Standard Terms and Conditions

a. Subject to the terms and conditions of this Agreement, Bold will provide the services to the Customer set out in and in accordance with the applicable Order Form using the technology, hardware, applications software, systems, data, documentation and other materials used by Bold to deliver the respective services (the “Bold System”) (collectively, the “Services”). Each Order Form is automatically deemed to include all terms and provisions of this Agreement.

b. To the extent applicable to the Services, the Services shall be provided in accordance with (i) the technical, functional, physical, design, environmental, operational, performance or other relevant specifications or requirements set out or linked to in an applicable Order Form (subject to Section ‎3 of this Agreement) (“Specifications”); and (ii) the service levels set out or linked to in the applicable Order Form (“Service Levels”).

c. The Bold System may provide access to or integrate with certain applications or software platforms that are managed or developed by third parties (“Third-Party Software”), the use of which is governed by the applicable Third-Party Software terms and conditions. In such instance, the Customer’s use of the Services and Bold System shall be subject to and conditional upon the Customer’s acceptance to any Third-Party Software terms and conditions.

a. Bold sends two types of communications to Customer’s customers who use Bold’s apps (“Merchant Customers”): functional ones (like order update emails) and, where requested by the Customer, marketing ones (like reorder nudges via email, SMS, push or browser notifications). Customer is responsible for ensuring that Merchant Customers have agreed to receive marketing communications and for keeping Merchant Customer marketing preferences current. The Bold System will check the marketing consent status on the Customer’s ecommerce platform before sending any promotional nudges.

• i. Customer acknowledges and agrees that Bold may send transactional communications to Merchant Customers on behalf of the Customer. Transactional communications include, but are not limited to, upcoming order reminders, order confirmations, billing updates, and cancellation notices. These communications are deemed necessary for the performance of the Services and the underlying contract between the Customer and the Merchant Customer; as such, they do not require independent marketing consent under most applicable laws.
• ii. For non-transactional communications, such as reorder nudges, personalized recommendations, or promotional messaging (“Marketing Communications”), Bold will only send such messages on behalf of Customer where a Merchant Customer has provided valid opt-in consent.

b. The Bold System is designed to interface with Customer’s ecommerce platform to identify and respect the "marketing consent" or "opt-in" status of each Merchant Customer. Customer is solely responsible for:

• Ensuring that its ecommerce platform and checkout processes accurately capture and record Merchant Customer consent in compliance with applicable laws (e.g., TCPA, CAN-SPAM, GDPR, CCPA/CPRA);
• Maintaining accurate and up-to-date records of such consent; and
• Ensuring that its own privacy policy accurately discloses that third-party service providers (like Bold) may send communications on Customer’s behalf.

c. Bold shall not be liable for any Marketing Communications sent based on inaccurate consent data provided by Customer’s ecommerce platform. Customer agrees to indemnify and hold Bold harmless from any claims arising out of the unauthorized sending of Marketing Communications where Customer’s platform indicated that consent had been obtained.

a. Customer may grant its employees and independent contractors (“Authorized Users”) access to and use of the Services subject to any limitations, conditions and restrictions set forth in this Agreement. Authorized User passwords shall be kept confidential and may not be shared with any other individual. The Customer agrees that it shall remain fully responsible and liable for any access to or use of the Services by any Authorized User and any failure by an Authorized User to comply with the terms of this Agreement.

b. Customer’s use of the Services is subject to the following restrictions and limitations. Customer shall:

