THESE TERMS OF SERVICE (“AGREEMENT”) DESCRIBE THE TERMS AND CONDITIONS ON WHICH GORGIAS INC.
(“GORGIAS”) PROVIDES ITS CUSTOMERS (THE “CUSTOMER” or “YOU”) ACCESS TO GORGIAS’ PROPRIETARY
AI ENABLED EMAIL RESPONSE SYSTEMS AND RELATED INTERFACES (THE “GORGIAS SERVICE”) .
BY INDICATING ACCEPTANCE OF THIS AGREEMENT OR BY OTHERWISE USING THE SERVICE, YOU ARE ENTERING INTO A LEGALLY BINDING AGREEMENT WITH GORGIAS. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT COMPLETE THE ORDER PROCESS AND DO NOT USE THE SERVICE.
IF CUSTOMER OR THE THIRD-PARTY ON BEHALF OF WHOM CUSTOMER IS ACTING (ALSO, A “CUSTOMER”) AND STREAM HAVE ALREADY ENTERED A SEPARATE AGREEMENT GOVERNING PROVISION OF GORGIAS’S SERVICES THAT HAS BEEN SIGNED ON BEHALF OF BOTH STREAM AND CUSTOMER, THEN THAT OTHER AGREEMENT SHALL APPLY IN PLACE OF THE TERMS HEREIN, NOTWITHSTANDING ANY CHECKBOX OR ELECTRONIC ACCEPTANCE REQUIRED IN ORDER TO USE THE SERVICE.
1. Provision of the Gorgias Service
1.1 Provision Generally
1.2 Grant of Rights
Subject to the terms and conditions of this Agreement, Gorgias hereby grants to Customer a limited, non-exclusive, non-transferable right to access and use the Gorgias Service, solely for Customer’s business purposes during the Term. All rights not expressly granted to Customer are reserved by Gorgias and its licensors. There are no implied rights.
1.3 Eligibility Requirements
By entering into this Agreement, Customer represents and warrants that Customer meets the following minimum requirements (“Eligibility Requirements”): (a) Customer is at least 18 years old and has the legal capacity to be bound by this Agreement; (b) Customer has the necessary rights and authority to enter into and perform the obligations required of Customer under this Agreement including entering into this Agreement on behalf of and binding a third-party, if so applicable; (c) All information which Customer provides, including but not limited to information provided during registration, information about Customer and any third -party business, and all relevant payment information, is within Customer’s right to use, and is and will remain accurate, complete and current; (d) Customer is in compliance with all applicable laws, including but not limited to all applicable laws and regulations pertaining to data privacy; (e) To the best of Customer’s knowledge, none of the Customer Data (as defined herein) will contain any unlawful, defamatory, offensive, libelous, harassing, abusive, fraudulent, pornographic or obscene content or material; and (f) Customer will provide Gorgias with any information, records, or materials that we request to verify Customer’s compliance with the eligibility requirements set forth above and the terms and conditions of this Agreement.
Customer shall not (and shall not allow any third party to): (a) use the Gorgias Service to develop or market any product, software or service that is functionally similar to or derivative of the Gorgias Service, or for any other purpose not expressly permitted herein; (b) permit any third party to access or use the Gorgias Service except as envisioned by the Gorgias Service in its normal operation or as specified in any documentation or instructions provided by Gorgias with regard to the use of the Service (the “Documentation”); (c) sell, distribute, rent, lease, service bureau, post, link, disclose or provide access to the Gorgias Service, directly or indirectly, to any third party; (d) alter, modify, debug, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any software (including source code) associated with the Gorgias Service; or (e) use any unauthorized robot, spider, scraper or other automated means to access the Gorgias Service, or engage in any scraping, data-mining, harvesting, data aggregating or indexing of the Gorgias Service. Customer shall keep all passwords and API keys provided to it safe and secure, and shall be responsible for all use of the Gorgias Service using passwords or API keys issued to Customer. Customer shall notify Gorgias immediately of any actual or suspected unauthorized use of its passwords or API keys for the Gorgias Service. Without limiting any of its other rights or remedies, Gorgias reserves the right to suspend access to the Gorgias Service if Gorgias reasonably believes that Customer has materially violated the restrictions and obligations in this Agreement (in which case, it shall provide Customer prompt written notice of such suspension).
