Terms and Conditions for Realift, LLC

These Merchant Terms and Conditions (these “Merchant Terms”) between Realift LLC (“Realift,” “we,” “us” or “our”) and the person or entity agreeing to these Merchant Terms (“Merchant” or “you”) set out the general terms and conditions for (i) you to access and use the Services and provide Merchant Data to Realift and (ii) Realift to provide the Services to you and use the Merchant Data when performing the Services. If you are accessing and using the Realift website or using its augmented reality solution as a user of Merchant’s website or mobile application (a “Shopper”), the Shopper Terms and Conditions (the “Shopper Terms”) govern your access and use of the Realift website and its augmented reality solution

.BY CLICKING ACCEPT, YOU ARE AGREEING TO THESE MERCHANT TERMS. These Merchant Terms, along with Merchant’s order for the Services (“Order”) take effect when you click the “Accept” button or similar check box presented to you as part of the sign-up process or when you first use the Services, whichever is earlier, and will remain in effect during the relevant subscription term for the Services or until terminated as specified in the Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to commit the entity to the Agreement and the term “Merchant” or “you” will refer to that entity. If you do not have this authority, are under the age of eighteen (18) or if you do not agree with the Agreement, you must not select the “Accept” button or accept these Merchant Terms and you may not access or use the Services.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, ORGANIZATION, OR OTHER LEGAL ENTITY (A “LEGAL ENTITY”) THAT IS NOT A NATURAL PERSON, YOU ACKNOWLEDGE, REPRESENT, AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS AGREEMENT, AND REFERENCES TO “YOU” AND “YOUR” IN THIS AGREEMENT WILL ALSO BE READ TO REFER TO THAT LEGAL ENTITY.  MAKE SURE YOU READ THIS AGREEMENT, THE ORDER AND THE PRIVACY POLICY. IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS TO USE REALIFT.

The Order provides the specific terms and conditions regarding Merchant’s subscription for the Services, pricing methodologies and the length of the term Realift will provide the Services. These Merchant Terms, including the Order and our Privacy Policy (collectively, the “Agreement”) define the terms and conditions under which you’re allowed to use the Services in accordance with the Agreement, which in addition to our Privacy Policy, describe how we’ll treat your account and the data we collect and process about you, your Users, and your Shoppers while you’re a Merchant. If you don’t agree to these Merchant Terms, you must immediately discontinue your use of the Services

.1. Definitions. In addition to the terms otherwise defined in this Agreement or an Order, the following terms have the definitions below:

Merchant Data” means any content, data, information or material that is recorded by, submitted to or stored by, the Services, including, but not limited to, Personal Data processed by Realift on behalf of Merchant.“

Personal Data” means all information relating to a person that identifies such person or could reasonably be used to identify such person, including but not limited to, first and last name, home address, billing address, or other physical address, email address, telephone number, pictographic or video imagery intended to capture the Shopper’ body measurements for predictive body measurement analytics and Sensitive Data, if any.“

Sensitive Data” means (a) social security number, tax file number, passport number, driver’s license number, or similar identifier (or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card); (c) employment, financial, credit, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, information about sexual life or sexual orientation, or criminal record; (e) account passwords; or (f) other information that falls within the definition of “special categories of data” under applicable data protection laws.

Services” means the content, features, functionality, tools, data, software applications, and APIs provided by Realift via getrealift.com and/or such other designated websites as described in the User Guide, that are ordered by Merchant in an Order, as updated from time to time.

Users” means individuals who are authorized by Merchant to use the Services, for whom subscriptions to the Services have been purchased under an Order, and who have been supplied user identifications and passwords by Merchant (or by Realift, at Merchant’s request). Users may include Merchant’s employees, consultants, contractors, agents or third parties with which Merchant transacts business.

User Guide” means the user documentation and any other operating, training, and reference manuals relating to the use of the Services, as supplied by Realift to Merchant.

2. Merchant Account.

2.1 Eligibility.

(a) In order to use the Services, you must:
(i) be at least eighteen (18) years old and able to enter into contracts;
(ii) complete the account registration process;
(iii) agree to these Merchant Terms and the other terms and conditions linked in these Merchant Terms that form part of the Agreement;
(iv) provide true, complete, and up-to-date contact and billing information;
(v) not be based in Cuba, Iran, North Korea, Syria, or any other territory that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist-supporting” country; and 
(vi) not be listed on any U.S. government list of prohibited or restricted persons.