• not (except as otherwise expressly provided in this Agreement) provide, disclose, sublicense or otherwise permit any person to access, use, read, disseminate, transmit, download or reproduce any software forming part of the Bold System or Third-Party Software (collectively, “Software”);
• not adapt, translate, change, customize, enhance, augment, partially delete or alter, or otherwise modify, any Software in any manner or to any extent whatsoever, whether in whole or in part;
• not, to the maximum extent permitted by Applicable Law (defined below) for the purpose of permitting interoperability with Customer’s systems, disassemble, decompile, reverse engineer, or otherwise in any manner deconstruct all or any part off the Software;
• not be permitted to use the Services to act as a “service bureau” or in a time-sharing, application service provider or other similar model, to provide the benefit of the use of the Services to any person except as expressly permitted under this Agreement;
• not use the Services to store or transmit infringing, libellous or otherwise unlawful or tortious material, or to store or transmit material in violation of any Third-Party Software terms and conditions;
• not use the Services to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses;
• not disclose the results of any Software benchmark test without Bold’s prior written consent;
• not have any right to access or obtain a copy of the object code or source code to the Software;
• not interfere with or disrupt the integrity or performance of the Services;
• not attempt to gain unauthorized access to any Software, the Services or its related systems or networks;
• not permit direct or indirect access to or use of any of the Services in a way that circumvents any contractual usage limit;
• not frame or mirror any part of any of the Services;
• not access any Services in order to build a competitive product or service;
• use the Services only in accordance with Applicable Laws; and
• notify Bold promptly of any unauthorized access or use of the Services.

c. Customer Obligations. Customer shall be responsible: (i) to reasonably assist, cooperate and facilitate the provision of any of the Services, including the prompt provision of information and assistance that Bold may reasonably request that is required by Bold in order to perform its obligations under this Agreement; (ii) for the accuracy, integrity and legality of Customer Data (defined below) and the means by which the Customer acquires and uses Customer Data, including obtaining any and all necessary and required consents, licenses, permits, permissions, releases, clearances, and rights to use, display, process, share, transfer, post or upload the Customer Data under the Agreement; (iii) for obtaining and maintaining any equipment, data sources, connectivity and ancillary services needed to access or otherwise receive the Services or use the Bold System (as may be more fully described in the applicable Order Form); and (iv) to provide Bold with access during Customer’s regular business hours to any Customer facilities or premises and the Customer’s systems to the extent reasonably required by Bold and agreed to by Customer in order to allow Bold to perform its obligations under this Agreement. If Customer fails to perform any obligation or provide any assistance, access, information or data specified in this Agreement, Bold shall be excused from its performance under this Agreement to the extent Bold is unable to perform as a result of such Customer failure.

Unless the parties otherwise agree in writing, Bold reserves the right from time to time, in its sole discretion, to modify or change, in whole or part the Services, Bold System or Specifications; provided, that any such modification or change will not result in a material degradation of the Services in the aggregate; and notwithstanding anything to the contrary in this Agreement including clause ‎(a) above, Bold may modify or change, in whole or part, the Services, Bold System or Specifications without notice, obligation or liability to the Customer where such modification or change arises from modification or change to any Third-Party Software.

a. The Customer will pay to Bold the applicable fees set out in each Order Form (collectively, the “Fees”).

b. The Fees are exclusive of all taxes imposed by Applicable Law in connection with the Fees, including, sales tax, goods and services tax, use, withholding or excise tax and all other like or similar taxes applicable to the provision of Services, and Customer shall pay or reimburse Bold for all such applicable taxes (exclusive of taxes based on Bold’s income).

c. Bold reserves the right to (prospectively or retrospectively, as applicable) increase the Fees in the event Customer determines any withholding tax obligation prevents Bold from receiving the specified fees for such Services in the applicable Order Form.

d. Except to the extent expressly provided in this Agreement, each of the Customer and Bold will be responsible for its own costs in receiving or delivering the Services, respectively.

The Customer will make all payments related to the Fees on or before the due date set forth in the applicable Order Form. If Customer fails to make any payment when due, without limiting Bold’s other rights and remedies: (i) Bold may charge interest on the past due amount at the rate of two percent (2.0%) per month compounded monthly or, if lower, the maximum amount permitted by law; (ii) Customer shall reimburse Bold for all reasonable costs incurred by Bold in collecting any late payments or interest, including legal fees, court costs, and collection agency fees; and (iii) if such failure continues for fifteen (15) days or more, Bold may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services in accordance with Section 7(e) of the agreement.

a. The initial term of the Agreement (the “Initial Term”) will commence on the Effective Date and continue for the period set out in the applicable Order Form, and shall renew in accordance with the applicable Order Form (each, a “Renewal Term”, and together with the Initial Term, the “Term”). Each Order Form will terminate upon termination or expiration of this Agreement.