1.5 Customer Cooperation
Customer shall: (a) reasonably cooperate with Gorgias in all matters relating to the Gorgias Service; (b) respond promptly to any Gorgias request to provide information, approvals, authorizations or decisions that are reasonably necessary for Gorgias to provide the Gorgias Service in accordance with this Agreement; and (c) provide such Customer materials or information as Gorgias may reasonably request to provide the Gorgias Service and ensure that such materials or information are complete and accurate in all material respects.
2. Gorgias Technology
In connection with providing the Gorgias Service, Gorgias and its licensors shall operate and support the hosted environment used by Gorgias to provide the Gorgias Service, including the Gorgias Technology (as defined below), the server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs, documentation and all other technology or information so used by Gorgias. As used herein, “Gorgias Technology” means all of Gorgias’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Gorgias in providing the Gorgias Service.
2.2 Grant of Rights
Customer acknowledges and agrees that as between Gorgias and Customer, all right, title and interest in and to the Gorgias Service (including the data, information, text, images, designs, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information other than Customer Data) and other content on or made available through the Gorgias Service, other than Customer Data), the Gorgias Technology and all improvements and derivatives of the foregoing (including all intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain owned by Gorgias or its licensors, and this Agreement in no way conveys any right, title or interest in the Gorgias Service or the Gorgias Technology other than a limited right to use the Gorgias Service in accordance with this Agreement. Gorgias acknowledges and agrees that as between Customer and Gorgias, all right, title and interest in and to the Customer Data are and shall remain owned by Customer or its licensors, and this Agreement in no way conveys any right, title or interest in the Customer Data other than a limited right to use the Customer Data in accordance with the terms and conditions herein. No right or license is granted hereunder to Customer under any trademarks, service marks, trade names or logos. Customer shall not remove any Gorgias trademark, service mark or logo, or any proprietary notices or labels (including any copyright or trademark notices) from the Gorgias Service. Gorgias acknowledges and agrees that as between Customer and Gorgias, all right, title and interest in and to the Customer Data are and shall remain owned by Customer or its licensors, and this Agreement in no way conveys any right, title or interest in the Customer Data other than a limited right to use the Customer Data in accordance with the terms and conditions set forth and agreed to herein.
4. Fees; Payments; Taxes
In consideration of the provision of the Gorgias Services, Customer shall pay Gorgias the monthly fees pursuant to the fee schedule and Gorgias subscription plan chosen by Customer on https://gorgias.io and make such payment in accordance with the instructions and schedule provided for by Gorgias.
Gorgias reserves the right to increase its fees following the Initial Term or Renewal term (as defined below) for any following Renewal Termon 30 days’ prior notice to Customer. If Customer objects to the fee increase, Customer may terminate the Gorgias Service by written notice following the Initial Term or applicable Renewal Term. If Customer does not exercise its right of termination during such period, Customer will be deemed to have accepted the increased fees.
All amounts due hereunder are exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with this Agreement, the Gorgias Service, or Customer’s access to the Gorgias Service. Customer shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on Gorgias’s income), which may be invoiced by Gorgias from time-to-time.
4.4 Late Payments
Customer shall pay interest on all late payments at the lesser of (a) 1.5% per month or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Gorgias for all costs and expenses, including attorneys’ fees, incurred in collecting any unpaid amounts owed by Customer hereunder.
5. Term; Termination
5.1 Term, Termination and Automatic Renewal
The term of this Agreement shall commence upon Customer’s subscription to the Gorgias Service and, unless earlier terminated as set forth herein, shall continue for the period of the initial subscription selected by the Customer (the “Initial Term”). The Customer may terminate this Agreement upon 30 day’s written notice to Gorgias. Gorgias reserves the right to terminate this Agreement at any time upon written notice to the Customer and shall repay to Customer any pro-rated portion of the fees paid to it in connection with the Gorgias Services that the Customer would have received but for Gorgias’s cancellation. In the event that the Agreement is not terminated as set forth herein it shall continue to automatically renew for the length of the Initial Term (a “Renewal Term”). The Initial Term and any Renewal Term is referred to herein as a “Subscription Term”, and the Subscription Terms are referred to collectively as the “Term.”