(b) By using the Services, you represent and warrant that you meet all the requirements listed above, and that you won’t use the Services in a way that violates any laws or regulations. Note that by representing and warranting, you are making a legally enforceable promise.

(c) Realift may refuse service, close accounts of any Merchants, and change eligibility requirements at any time.

2.2 Account and Password. You’re responsible for keeping your account name and password confidential. You’re also responsible for any account that you have access to and any activity occurring in such account (other than activity that Realift is directly responsible for that isn’t performed in accordance with your instructions), whether or not you authorized that activity. You’ll immediately notify us of any unauthorized access or use of your accounts. We’re not responsible for any losses due to stolen or hacked passwords. We don’t have access to your current password, and for security reasons, we may only provide you with instructions on how to reset your password. We have the right to update any of your contact information in your account for billing purposes. In addition, you represent and warrant that all information you provide to us when you establish an account, and when you access and use the Services, is and will remain complete and accurate. We may contact you, or any seat, User, or login added to your account, based on the information provided in your account.

2.3 Sharing Account Access. Merchant acknowledges that Realift does not restrict sharing of Merchant accounts and/or passwords and agrees that Merchant will be responsible for any liability to the extent arising from such use or sharing of accounts. Merchant agrees to comply with all applicable local, state, national and foreign laws, treaties, and regulations in connection with Merchant’s and its User’s use of the Services but especially those related to data privacy. Merchant is responsible for any breach of this Agreement by its Users. Merchant agrees that it will promptly notify Realift of any violation or suspected violation of this Agreement or any actual or suspected data or security breach.

3. Services. 

3.1 Access Grant
. Subject to the terms and conditions of this Agreement, Realift grants Merchant, a non-exclusive, non-transferable, non-assignable (except as set out in Section 15 below), worldwide, limited right to access and use the Services (as such Services may be modified, revised and updated in accordance with this Agreement) to enhance the shopping experience by bridging the gap between online and physical retail stores using augmented reality to allow Shoppers to virtually try on apparel based on the Shopper’s body measurements via Merchant’s site(s) and/or native applications, for Merchant’s own internal business purpose.

3.2 Merchant Data
. Merchant will be solely responsible for (a) the accuracy, quality, content, legality and use of Merchant Data, including the means by which Merchant Data is acquired and transferred by Merchant or its Users outside of the Services, (b) obtaining any licenses, permissions or authorizations required for any use of the Merchant Data, and (c) complying with all applicable terms and conditions of any third party website related to Merchant Data obtained from such website or its use in connection with the Services. Merchant grants to Realift the necessary licenses and rights to Merchant Data solely as necessary for Realift to provide the Services to Merchant. Realift may evaluate Merchant’s use of the Services which may include reviewing Merchant Data. Merchant agrees that it will not provide any Sensitive Data to Realift. If Merchant discovers that due to human error or otherwise, Merchant Data does include Sensitive Data, Merchant will promptly notify Realift and provide sufficient information to Realift to locate such Sensitive Data and Realift will delete the Sensitive Data in its control or possession. 

3.3 Privacy. To the extent that the Merchant or its Users provide Personal Data to Realift, Realift’s collection, use, retention, and disclosure of such Personal Data will be governed by the Realift Privacy Policy

3.4 Statistical Information. Realift may compile, use, reproduce, and disclose statistical information related to the Services (“Statistical Information”) for product improvement and other purposes consistent with Realift’s Privacy Policy, provided that Statistical Information is anonymized, de-identified, or is otherwise not reasonably associated or linked to Merchant (or any other identifiable individual person or entity). The right to use Statistical Information will survive termination of this Agreement.

3.5 Security. Realift agrees to use its best efforts in accordance with industry best practices to implement administrative, physical, and technical safeguards necessary to ensure the security, confidentiality, and integrity of Merchant Data.

3.6 Helpdesk Services. Realift will provide customer support services, as available, via email and telephone during its normal business hours (typically 9:00am – 5:00pm Eastern Time, Monday through Friday, excluding holidays).

3.7 Additional Services. Through the Services, Merchant may have the ability to purchase additional Realift products and offerings (collectively, the “Additional Services”). The delivery of and Fees for the Additional Services will be as set forth in the applicable Order(s). Merchant must have an active subscription to the Services in order to access the Additional Services.