b. Subject to Section 7(d), this Agreement may be terminated immediately by either party upon written notice to the other party: if the other party breaches any material provision of this Agreement and, if the breach is capable of being cured, fails to cure the breach within thirty (30) days written notice to the breaching party; if the other party: ceases to do business as a going concern, admits in writing its inability to pay debts as they become due, files or becomes the subject of a petition in bankruptcy, appoints a receiver, acquiesces in the appointment of a receiver or trustee, becomes insolvent, makes an assignment for the benefit of creditor, goes into liquidation or receivership or otherwise loses legal control of its business; or if a right on the part of that party to terminate this Agreement expressly set out in another provision of this Agreement, including an Order Form, arises.

c. In addition to its termination rights under Section 7(b), Bold may terminate this agreement immediately upon written notice to Customer if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Bold’s delivery of written notice thereof; or (ii) breaches any of its obligations under Sections ‎‎2 or ‎7 of this Agreement.

d. Upon expiration or termination of this Agreement or an applicable Order Form, Bold will terminate Customer’s use and access to the terminated Services, and Customer shall cease using and accessing the terminated Services. If any Order Forms are terminated by Customer in accordance with Section 7(b), then Bold will refund Customer any prepaid fees covering the remainder of the Term of the terminated Services. If this Agreement is terminated by Bold in accordance with Section 7(b) or 7(c), then Customer will pay to Bold an amount equal to the aggregate of all unpaid fees (if any) that would otherwise be payable for the Services for the remainder of the Term applicable to the terminated Services. Any Fees paid prior to the date of termination are non-refundable and in no event will termination or expiration relieve Customer of its obligation to pay any fees for the period prior to the effective date of termination or expiration.

e. Bold may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Bold reasonably determines that (A) there is a threat or attack on the Services or the Software, in whole or in part, (B) Customer’s or any Authorized User’s use of the Services disrupts or poses a security risk to the Services, the Software or to any other customer or vendor of Bold, (C) Customer, or any Authorized User, is using the Services for fraudulent or illegal activities, (D) subject to applicable laws, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, or (E) Bold’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Bold has suspended or terminated Bold access to or use of any component of the Software or any other third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 7 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Bold shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Bold shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. If a Service Suspension under (i) or (iii) remains ongoing for more than thirty (30) days, Bold may, at its sole discretion, terminate this Agreement, the applicable Order Form or any Services. Bold will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension or termination under this Section.

a. Each party (the “Receiving Party”) acknowledges that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, financial or other information relating to the Disclosing Party’s business that reasonably should be understood to be confidential given the nature of the information (“Confidential Information”), excluding any information that the Receiving Party can document is or becomes generally available to the public; or was in its possession or known by it prior to receipt from the Disclosing Party; or was rightfully disclosed to it without restriction by a third-party; or was independently developed without use of or reference to any Confidential Information of the Disclosing Party.

b. Confidential Information of Bold includes non-public information regarding features, functionality and performance of the Services, including any benchmarking studies and service level reports.

c. The Receiving Party will take reasonable precautions to protect Confidential Information, and not to use (except in performance of the Services or as otherwise permitted by this Agreement) or divulge to any third-party any Confidential Information.

d. If the Receiving Party is required by any Applicable Law, rule or regulation of any court or government agency of competent jurisdiction or pursuant to legal process to disclose all or any part of the Confidential Information of the Disclosing Party, the Receiving Party will immediately notify the Disclosing Party of the requirement; and use commercially reasonable efforts to provide the Disclosing Party with an opportunity to take the steps as it desires to challenge or contest the disclosure or seek a protective order or other remedy. Thereafter, the Receiving Party may disclose the Confidential Information, but only to the extent so required and subject to any protective order or other remedy that applies to the disclosure.