5.2 Termination for Breach
Either Party may terminate this Agreement by written notice thereof to the other Party, if the other Party materially breaches this Agreement and does not cure such breach within 30 days after written notice thereof.
5.3 Effects of Termination; Survival
Upon any termination of this Agreement: (a) all rights granted to Customer hereunder shall terminate and Gorgias shall no longer provide access to the Gorgias Service to Customer, and (b) Customer shall cease using the Gorgias Service. Any obligations that have accrued prior to termination shall survive termination of this Agreement. In addition, the following Sections, as well as any other provisions herein which by their nature should survive, shall survive termination of this Agreement: Sections 3 through 11.
6. Customer Data
6.1 Data Generally
All data and information that the Customer inputs into the Gorgias Service, is provided by integrations to the Customer’s systems or provided or obtained by the Customer’s clients in connection with the Customer’s use of the Gorgias Service (each of the above, the “Customer Data”) is stored in a private and secure fashion, and will not be used by Gorgias except as permitted herein. Customer hereby grants to Gorgias a limited, non-exclusive, non-transferable, royalty-free right to use, reproduce, manipulate, and display the Customer Data solely in connection with providing the Gorgias Service to Customer, and improving, developing and marketing the Gorgias Service (provided that Gorgias may only use anonymized and aggregated Customer Data to improve, develop and market the Gorgias Services). Gorgias may analyze Customer Data, and data of other customers, to create aggregated and anonymized statistics or data that do not identify Customer or any individual, household, user, browser, or device and Gorgias may during and after the Term use and disclose such statistics or data in its discretion. Except as specified otherwise in this Agreement, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Data. The content of Customer Data shall be Customer’s sole responsibility. Gorgias shall operate the Gorgias Service in a manner that provides reasonable information security for Customer Data, using commercially reasonable data backup, security, and recovery protections.
6.2 Additional Customer Responsibilities
Customer is solely responsible for all Customer Data. Gorgias does not guarantee the accuracy, integrity or quality of Customer Data. Customer shall not: (a) upload or otherwise make available to Gorgias any Customer Data that is unlawful or that violates the rights of any third parties; (b) upload or otherwise make available to Gorgias any Customer Data that Customer does not have a right to transmit due to any law, rule, regulation or other obligation; (c) use, upload or otherwise transmit any Customer Data that infringes any intellectual property or other proprietary rights of any third party; (d) upload or otherwise make available to Gorgias any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, limit the functionality of any computer software or hardware or telecommunications equipment; (e) interfere with or disrupt the Gorgias Service or servers or networks connected to the Gorgias Service; (f) upload or otherwise make available to Gorgias any Customer Data that constitutes protected health information subject to the Health Insurance Portability and Accountability Act or any regulation, rule or standards issued thereunder, or constitutes similarly protected information under any applicable state, rule or regulation(g) violate any applicable law, rule or regulation, including those regarding the export of technical data, or (h) use the Gorgias Service in a manner not prescribed in the Documentation.
7. Representations and Warranties; Disclaimer
7.1 General Representations and Warranties
Each Party hereby represents and warrants to the other Party that: (a) if such Party is a corporation, company or other entity (as applicable), such entity is duly organized, validly existing and in good standing in its jurisdiction of organization; (b) such Party’s execution, delivery and performance of this Agreement have been duly and validly authorized by all necessary organizational action on its part or, if such Party is an individual, such Party has legal capacity to enter into this Agreement; (c) the provisions set forth in this Agreement constitute legal, valid, and binding obligations of such Party enforceable against such Party in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting creditors’ rights generally; and (d) its execution, delivery and performance of this Agreement does not and will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under, any agreement or other obligation to which such Party is subject.