3.8 Subcontractors. All Services will be provided to Merchant by Realift according to this Agreement and one or more Orders issued hereunder. Realift may from time to time, in its discretion, engage third parties to perform Services (“Subcontractor”) provided that Realift (a) remains primarily responsible for performance of its obligations under the Agreement; (b) be responsible and liable for the acts and omissions of each Subcontractor in the scope of its performing any Services to the same extent as if such acts or omissions were by Realift or its employees; and (c) be responsible for all fees and expenses payable to any Subcontractor, including, if applicable, withholding of income taxes, and the payment and withholding of payroll taxes, unemployment insurance, workers’ compensation insurance payments, employer health tax, and disability benefits in any such event.

3.9 Maintenance. Merchant acknowledges that certain maintenance activities regarding the Services may be necessary or appropriate, from time to time, including bug fixes, software updates, feature updates, and the addition of new applications and new modules. In most instances, the Realift infrastructure is designed to support updates by the Realift engineering and support teams without the need to interrupt the Services. Where such maintenance activities are not reasonably anticipated to materially impact Merchant’s use of the Services, Realift will have no obligation to provide notice to Merchant regarding such maintenance activities. Realift will use commercially reasonable efforts to perform routine scheduled maintenance during non-business hours. 

3.10 Beta Releases. Realift may, at its sole discretion, make certain services available to the Merchant on a test basis which will be clearly designated as beta, pilot, limited release, non-production or by similar description (“Beta Release”). Notwithstanding anything to the contrary in the Agreement, Merchant acknowledges and agrees that Beta Release is provided on an “as is” and “as available” basis without any liability and indemnity obligations, warranty, support, maintenance, or service level obligations of any kind. Realift does not guarantee that future versions of Beta Release will be released or that if such Beta Release is made generally available, it will be substantially similar to the current Beta Release. Realift may terminate Merchant’s right to use Beta Release at any time for any reason. If Realift publicly releases Beta Release, Merchant may execute, if required, a separate Order to procure the relevant Services (being the publicly available version of the Beta Release) at then-current applicable fees.

4. Confidentiality.

4.1 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has business, technical or financial information relating to Disclosing Party’s business which it has disclosed or may disclose during this Agreement (the “Confidential Information”). Realift’s Confidential Information includes non-public information regarding features, functionality and performance of the Services, as well as all user visible aspects of the Services. Merchant’s Confidential Information includes information provided by Merchant to Realift to enable the provision of the Services as well as all Merchant Data. The terms and conditions of this Agreement, including all pricing and related metrics, are each party’s Confidential Information.

4.2 Non-Use. Receiving Party agrees that it will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of Disclosing Party. Without limiting the foregoing, Receiving Party will take at least those measures that it takes to protect its own most important confidential information. Receiving Party agrees (a) not to use any Confidential Information of Disclosing Party for any purpose except to perform its obligations or exercise its rights under this Agreement and (b) not to disclose any Confidential Information of Receiving Party to third parties or to such party's employees, officers, agents, contractors or other representatives (the “Personnel”), except to those Personnel of Receiving Party who need or have access to such Confidential Information in order to perform works in connection with this Agreement and are subject to confidentiality obligations consistent with those of this Agreement.

4.3 Exceptions. Disclosing Party agrees that these confidentiality obligations will not apply to any information that Receiving Party can document (a) is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; and/or (d) was independently developed without use of any Confidential Information of Disclosing Party. Nothing in this Section 4 precludes either party from disclosing the other party’s Confidential Information as required by law or a legal process, provided that such party (i) gives the other party prior written notice sufficient to permit the other party to contest the disclosure or seek a protective order (or other confidential treatment) and (ii) reasonably cooperates with the other party in limiting the disclosure. In addition, a party may disclose information concerning this Agreement and the transactions contemplated under this Agreement, including providing a copy of this Agreement, to any or all of the following: (i) potential acquirers, merger partners, investors and their personnel, attorneys, auditors and investment bankers, solely in connection with the due diligence review of such party by persons and provided that the disclosures are made in confidence, (ii) the party’s outside accounting firm, or (iii) the party’s outside legal counsel.