Each party will, and will cause its personnel and subcontractors to, comply with all applicable privacy and data protection laws, rules and regulations which are applicable to the Services. Unless otherwise set out in an applicable Order Form, Bold shall use, collect, disclose and process, personal information collected from Customer through provision of the Services in accordance with its current Privacy Statement available at https://boldcommerce.com/privacy-statement, as updated from time to time (the “Privacy Statement”), and by entering into this Agreement, Customer acknowledges and agrees to such Privacy Statement. Bold may revise its Privacy Statement from time to time without notice by posting a new version at https://boldcommerce.com/privacy-statement, as updated from time to time. By continuing to use the Services after posting of the updated Privacy Statement, Customer accepts the practices described in this updated Privacy Statement. If Customer fails to accept the practices described in this new Privacy Statement, Bold may terminate this Agreement and any applicable Order Form for any Services on notice to the Customer (in which case Bold will refund to Customer any pre-paid fees in respect of the Services that are being terminated). If Customer fails to comply with the practices described in this Section, Bold may terminate this Agreement in accordance with Section 7(b) of this Agreement.

a. The Customer will own and retain all right, title and interest in the data provided by it to Bold to enable the provision of the Services (“Customer Data”); and all intellectual property rights related to the Customer Data.

b. For a period ending thirty (30) days after the expiration or termination of this Agreement, the Customer may remotely access and download a full and complete copy of the Customer Data in native format, from the Bold System or, if not so available, Bold will provide a full and complete copy of the Customer Data to Customer on an industry standard physical storage media.

c. Bold will own and retain all right, title and interest in the Services, Bold System and all improvements, enhancements or modifications to the Services and Bold System; any data (including metadata) arising or derived from or based on the provision, use and performance of various aspects of the Services and Bold System (other than Customer Data); any software, applications, inventions or other technology developed by or on behalf of Bold in connection with the Services and Bold System; and all intellectual property rights related to any of the foregoing.

d. Bold will have the right to access, use, copy, support, maintain, modify, sublicense and distribute the Customer Data solely as necessary to deliver the Services in accordance with this Agreement; and use the Customer Data to improve and enhance the Services and Bold System and for other development, diagnostic and corrective purposes under this Agreement; or on an anonymized or aggregated basis, independent of this Agreement, but only if and to the extent in the case of this clause ‎(d) that data (or derived data) does not reference the Customer, disclose Confidential Information of the Customer and is properly anonymized consistent with prevailing industry standards.

e. Customer may provide feedback, suggestions, recommendations, and corrections to Bold about the Services or otherwise in connection with the Agreement, including by responding to surveys and questionnaires (“Feedback”). Customer grants to Bold and its affiliates a worldwide, perpetual, irrevocable, royalty-free, transferable, sublicensable (through multiple tiers) license to use the Feedback without restriction and without obligation to Customer, including to incorporate the Feedback into the Services or Bold’s other products and services, provided that such Feedback does not identify Client.

f. No rights or licenses are granted except as expressly set out in this Agreement.

g. Customer acknowledges and agrees that the Bold System was developed at considerable time and expense by Bold and that the Bold System contains Confidential Information including, without limitation, the trade-secrets of Bold.

a. Bold will implement and maintain commercially reasonable physical, organizational and technological security measures that are appropriate having regard to the sensitivity of the Customer Data to protect against loss, theft and unauthorized access, disclosure, use, modification or disposal of Customer Data.

b. In the event either party becomes aware of any loss, theft or unauthorized access, copying, modification, use or disclosure of the Confidential Information of the other party or the Services, the Bold Systems or Customer Data (collectively a “Data Incident”), it will, in accordance with Applicable Laws: (i) notify the other party in writing of the circumstances of such Data Incident, as well as the nature and details of such loss, theft or unauthorized access, copying, modification or disclosure, including the nature and content of the data, systems, materials and content so affected as soon as feasible following discovery of the Data Incident (taking into account any legal or regulatory restraints on notification and the need to avoid prejudicing current investigations); (ii) promptly respond to such Data Incident and investigate and remediate the Data Incident in accordance with commercially reasonable industry standards and keep all records, reports and evidence of the Data Incident as required by Applicable Laws; (iii) provide cooperation and assistance to the other party, and promptly take such actions as may be necessary or reasonably requested by the other party to minimize the extent of any impacts of such Data Incident; (iv) take all such actions to notify any government authorities or affected persons as may be required by applicable law; (v) maintain all relevant and applicable records of, and all relevant and applicable records or other information pertaining to, such Data Incident, including the results of any investigation or investigation by law enforcement officials as required by applicable law; and (vi) cooperate in all reasonable respects with the other party, including without limitation, working with the other party on the wording of any required notifications and communications, and take such measures as necessary to minimize the likelihood of future disclosures, losses or breaches. Each party agrees to respond to reasonable inquiries received from the other party in connection with a Data Incident, and where requested shall make available relevant employees to discuss such inquiries with the other party’s representatives. Each party shall treat all such information received from the party experiencing the Data Incident, as the Confidential Information of the party experiencing the Data Incident.