7.2 Gorgias Limited Warranty
Gorgias further represents and warrants that (a) it will provide the Gorgias Service in a competent and workmanlike manner; and (b) it owns or otherwise has sufficient rights (including without limitation all intellectual property rights thereto) to grant the licenses to Customer under this Agreement. Gorgias does not warrant that it will be able to correct all reported defects or that use of the Gorgias Service will be uninterrupted or error free. Gorgias makes no warranty regarding features or services provided by any third parties. Gorgias retains the right to modify its services and the Gorgias Technology in its sole discretion, provided that Gorgias reasonably believes that any such changes and modifications will materially impair Customer’s use of the Gorgias Service, it shall provide Customer with notice before making any such change or modification. Customer’s sole remedy for Gorgias’s breach of the warranty in this paragraph shall be that Gorgias shall remedy the applicable error, or if Gorgias is unable to do so in a timely manner, refund to Customer actual damages up to a limit of the fees paid for the Gorgias Service for the Subscription Term during which the breach of warranty occurred.
EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 7.1-7.2 ABOVE, GORGIAS MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICE (IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE), INCLUDING ANY WARRANTY (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, (B) THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, (C) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, OR (D) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICE.
7.4 Additional Disclaimer
CUSTOMER ACKNOWLEDGES THAT THE SERVICE IS HOSTED BY A THIRD PARTY HOSTING PROVIDER (THE “HOSTING CONTRACTOR”) AND USES THIRD PARTY SERVER HARDWARE, DISK STORAGE, FIREWALL PROTECTION, SERVER OPERATING SYSTEMS, MANAGEMENT PROGRAMS, WEB SERVER PROGRAMS FOR DELIVERY OF THE SERVICES (THE “HOSTING CONTRACTOR SERVICES”). ADDITIONALLY, GORGIAS USES THIRD PARTIES TO HELP RECEIVE PAYMENTS (“PAYMENT PROCESSOR”). GORGIAS MAY CHANGE ITS HOSTING CONTRACTOR AND PAYMENT PROCESSOR AT ANY TIME. YOUR USE OF THE SERVICE IS SUBJECT TO ANY RESTRICTIONS IMPOSED BY THE HOSTING CONTRACTOR AND THE PAYMENT PROCESSOR, AS APPLICABLE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, GORGIAS SHALL NOT BE LIABLE FOR ANY PROBLEMS, FAILURES, DEFECTS OR ERRORS WITH THE SERVICE TO THE EXTENT CAUSED BY THE HOSTING CONTRACTOR OR PAYMENT PROCESSOR. CUSTOMER ACKNOWLEDGES THAT THE FEES PAYABLE FOR THE SERVICE REFLECT THE FACT THAT GORGIAS IS NOT RESPONSIBLE FOR THE ACTS AND OMISSIONS OF THE HOSTING CONTRACTOR OR PAYMENT PROCESSOR.
8. Limitations of Liability
8.1 Damages Cap
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, GORGIAS’ TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO GORGIAS UNDER THIS AGREEMENT WITH RESPECT TO THE THEN-CURRENT SUBSCRIPTION TERM.
8.2 Disclaimer of Indirect Damages
EXCEPT FOR (A) CUSTOMER’S OBLIGATION TO PAY ALL AMOUNTS DUE HEREUNDER; (B) ITS INDEMNIFICATION OBLIGATIONS; AND (C) ITS BREACH OF ANY INTELLECTUAL PROPERTY OR CONFIDENTIALITY OBLIGATIONS OR RESTRICTIONS HEREIN (INCLUDING ANY LIMITATIONS OR RESTRICTIONS ON USE OF THE SERVICE), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF DATA, PROFITS OR REVENUE) ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
8.3 Basis of the Bargain
THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 ARE A FUNDAMENTAL BASIS OF THE BARGAIN, THAT GORGIAS HAS SET ITS FEES IN RELIANCE ON THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THEY SHALL APPLY NOTWITHSTANDING THAT ANY REMEDY SHALL FAIL ITS ESSENTIAL PURPOSE.
9.1 Gorgias Indemnification
Gorgias shall defend, indemnify and hold harmless Customer and its directors, officers, and employees (“Customer Indemnified Parties”) from and against any third party claims, actions, proceedings, demands, lawsuits, damages, liabilities and expenses (including reasonable attorneys’ fees and court costs) (collectively, “Claims”) to the extent the Gorgias Service infringes, misappropriates or otherwise violates (collectively, “Infringes”) any third party intellectual property or proprietary right (excluding patents).