4.4 Return of Confidential Information. Promptly following the earlier of (a) the expiration or earlier termination of this Agreement, or (b) the request of Disclosing Party, Receiving Party will return to Disclosing Party, or destroy all Confidential Information that is in written, electronic or other tangible form (including, without limitation, all written or printed documents, notes, memoranda, email, or computer memory, whether or not prepared by Receiving Party) to the extent containing or summarizing any portion of the Confidential Information, including, without limitation, all copies and extracts of such Confidential Information. In addition, upon the request of Disclosing Party, Receiving Party will certify to Disclosing Party in writing Receiving Party’s and its Personnel’s compliance with its obligations pursuant to this Section 5. Notwithstanding anything to the contrary in this Agreement, Realift may retain Confidential Information after termination of this Agreement for such period of time agreed to by Merchant and Realift. To the extent either party is required by law to maintain copies of Confidential Information or records related to disclosure or handling, that party will be under no obligation to destroy such information, however it will remain subject to the obligations in this section.

4.5 Equitable Remedies. Receiving Party acknowledges that in the event of a breach of this Section 4 by Receiving Party, substantial injury could result to Disclosing Party and money damages will not be a sufficient remedy for such breach. In the event that Receiving Party engages in, or threatens to engage in any act which violates any provision of this Agreement, Disclosing Party will be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of this Agreement. Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief.

5. Merchant Obligations. 

5.1 Technical Requirements. In accordance with the requirements set forth in the User Guide, Merchant must have the required equipment, software, and Internet access to be able to use the Services. Acquiring, installing, maintaining, and operating equipment and Internet access is solely the Merchant’s responsibility, except as otherwise expressly provided in an Order. Realift neither represents nor warrants that the Services will be accessible through all versions of tablets, smartphones, or other computing devices, except as expressly set forth on any applicable Order.

5.2 Use Restrictions
.

(a) Except as permitted under this Agreement or as required by law, Merchant will not, and will not permit or encourage anyone else, including its Shopper, to:
(i) license, sublicense, sell, resell, transfer, assign, distribute, use as a service bureau or timeshare, or otherwise commercially exploit or make the Services available to any third party in any way;
(ii) modify, disassemble or make derivative works based upon the Services or otherwise attempt to derive source code or other trade secrets from the Services;
(iii) reverse engineer or access the Services in order to

(a) build a competitive product or service,
(b) build a product using similar ideas, features, functions or graphics of the Services, or (c) copy any ideas, features, functions or graphics of the Services;

(iv) modify, remove or obstruct any proprietary rights statement or notice contained in the Services;
(v) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
(vi) send or store

(a) infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or which violates third party privacy rights; or
(b) material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;

(vii) attempt to gain unauthorized access to the Services or its related systems or networks;
(viii) access the Services if you or your Shopper are a direct competitor of Realift, unless Realift agrees in writing before you access the Services; or
(ix) post any images or any materials in association with or create pornographic, defamatory or obscene images while utilizing the Services.

(b) Realift reserves the right to review information posted by Users to ensure that it complies with this or any other section of this Agreement, and to amend it or delete it, or otherwise control such information in order to bring it into compliance with this Agreement and/or applicable law.

5.3 Suspension for Compliance and Security Concerns. Both parties represent and warrant that they will observe and comply with all applicable laws in connection with their performance under this Agreement including data protection laws. Merchant will notify Realift, promptly and without any undue delay, of any discovered unauthorized use of the Services or any other breach of security that is known or reasonably suspected by Merchant. Realift may suspend the Services, upon notice and a reasonable opportunity to cure, in the event of a material violation by Merchant of any obligation contained in this Sections 5, until such violation ceases, and Realift receives reasonable assurances that such violation will not continue. Any use of the Services in violation of the Agreement by Merchant that, in Realift’s reasonable judgment, threatens the security, integrity or availability of Realift’s services or that of its other customers, may result in Realift immediately suspending the Services; however, Realift will use commercially reasonable efforts under the circumstances to provide Merchant with notice and an opportunity to remedy such violation or threat prior to such suspension.