c. Bold shall comply with, and adhere to, the requirements of PCI DSS. Bold warrants that as of the Effective Date, it is compliant with PCI DSS and will deliver to the Customer upon written request an attestation of compliance evidencing Bold’s compliance with PCI DSS.

a. Some of the Services may include features or functionality that use artificial intelligence (“AI Features”). For the purposes of this section, “Input” means any data, instructions, prompts, or other content you submit to the AI Features. “Output” means any text, images, recommendations, analysis, or other results generated by the AI Features in response to the Input.

b. You retain all right, title, and interest in the Input. Subject to your compliance with this Agreement, Bold hereby assigns to you all right, title, and interest in the Output. You acknowledge and agree that: (a) Output is generated automatically and may not be accurate, complete, reliable, or appropriate for your intended purpose; (b) Output may not qualify for intellectual property protection; and (c) similar or identical Output may be generated for other customers in response to similar inputs. Bold and its licensors retain all right, title, and interest in and to the Services, the underlying models, algorithms, training data, and any pre-existing materials used to develop or operate the AI Features, and no rights are granted to you in such materials other than the limited rights expressly set out in this Agreement.

c. Bold may use, log, or retain Input and Output as necessary to provide, maintain, support, secure, monitor, and improve the Services. Notwithstanding anything to the contrary in this Agreement, Bold will not use your non-anonymized information or data to train, tune, or improve any “foundation,” “large language,” or other generalized AI models that are made available to, or used for the benefit of, other Bold customers without your prior written consent. Bold may use anonymized or aggregated data to improve models, algorithms, and system performance.

YOU ACKNOWLEDGE THAT THE AI FEATURES ARE EMERGING TECHNOLOGIES AND MAY GENERATE OUTPUT THAT IS INCORRECT, INCOMPLETE, BIASED, UNFAIR, MISLEADING, NONSENSICAL, OR OFFENSIVE. ALL OUTPUT IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. YOU ARE SOLELY RESPONSIBLE FOR REVIEWING, VALIDATING, AND VERIFYING ALL OUTPUT BEFORE USING, RELYING UPON, OR SHARING ITS CONTENT, AND FOR ANY CONSEQUENCES OF YOUR USE OF THE OUTPUT.

d. In addition to the “Acceptable Use” section of this Agreement, you shall not, and shall not permit others to, use the AI Features or any Output to: (a) promote or facilitate illegal, fraudulent, harmful, or deceptive activities; (b) generate content involving violence, hate speech, harassment, or discrimination, or that insults or demeans any person or group; (c) generate sexually explicit content; (d) distribute malware, spam, or other malicious code; (e) track or monitor individuals without their knowledge and consent, or otherwise in violation of applicable privacy or data protection laws; (f) impersonate any person or misrepresent your identity; (g) bypass or attempt to bypass safety mechanisms or security controls (including attempts to “jailbreak” or otherwise override safeguards in AI systems); (h) use the AI Features or Output to create, train, or improve AI models or services that compete with Bold; or (i) use web scraping, web harvesting, or other automated data extraction methods to collect large volumes of Output or other data from the AI Features.

e. You acknowledge that the legal and regulatory framework governing AI is evolving. Bold makes no commitment to maintain, support, or continue to make available any AI Features, and may modify or discontinue them at any time in its sole discretion.

f. You are solely responsible for ensuring that your Input does not include any personal data or sensitive information unless you have all rights, consents, and legal bases required to provide such data to Bold for processing through the AI Features. Further, you are solely responsible for any notices or consents required to be provided to your end-users in connection with your use of AI Features, including any transparency, disclosure, or consent obligations under applicable AI, privacy, or consumer protection laws. Bold may limit, suspend, or terminate your access to the AI Features or the Services if you violate this section or any applicable documentation or usage guidelines, without limiting any other rights or remedies available to Bold under this Agreement.