9.2 Customer Indemnification
Customer shall defend, indemnify and hold harmless Gorgias and its directors, officers, employees, agents and providers (“Gorgias Indemnified Parties”) from and against any Claims based on the Customer Data to the extent that such Claim does not arise out Customer’s use of the Gorgias Service or arises out of Customer’s use of the Gorgias Service in a manner that violates this Agreement or the Documentation.
9.3 Indemnification Process
As conditions of the indemnification obligations in Sections 9.1-9.2 above: (a) the applicable Customer Indemnified Party or Gorgias Indemnified Party (the “Indemnitee”) will provide the indemnifying Party (the “Indemnitor”) with prompt written notice of any Claim for which indemnification is sought (provided that failure to so notify will not remove the Indemnitor’s indemnification obligations except to the extent it is prejudiced thereby), (b) the Indemnitee will permit the Indemnitor to control the defense and settlement of such Claim, and (c) the Indemnitee will reasonably cooperate with the Indemnitor in connection with the Indemnitor’s evaluation, defense and settlement of such Claim. In defending any Claim, the Indemnitor shall use counsel reasonably satisfactory to the other Party. The Indemnitor shall not settle or compromise any such Claim or consent to the entry of any judgment without the prior written consent of the other Party (not unreasonably withheld).
Gorgias’s obligations in Section 9.1 above shall not apply to any Claim to the extent arising from or relating to (a) misuse of the Gorgias Service not strictly in accordance with the Documentation, Gorgias’s instructions, and this Agreement; (b) any modification, alteration or conversion of the Gorgias Service not created or approved in writing by Gorgias; (c) any combination of the Gorgias Service with any computer, hardware, software or service not provided by Gorgias; (d) Gorgias’s compliance with specifications or other requirements of Customer; or (e) any third party data or Customer Data. If the Gorgias Service is or may be subject to a Claim of Infringement described in Section 9.1 above, Gorgias may, at its cost and sole discretion: (i) obtain the right for Customer to continue using the Gorgias Service as contemplated herein; (ii) replace or modify the Gorgias Service so that it becomes non-Infringing without substantially compromising its principal functions; or (iii) to the extent the foregoing are not commercially reasonable, terminate this Agreement and return to Customer any pre-paid fees for the Gorgias Service associated with the then-current Subscription Term. Gorgias’ obligations in this Section 9 shall be Gorgias’s sole obligations, and Customer’s sole remedies, in the event of any Infringement of intellectual property or proprietary rights by or related to the Gorgias Service.
“Confidential Information” means information that is disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) hereunder during the Term that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, including without limitation information (tangible or intangible) regarding a Party’s technology, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information. “Confidential Information” shall not include any information that (a) is or becomes generally known to the public through no fault of, or breach of this Agreement by, the Receiving Party; (b) is rightfully in the Receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (d) is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure. In addition, (i) the terms and conditions of this Agreement shall be deemed to be Confidential Information of both Parties; (ii) the Gorgias Service and Gorgias Technology shall be deemed Confidential Information of Gorgias, regardless of whether or not they are labeled or identified, or would reasonably be considered confidential; and (iii) Customer Data shall be deemed Confidential Information of Customer.
10.2 General Obligations
Each Party agrees that it will during the Term and thereafter (a) not disclose the other Party’s Confidential Information to any third party (other than as permitted in the last sentence of this paragraph); (b) use the other Party’s Confidential Information only to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement; (c) disclose the other Party’s Confidential Information only to those of its employees and independent contractors who reasonably need to know such information for purposes of this Agreement and who are bound by confidentiality obligations offering substantially similar protection to those in this Section 10; and (d) protect all Confidential Information of the other Party from unauthorized use, access, or disclosure in the same manner as it protects its own confidential information of a similar nature, and in no event with less than reasonable care. Notwithstanding the above, this paragraph shall not prohibit: (i) a Party from disclosing Confidential Information of the other Party to the extent required by applicable law, rule or regulation (including a court order or other government order); provided that such Party provides the other Party prior written notice of such disclosure, to the extent practicable, and reasonably cooperates with efforts of the other Party to seek confidential treatment thereof, to the extent such cooperation is requested by the other Party; or (ii) a Party from disclosing the terms and conditions of this Agreement to its attorneys and financial advisors, or current or potential lenders, other sources of financing, investors or acquirors; provided that such third parties are bound by confidentiality obligations offering substantially similar protection to those in this Section 10 (provided further that such third parties are only permitted to use such information for the purpose of advising, lending or providing financing to, or investing in or acquiring, such Party, as applicable).