6. Intellectual Property Ownership.

6.1 For Realift. Except for the limited right to access and use the Services under this Agreement and the applicable Order, Merchant acknowledges and agrees that, as between the parties, Realift (or its licensors) have and will retain any and all rights, title, and interest in the Services and all derivative works made by any person or entity in or to the Services, including, but not limited to, patents, copyrights, trademarks, trade secrets and other intellectual property and proprietary rights (collectively the “Intellectual Property Rights”) associated with the Services. Merchant will not assert or cause any other party (including, without limitation, any User) to assert any right, title, or interest in or to the Services or other portion of Realift’s Intellectual Property Rights. This Agreement is not a sale and except as set forth in this Agreement, does not give Merchant any rights of ownership in, or related to, the Services, any Realift software or the Intellectual Property Rights owned by Realift.

6.2 For Merchant. Except as set forth in this Agreement, this Agreement does not give Realift any rights of ownership in, or related to, any Intellectual Property Rights owned by Merchant.

6.3 Feedback. Merchant may, but is not obligated to, provide suggestions, enhancement requests, recommendations, or other feedback to Realift relating to Realift’s software, the Services, or business operations (“Feedback”). To the extent Merchant provides Feedback, Merchant grants Realift a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate any such Feedback into its software, the Services, or its business operations

.7. Payment of Fees.

7.1 Fees. Realift will invoice Merchant the fees as set forth in the applicable Order (the “Fees”) Unless otherwise agreed to by the parties or as set forth on an Order, all Fees for any renewal periods will be at a seven percent (7.0%) premium from the preceding Term. Realift will invoice Merchant as set forth in the applicable Order. All invoices are payable in U.S. dollars unless otherwise set forth in the applicable Order.

7.2 Payment. Each invoice will be due thirty (30) days after receipt by Merchant, except for any amounts subject to a good faith dispute by Merchant. Merchant agrees to notify Realift within fifteen (15) days after receipt of an invoice if there are any disputed amounts. The Parties will endeavor in good faith to resolve any dispute within fifteen (15) days of the date of notice of such dispute. All undisputed amounts past due will be charged a fee of one- and one-half percent (1.5%) of the outstanding balance per month, or the highest amount allowed by law, whichever is lower.

7.3 Taxes. The Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Merchant is responsible for paying all Taxes associated with its purchases under this Agreement and any Order. If Realift has the legal obligation to pay or collect Taxes for which Merchant is responsible under this Section 7, including for Fees previously invoiced, Realift will invoice Merchant and Merchant will pay that amount (unless Merchant provides Realift with a valid tax exemption certificate authorized by the appropriate taxing authority). Realift is solely responsible for taxes assessable against Realift based on its income, property, and employees.

7.4 Suspension of Services for Non-payment and Acceleration. If any amount owing by Merchant under this or any other Agreement with Realift that is not subject to a good faith dispute is sixty (60) or more days overdue, Realift may, without limiting its other rights and remedies, accelerate Merchant’s unpaid fee obligations under such Order so that all such obligations become immediately due and payable, and suspend any and all services until such amounts are paid in full. Merchant will continue to be charged fees during any period of suspension. If Merchant or Realift initiates termination of this Agreement, Merchant will be obligated to pay the balance due on Merchant’s account. Realift reserves the right to impose a reconnection fee in the event Merchant’s account is suspended and Merchant later requests access to the Services. 

8. Term and Termination.

8.1 Term. This Agreement will commence on its Effective Date and will remain in effect for the term set forth in the Order (the “Initial Term”). The Agreement will automatically renew for successive terms equal to the Initial Term (each a “Renewal Term”), unless one party gives notice to the other party of its intent not to renew at least sixty (60) days prior to the expiration of the then current Term. The Initial Term together with any Renewal Term permitted under this Section is the “Term” of this Agreement. If there are any active Orders existing under this Agreement as of the expiration of the Term, which the Orders are not otherwise terminated under this Agreement, the Term of this Agreement will continue with respect to an outstanding the Order until expiration, termination, or completion of each such Order.

8.2 Termination for Breach. Either party may terminate this Agreement or any Order at any time by giving written notice to the other party in the event that the other party is in breach of any of its obligations under this Agreement or any Order and fails to remedy such breach within thirty (30) days after written notice from the other party.