Without limiting a party’s obligations or liabilities under this Agreement, each party will, at its own expense, secure and maintain appropriate insurance coverage to protect against any liability assumed under this Agreement.

a. Subject to Section 14(b), Bold will use commercially reasonable efforts consistent with prevailing industry standards to maintain its Services in accordance with the applicable Specifications and Services Levels.

b. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Bold, by providers of any Third-Party Software or because of other causes beyond Bold’s control. Bold will use commercially reasonable efforts to provide advance notice in writing to the Customer of any scheduled service disruptions.

c. Bold’s entire liability and the Customer’s sole remedy for a breach of Section 14(a) is for Bold to re-perform the defective Services or, in Bold’s sole discretion, to refund the amounts paid for the defective Services. Nothing in the foregoing will limit the rights and remedies of a party for a breach by the other party of any other provision of this Agreement.

d. EXCEPT AS EXPRESSLY PROVIDED UNDER THE AGREEMENT OR IN AN APPLICABLE ORDER, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND BOLD HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. BOLD DOES NOT WARRANT THAT THE SERVICES AND BOLD SYSTEM WILL BE UNINTERRUPTED, ACCURATE, COMPLETE OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES AND THE BOLD SYSTEM AND BOLD SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, CONDITIONS AND WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. BOLD MAKES NO REPRESENTATIONS, CONDITIONS, OR WARRANTIES OF ANY KIND AND DISCLAIMS ANY AND ALL WARRANTIES IN RELATION TO ANY THIRD-PARTY SOFTWARE PROVIDER OR ANY DATA STORAGE PROVIDE USED IN CONJUNCTION WITH THE SERVICES.

a. SUBJECT TO SECTION ‎15(B) AND ‎‎15(C), IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, CONTRACTORS AND AGENTS BE RESPONSIBLE OR LIABLE TO THE OTHER PARTY WITH RESPECT TO OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR BOLD SYSTEMS UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES; FOR LOSS OF BUSINESS, PROFITS, SAVINGS, REVENUES, GOODWILL OR REPUTATION, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHER COMMERCIAL OR ECONOMIC LOSSES OF ANY KIND; FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUBJECT TO SECTIONS ‎15(B) AND ‎‎15(C), EACH PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY WITH RESPECT TO OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE WITHIN THE PRECEDING TWELVE (12) MONTHS BY THE CUSTOMER TO BOLD FOR THE SERVICES THAT GAVE RISE TO THE LIABILITY (THE “BASE CAP”).

b. SECTION ‎15(A) WILL NOT APPLY TO LIMIT: A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION ‎‎16; ANY CLAIM ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; CUSTOMER’S LIABILITY FOR FAILURE TO PAY ANY FEES OWED UNDER THIS AGREEMENT; CUSTOMER’S LIABILITY FOR A BREACH OF SECTION ‎‎2 OR SECTION ‎9; OR SUBJECT TO SECTION ‎15(C), BOLD’S LIABILITY FOR A BREACH OF SECTION ‎9 OR ‎10.

c. NOTWITHSTANDING SECTIONS ‎15(A) AND 15(B), THE AGGREGATE LIABILITY OF BOLD UNDER THIS AGREEMENT OR OTHERWISE ARISING OUT OF OR RELATED TO A SECURITY BREACH, DATA BREACH, CYBER ATTACK, OR OTHER THIRD-PARTY SECURITY BREACH OF THE SERVICES OR THE BOLD SYSTEMS OR ONE OR MORE DATA INCIDENTS WILL NOT EXCEED AN AMOUNT EQUAL TO TWO TIMES (2X) THE BASE CAP.

d. Some jurisdictions do not allow limitations or exclusions of certain types of damages or of implied conditions or warranties. the limitations, exclusions, and disclaimers set out in this Agreement will not apply only if and to the extent that the Applicable Laws of a competent jurisdiction requires liabilities beyond and despite these limitations, exclusions, and disclaimers.

