation. Company will be responsible for obtaining and maintaining at Company’s expense all the necessary computer hardware, software, modems, connections to the Internet and other items required for Company to access the Platform.
3.1 License to the Platform. Subject to the terms and conditions of this Agreement, Narvar grants to Company a limited, non-exclusive, non-transferable, worldwide license, without the right to sublicense, to use and permit Consumers to use the Platform solely for tracking, returns, and delivery of goods of Company and its Affiliates for the Term. Narvar reserves all rights to the Platform not otherwise expressly granted in this Section 3.
3.2 Platform License Restrictions. Company will not, and will not permit any third party to: (i) use the Platform except to the extent permitted in Section 3.1; (ii) modify or create any derivative work of any part of the Platform; or (iii) market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan the Platform.
3.3 Limited Trademark License. Company grants Narvar a royalty-free, non-exclusive, non-transferable, non-sublicensable, limited term license to use Company’s Marks solely for the purpose of modifying the appearance of Company’s interface to the Platform to incorporate Company’s branding and only as specifically authorized by, and subject to any restrictions stated in, this Agreement. The license in this paragraph is limited to the duration of this Agreement. The provisions of this paragraph do not convey any title or ownership interest in Company’s Marks to Narvar.
4.1 Payment. Company will pay Narvar the fees set forth in the Service Order (“Fees”). The Fees will be paid in advance on the date specified in the Service Order and on the first day of any Renewal Term. For the features and scope set forth in Company’s Service Order, Subscription Fees will not increase by more than 7% with each new Renewal Term. All Fees are non-refundable except as expressly provided in this Agreement. All undisputed amounts payable to Narvar under this Agreement will be due as specified in the applicable Service Order or, if not specified in the applicable Service Order, within thirty (30) days from receipt of an invoice. Overdue payments will be subject to interest at the rate of 1.5% per month, or the maximum allowable under applicable law, whichever is less.
4.2 Taxes. Company will, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on Narvar’s net income. Company agrees to indemnify, defend, and hold Narvar, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Company’s failure to report or pay any such taxes, duties or assessments.
As between Company and Narvar, Company will retain all ownership, right, and title (including all intellectual property rights) in and to Company Data and Company’s Marks. Company grants Narvar a limited, worldwide, non-transferable, non-exclusive, non-sublicensable, royalty-free license during the Term to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and make derivative works of the Company Data solely in order to enable Narvar to make the Platform available for Company’s use pursuant to this Agreement. Notwithstanding anything to the contrary, Narvar may also aggregate and anonymize data on the Platform and use and retain that data for product improvements and aggregated platform metrics.
Ownership of Platform
As between Company and Narvar, Narvar will own and retain all right, title and interest in and to the Platform, any changes, corrections, bug fixes, enhancements, customizations, updates and other modifications thereto, and all intellectual property rights therein, and as between the Parties all such rights will vest in and be assigned to Narvar including any modifications, derivations, enhancements, compilations or changes to or from any of the foregoing by or on behalf of Company in relation to Company’s use of the Platform. Nothing in this Agreement will confer on Company any right of ownership or interest in the Platform, or any intellectual property rights therein.
7.1 Each Party warrants that: (a) it has full power and authority to enter into this Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Services (including all applicable privacy laws and antibribery laws).
7.2 Narvar warrants to Company that during the Term, the Platform will operate substantially in accordance with the terms of the Documentation. The warranty in this paragraph will not apply to performance issues caused by (i) factors outside of Narvar’s reasonable control; (ii) any improper actions or inactions of Company or any third parties under Company’s control; (iii) Company Data; (iv) Company’s operating environment or equipment; or (v) third party software requested by Company to be integrated with the Platform.
Each Service Order will have an initial term as stated in the Service Order (the “Initial Term”), and will automatically renew for additional periods equal to the Initial Term unless a Party provides written notice of its intention not to renew at least thirty (30) days prior to expiration of the current term (any such renewal term a “Renewal Term,” and together with the Initial Term, the “Term”). These Terms of Service will remain in effect while any Service Orders is in effect. Should the Service Order expire prior to the expiration or termination of these Terms of Service and the Parties do not enter into a new Service Order within 180 days, this Agreement will automatically terminate.
Either party may terminate this Agreement for breach if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within sixty days.
Effect of Termination
If the Agreement is terminated, then: (i) each Party will return or destroy all Confidential Information of the other Party upon request, (ii) Company’s license to use the Platform will immediately cease; (iii) all Fees owed by Company to Narvar will be immediately due; provided if Company terminates for cause, Narvar will refund to Company a pro rata amount of any Fees paid up-front based on the remainder of the Term.
The recipient will not disclose the other Party’s Confidential Information, except to its Affiliates, employees, agents or professional advisors (“Representatives”) who need to know it and who have agreed in writing to keep it confidential. Recipient will be responsible for any breach of this Section by its Representatives. Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable law, judicial or governmental investigation or proceeding; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the other party of such disclosure before disclosing; and (ii) comply with the other party’s reasonable requests regarding its efforts to oppose the disclosure.
Disclaimer; Limitation of Liability
12.1 EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN SECTION 7 (WARRANTIES), NARVAR MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PLATFORM OR ANY OTHER ACCOMPANYING MATERIAL PROVIDED HEREUNDER. NARVAR SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND OF UNINTERRUPTED OR ERROR-FREE SERVICE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND IN ANY SO, THE PLATFORM IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS.
12.2 EXCEPT FOR FRAUD, WILLFUL MISCONDUCT, OR BREACH OF SECTION 11 (CONFIDENTIALITY): (A) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, WARRANTY, OR OTHERWISE; AND (B) NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID OR OWED BY COMPANY TO NARVAR UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.