8.3 Termination for Insolvency. If: (a) a party files a petition under any chapter of the United States Bankruptcy Code (11 U.S.C. §101 et. seq., as amended from time to time, or under any similar law or statute (each, an “Insolvency Statute”); (b) a petition is filed under any such Insolvency Statute (provided that such petition is not dismissed within thirty (30) days of filing) or such party notifies the other party that such a petition will be filed under an Insolvency Statute; (c) a party becomes or is declared insolvent, or is unable to pay its debts as they become due; (d) a party is the subject of any proceedings related to dissolution, liquidation, insolvency or the appointment of a receiver, trustee or similar officer for all or a substantial part of such party's assets; or (e) a party makes an assignment for the benefit of all or substantially all of its creditors; then the other party may terminate this Agreement and all Orders as of a date specified in a termination notice.

8.5 Post Termination Obligations. Upon expiration or termination of this Agreement for any reason, Realift will promptly terminate the Services. Realift will have no obligation to maintain or provide any Merchant Data and may thereafter, unless legally prohibited, delete all Merchant Data in its systems or otherwise in its possession or under its control. Sections 1, 3, 6, 7, 8.5, 9.2, 12 through 16 will survive any termination or expiration of this Agreement. All other rights and obligations will be of no further force or effect. Termination will not relieve either party from any liability arising from any breach of this Agreement. Neither party will be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms. Furthermore, termination of this Agreement by a party will be without prejudice to any other right or remedy of a party under this Agreement or applicable law.

9. Representations & Warranties and Disclaimers.

9.1 Reps and Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Realift represents and warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision of such Services and that the Services will perform substantially in accordance with the User Guides under normal use and circumstances. Merchant’s sole and exclusive remedy and Realift’s sole obligation for a breach of the warranties in this Section, will be the correction or re-performance of the nonconforming Service by Realift. If after reasonable efforts, neither remedy is commercially available, Realift may cancel this Agreement and refund Merchant, a pro-rata portion of the Fees that have been paid but not used by Merchant from the date of notice by Merchant of such breach. Merchant represents and warrants that (i) Merchant owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of all of the Merchant Data that is placed on, transmitted via or recorded by the Services; (ii) the provision and use of Merchant Data as contemplated by this Agreement and the Services does not and will not violate any Merchant privacy policy, terms-of-use or other agreement to which Merchant is a party or any law or regulation to which Merchant is subject.

9.2 DISCLAIMER. REALIFT DOES NOT WARRANT THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES REALIFT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED OR THE LOSSES THAT MAY OCCUR FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY SET FORTH IN THE AGREEMENT, THE SERVICES ARE PROVIDED “AS IS,” AND REALIFT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

10. Indemnification.

10.1 Merchant’s Indemnification of Realift. Merchant will indemnify, defend, and hold harmless Realift and its respective directors, officers, employees and agents from and against any and all claims, losses, damages, suits, fees, judgments, costs and expenses, (including reasonable attorney’s fees) (“Claims”) or any claims by you or any third party which may arise from or relate to this Agreement or the Merchant Data.

10.2 Procedure for Handling Indemnification Claims. In the event of any Claim, Realift will give prompt notice of any such Claim to Merchant; provided that the failure to provide such notice will not relieve Merchant of its obligations unless such failure prejudices Merchant’s ability to defend the Claim). Merchant will be entitled if it so elects in a notice promptly delivered to Realift, to immediately take control of the defense, settlement and investigation of any Claim and to employ and engage attorneys reasonably acceptable to Realift to handle and defend the same, at Merchant’s sole cost. Realift will cooperate in all reasonable respects, at Merchant’s cost and request, in the investigation, trial and defense of such Claim and any related appeals. Merchant will not consent to the entry of any judgment or enter into any settlement with respect to a Claim without Realift’s prior written consent, which may be withheld in its sole discretion. Realift may also, at its own cost, participate through its attorneys or otherwise in such investigation, trial and defense of any Claim and related appeals.