e. The Customer acknowledges and agrees that the limitations, exclusions and disclaimers in Section ‎‎14 and Section ‎‎15 constitute an essential element of the Services and that in the absence of such limitations, exclusions and disclaimers the Fees would be substantially higher and could impact Bold’s ability to offer and Customer’s ability to receive and use the Services in Customer’s jurisdiction.

a. Bold Indemnity. (i) Bold will defend, at its expense, any legal action against the Customer based upon a claim that the Services or Bold System provided by Bold, or use thereof, infringe a Canadian patent, trademark or copyright or misappropriate a trade secret and to pay any and all costs, liabilities, losses, and damages awarded based upon such legal claim or agreed upon in settlement. (ii) Bold will have no obligation to defend under Section ‎‎16(a): to the extent any allegation or determination of infringement is based on specifications, requirements, data, information or content provided by the Customer (including Customer Data); the use of any specific technology, materials or processes provided by the Customer or at the Customer’s request; use of the Services or Bold System in manner for which the Services or Bold System were not designed or intended; modification or combination of the Services or Bold System not authorized or provided by Bold; the intellectual property rights of the Customer; any Third-Party Software; or failure to use of non-infringing Services provided by Bold in accordance with Section ‎‎16(c); if the Customer fails to promptly notify Bold of the allegation or determination of infringement and the failure prejudices Bold’s ability to defend or the defenses available to it; or if Bold is not given the right to solely control and conduct the defense and any settlement of the legal claim. (iii) If all or any part of any of the Services or Bold System becomes, or in the reasonable opinion of Bold is likely to become, the subject of a claim of infringement described in Section ‎‎16(a), Bold may at its own expense procure for the Customer the right to use the applicable Services or Bold System; or modify or replace the applicable Services or Bold System or remove content or components so that it is non-infringing; or terminate the applicable Service if Bold refunds to the Customer any amounts prepaid by the Customer for the affected Services on a prorated basis. (iv) Sections ‎‎16(a) sets out the Customer’s sole and exclusive remedy, and Bold’s entire liability for any allegation or determination that the Services or Bold System infringe, violate or misappropriate the intellectual property rights of any third-party.

b. Customer Indemnity. Customer shall indemnify, hold harmless, and, at Bold’s option, defend Bold from and against any and all losses, damages, liabilities, costs (including reasonable legal fees) resulting from any claim, suit, action, or proceeding that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes, violates or misappropriates a third party’s intellectual property or privacy rights and any claim, suit, action, or proceeding based on Customer’s or any Authorized User’s (i) negligence or wilful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Bold or authorized by Bold in writing; (iv) modifications to the Services not made by Bold; or (v) breach of Applicable Laws, provided that Customer may not settle any such claim against Bold unless Bold consents to such settlement, and further provided that Bold have the right, at its option, to defend itself against any such claim, suit, action or proceeding or to participate in the defence thereof by counsel of its own choice.

Except for the payment obligations in Section ‎7, neither party will be liable for its failure to perform or the delayed performance of its obligations if such failure results from circumstances beyond the affected party’s reasonable control, including strikes, lock-outs and labour disputes, acts of God(s), war, riot, civil commotion, acts of terrorism, malicious damage, pandemics, compliance with any law or governmental order, rule, regulation or direction not in force on the Effective Date, accident, fire, flood or severe weather conditions (“Event of Force Majeure”). Each party agrees to give the other party prompt notice of any Event of Force Majeure (containing sufficient details). If an Event of Force Majeure continues for more than thirty (30) working days, either party will have the right to terminate this Agreement or any affected Order Form, without further liability to the other.

Each party will comply with applicable federal, state, provincial and local laws, rules, ordinances and regulations (“Applicable Laws”) in connection with the activities contemplated under this Agreement. In no event will either party be obligated under this Agreement to take any action that it believes, in good faith, would cause it to be in violation of any Applicable Laws. Each party agrees not to take any action, or fail to take any action, that would directly or indirectly result in the other party violating any Applicable Laws. The Customer is responsible for ensuring compliance with Applicable Laws related to their use of the Services.

a. Except as expressly set out in an Order Form, nothing in this Agreement will be deemed or construed to grant to either party exclusive rights or to bind any party in any way to an exclusive relationship with the other party.

b. Nothing in this Agreement will be deemed or construed to create the relationship of partnership or joint venture or a relationship of principal and agent, employer-employee, master-servant, or franchisor-franchisee between Bold and the Customer; or any relationship between the parties other than the relationship of independent parties contracting for services.