10.3 Return or Destruction
Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party, or destroy or erase, the Disclosing Party’s Confidential Information in tangible form, upon the termination of this Agreement; provided that (a) Receiving Party may retain a copy of Disclosing Party’s Confidential Information solely for the purposes of tracking Receiving Party’s rights and obligations hereunder with respect thereto, (b) Receiving Party may retain copies of Disclosing Party’s Confidential Information solely to the extent required by law or by applicable professional standards which require such Party to retain copies of its working papers, and (c) Receiving Party may retain Disclosing Party’s Confidential Information solely to the extent reasonably necessary for Receiving Party to exercise rights or perform obligations under this Agreement that survive such termination.
Notwithstanding the above or anything to the contrary herein, to the extent that Customer at any time provides Gorgias with any feedback or suggestions regarding the Gorgias Service, including potential improvements or changes thereto (collectively, “Feedback”), the Feedback shall not be considered Confidential Information of Customer, and Gorgias may use, disclose and exploit the Feedback in any manner it chooses. All Feedback provided by Customer is provided “AS IS” and without warranty or representation of any kind.
11.1 Compliance with Laws
Each Party shall comply with all laws, rules, regulations and ordinances applicable to its activities hereunder.
Customer may not assign this Agreement, or assign any of its rights or delegate any of its obligations under this Agreement, without the prior written consent of Gorgias. Any purported assignment or delegation in violation of this paragraph is null and void. This Agreement will bind and inure to the benefit of each Party’s successor and permitted assigns. Notwithstanding the foregoing, Gorgias may assign this Agreement to any acquirer of all or substantially all of its assets as they relate to this Agreement.
11.3 Entire Agreement; Amendment
This Agreement along with the subscription arrangement chosen by the Customer at https://gorgias.io contains the complete understanding and agreement of the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto.
11.4 Entire Agreement; Amendment
Gorgias may give any notices issued in connection with this Agreement by email to Customer at the email address given by Customer when creating its account, and such notices shall be effective upon confirmation of transmission to Customer.
11.5 Force Majeure
Gorgias shall not be liable or responsible to Customer, nor be considered to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any provision of this Agreement to the extent such failure or delay is caused by or results from any act, circumstance or other cause beyond the reasonable control of Gorgias, including acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable technology or components, telecommunication breakdown, or power outage.
Gorgias shall have the right to use Customer’s name and logo on client lists published on Gorgias’s website and in marketing materials provided that such use is previewed and pre-approved by Customer. Gorgias may announce the relationship hereunder in a press release provided that Gorgias obtains Customer’s prior approval of the wording of the release (not unreasonably withheld).
11.7 Choice of Law
This Agreement is and will be governed by and construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of Delaware, without giving effect to any conflicts of laws provision thereof or of any other jurisdiction that would produce a contrary result.
11.8 Disputes; Arbitration
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between Customer and Gorgias or its employees, agents, successors, or assigns, will exclusively be settled through binding and confidential arbitration. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”). For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. Customer and Gorgias agree as follows: (a) ANY CLAIMS BROUGHT BY A PARTY MUST BE BROUGHT IN SUCH PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (c) Gorgias also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (d) the arbitrator will honor claims of privilege and privacy recognized at law; (e) the arbitration will be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (f) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (g) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law. Notwithstanding the foregoing (i) either Customer or Gorgias may bring an individual action in small claims court to the extent eligible, and (ii) either Party may seek emergency equitable relief before the state or federal courts located in New York in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New York for such purposes. A request for interim measures will not be deemed a waiver of the right to arbitrate.
11.9 Relationship of the Parties
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise or employment relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
No waiver by either Party of any of the provision of this Agreement is effective unless explicitly set forth in writing and signed by such Party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction.
11.12 Headings; Interpretation
Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. Unless the intent is expressly otherwise in specific instances, use of the words “include,” “includes,” or “including” in this Agreement shall not be limiting and “or” shall not be exclusive.