11. Limitation of Liability.(a) YOU AGREE THAT REALIFT’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, NO MATTER THE THEORY OF LIABILITY, WILL NOT EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR OWED BY MERCHANT UNDER THIS AGREEMENT DURING THE THEN-CURRENT ORDER OR, IF LESS, THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. YOU AGREE THAT WE ARE NOT RESPONSIBLE IN ANY WAY FOR DAMAGES CAUSED BY THIRD PARTIES WHO MAY USE OUR SERVICES, INCLUDING BUT NOT LIMITED TO PEOPLE WHO COMMIT INTELLECTUAL PROPERTY INFRINGEMENT, DEFAMATION, TORTIOUS INTERFERENCE WITH ECONOMIC RELATIONS, OR ANY OTHER ACTIONABLE CONDUCT TOWARDS YOU. WE ARE NOT RESPONSIBLE FOR ANY LOSSES INCURRED AS THE RESULT OF YOUR DECISION TO USE OUR SERVICE. YOU ARE RESPONSIBILITY FOR DETERMINING THE SUITABILITY OF OUR SERVICE FOR YOUR PURPOSES. WE ARE NOT RESPONSIBLE FOR ANY FAILURE ON THE PART OF A PAYMENT PROCESSOR, INCLUDING YOUR CREDIT CARD COMPANY, TO DIRECT PAYMENTS TO THE CORRECT DESTINATION, OR ANY ACTIONS ON THEIR PART IN PLACING A HOLD ON YOUR FUNDS.(b) WE ARE NOT LIABLE FOR ANY FAILURE OF THE GOODS OR SERVICES OF OUR COMPANY OR A THIRD PARTY, INCLUDING ANY FAILURES OR DISRUPTIONS, UNTIMELY DELIVERY, SCHEDULED OR UNSCHEDULED, INTENTIONAL OR UNINTENTIONAL, ON OUR WEBSITE WHICH PREVENT ACCESS TO OUR WEBSITE TEMPORARILY OR PERMANENTLY. THE PROVISION OF OUR SERVICE TO YOU IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS AGREEMENT.(c) THE PARTIES AGREE THAT IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, NO MATTER HOW CAUSED OR THE THEORY OF LIABILITY, AND WHETHER OR NOT A PARTY HAS BEEN ADVISED THAT SUCH DAMAGES ARE POSSIBLE.For Jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of this Agreement, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE ABOVE RELEASE

.12. Forum of Dispute. You agree that any dispute arising from or relating to this Agreement will be heard solely by a court of competent jurisdiction in the State of Georgia. If you bring a dispute in a manner other than in accordance with this section, you agree that we may move to have it dismissed, and that you will be responsible for our reasonable attorneys’ fees, court costs, and disbursements in doing so. You agree that the unsuccessful party in any dispute arising from or relating to this Agreement will be responsible for the reimbursement of the successful party’s reasonable attorneys’ fees, court costs, and disbursements.

13. Notices. Any notice under this Agreement must be given in writing. Realift may provide notice to you via email or through your account. Realift’s notices to you will be deemed given upon the first business day after we send it. You may provide notice to us by post to Realift LLC, 1199 Argonne Way NE, Atlanta, GA, 30324, Attn: Legal. Your notices to us will be deemed given upon our receipt.

14. Assignment. Merchant agrees that it will not assign this Agreement without the prior written consent of Realift. Realift may assign our rights and obligations under this Agreement (in whole or in part) without your consent. Any attempted assignment in violation of this Section will be void.

15. Modifications. As our business evolves, we may change these Merchant Terms and the other components of the Agreement (except any Orders). If we make a material change to these Merchant, we will provide Merchant with reasonable notice prior to the change taking effect, by emailing the email address associated with Merchant’s account. Merchant can review the most current version of the Merchant Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Agreement. The materially revised Agreement will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Merchant (or any User) accesses or uses the Services after the effective date, that use will constitute Merchant’s acceptance of any revised terms and conditions.

16. Miscellaneous.

16.1 Publicity. We may identify you as a Realift Merchant in our promotional materials. You may request that we stop doing so by submitting an email to info@getrealift.com  at any time. Please note that it may take us up to thirty (30) days to process your request.

16.2 No Third Party Beneficiaries. This Agreement will be binding upon and inure solely to the benefit of the parties. The parties intend that there will be no third party beneficiaries under this Agreement, and that no person or entity, except the parties, will have any rights or remedies under this Agreement, including the right to bring any action on account of its breach or in any relation to it whether in contract, in tort, or otherwise

.16.3 Compliance with Laws. Merchant agrees that it will comply with all laws, administrative regulations and executive orders, including but not limited to those relating to the control of imports and exports of commodities and technical data, use or remote use of software and related property, or registration of this Agreement that may apply in the United States or in any other jurisdiction in which the Services will be located or from which the Services will be accessed under this Agreement, including, but not limited to, the Export Administration Regulations of the U.S. Department of Commerce, the International Traffic in Arms Regulations of the U.S. Department of State, and the Enhanced Proliferation Control Initiative. Merchant will not, without prior written consent, if required, of the office of Export Administration of the U.S. Department of Commerce, or other applicable U.S. governmental agency or department, export, re-export, allow the re-export, transship, download, or transmit any part of the Services or Confidential Information to any country (“Restricted Nation”), person or entity to which such transmission is restricted by applicable regulations or statutes, including to any individual, group or organization on the U.S. Department of Treasury's Office of Foreign Assets Control's list of Specially Designated Nationals or the U.S. Department of Commerce's Bureau of Export Administration's List of Denied Persons, as each may be amended from time to time.

16.4 Relationship. The relationship between the parties created by this Agreement is that of independent contractors and not partners, joint venturers or agents. Except as expressly agreed by the parties, neither party will be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other.

16.5 No Exclusivity. Nothing in this Agreement restricts a party's right to contract with any third party to provide products and/or services similar to or identical to the Services provided under this Agreement.

16.6 Entire Agreement. This Agreement, the applicable Order and the attachments and schedules attached to this Agreement constitute the entire Agreement of the parties with respect to the subject matter hereof and supersedes any and all existing agreements relating to the subject matter hereof. To the extent, there is any conflict among the terms of this Agreement and the applicable Order, such conflict will be governed in the following order: 1) the terms of the Order; and then, 2) this Agreement and any applicable addenda, the terms of which are incorporated into the Order by reference.

16.7 Modification and Waiver. No modification of this Agreement, and no waiver of any breach of this Agreement, will be effective unless in writing and signed by an authorized representative of the party against whom enforcement is sought. No waiver of any breach of this Agreement, and no course of dealing between the parties, will be construed as a waiver of any subsequent breach of this Agreement.

16.8 Force Majeure. Neither party will be liable for any failure or delay in the performance of any of their respective obligations (other than confidentiality obligations and payment obligations) if prevented from doing so by a cause or causes beyond its reasonable control (a “Force Majeure Event”). Without limiting the generality of the foregoing, Force Majeure Events include fires, floods, terrorism, strikes, blackouts, war, restraints of government, utility or communications failures or interruptions, failures of third party vendors, Internet slow-downs or failures, computer hackers or other causes that are beyond a party’s reasonable control. Failure to meet due dates or time schedules resulting from a Force Majeure Event will extend the due dates or time schedules for reasonable periods of time as determined by the parties in good faith.

16.9 Severability. The illegality, invalidity, or unenforceability of any provision of this Agreement will not in any manner affect or render illegal, invalid or unenforceable any other provision of this Agreement, and that provision, and this Agreement generally, will be reformed, construed and enforced so as to most nearly give lawful effect to the intent of the parties as expressed in this Agreement.

16.10 Headings. Section headings are for convenience of reference only and will not affect the interpretation of this Agreement.

16.11 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but which together will constitute one and the same instrument. Electronic execution and delivery of this Agreement is legal, valid and binding execution and delivery for all purposes.

16.12 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Georgia. Any legal suit, action, or proceeding arising out of, or related to, this Agreement or the licenses granted hereunder must be instituted exclusively in the federal courts of the United States or the courts of the State of Georgia, in each case located in the County of Fulton, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court. 

16.13 Disputes; Arbitration. Any dispute, controversy or claim arising out of or in connection with, or relating to, this Agreement or any breach or alleged breach hereof, upon the request of any Party involved, shall be submitted to, and settled by, arbitration, before one (1) arbitrator, within Fulton County, State of Georgia, pursuant to the commercial arbitration rules then in effect of JAMS (or at any time or at any other place or under any other form of arbitration mutually acceptable to the parties so involved). Any award rendered shall be final and conclusive upon the parties and a judgment thereon may be entered in the highest court of the forum, state or federal, having jurisdiction. The expenses of the arbitration shall be borne equally by the parties to the arbitration; provided, however, that each party shall pay for and bear the cost of its own experts, evidence and counsel’s fees; and provided further, however, that, in the discretion of the arbitrator, any award may include the cost of a party’s counsel if the arbitrator expressly determines that the party against whom such award is entered has caused the dispute, controversy or claim to be submitted to arbitration as a dilatory tactic.

16.14 Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

16.56 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party hereto against the other Party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party.

16.16 Counterparts; Electronic Delivery. This Agreement may be executed in one or more counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by email, or other means of conventional electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

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