All media releases, public announcements or external disclosures of any nature (including any other disclosure of the name or trademarks of a party that indicate a relationship between the parties) by either party relating to this Agreement or its subject matter will be coordinated with and must be approved in advance by the other party prior to any release.

a. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party except in connection with a sale of its business, a sale of all or substantially all of its assets, a merger, a change of control transaction, a business combination or other such similar transaction, whether by way of contract, operation of law or otherwise; or as part of a bona fide corporate reorganization.

b. This Agreement will ensure to the benefit of and be binding upon the respective successors and permitted assigns of the parties.

a. Any notice contemplated by this Agreement, to be effective, must be in writing and delivered as follows: by email to the addressee’s email specified on the cover page of this Agreement, in which case it will be deemed to be received on the day sent; by hand to the addressee’s address specified on the cover page of this Agreement, in which case it will be deemed to be received on the day of its delivery; by nationally recognized overnight courier to the addressee’s address specified on the cover page of this Agreement, in which case it will be deemed to be received on the next business day after its couriering; or by prepaid post to the addressee’s address specified on the cover page of this Agreement, in which case it will be deemed to be received on the fifth business day after its mailing.

b. Either party may from time to time give notice to the other party of a substitute address or email address, which from the date such notice is given will supersede for purposes of this Section ‎‎22 any previous address or email address specified for the party giving the notice.

The Agreement, including schedules, appendices, Order Forms and linked documents (as revised from time to time) incorporated by reference, constitutes the entire agreement between the parties pertaining to the subject matter of this Agreement and supersedes all prior agreements, proposals, understandings, letters of intent, negotiations and discussions between the parties, whether oral or written, regarding the subject matter of this Agreement. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the parties other than as expressly set out in this Agreement. Bold objects to and rejects any additional or different terms proposed by the Customer, including those contained in Customer’s purchase orders or other procurement documents, unless expressly agreed to by Bold in writing and signed by Bold’s authorized signing representatives. Notwithstanding, all of the foregoing shall not apply where the parties execute a written agreement that expressly states that said written agreement supersedes the terms and conditions of this Agreement.

The “Last Updated” legend above indicates when this Agreement was last amended. Bold may unilaterally amend all or any part of this Agreement at any time by updating this Agreement at boldcommerce.com/standard-terms-and-conditions. Bold will provide Customer with notice of the proposed amendments by posting an amended version of this Agreement with a new version date and by sending Customer an email at the email provided at the time of entering into the applicable Order Form. Bold will include a link to the previous version of this Agreement beneath the new version date. The amendments will take effect thirty (30) days after the date on which the amended version is posted. Prior to that date, the previous version of this Agreement will continue to apply. If Customer disagree with any amendments, Customer may refuse the amendments and cease using the Services within the 30-day notice period. There will be no cost or penalty for doing so. If Customer or any Authorized User continues to access or use the Services after the 30-day period, Customer thereby agree to the amended Agreement. Customer agrees to review this Agreement regularly to determine its rights and responsibilities.

The termination of this Agreement will not release either of the parties from any obligation or liability that accrued prior to the termination. The provisions of this Agreement requiring performance or fulfilment after the termination of this Agreement, including Sections ‎‎2, ‎3, ‎5, ‎6, ‎8, ‎9, ‎‎10, ‎‎13, ‎‎14, ‎‎17, ‎‎18, ‎‎19, ‎‎21, ‎‎22, ‎23, ‎24, ‎25,‎26, ‎27, ‎28, ‎29, and ‎30 such other provisions as are necessary for the interpretation thereof, and any other provisions hereof, the nature and intent of which is to survive termination of this Agreement, will survive the termination of this Agreement.

If any provision of this Agreement is determined by any court of competent jurisdiction to be illegal or unenforceable, that provision will be severed from this Agreement and the remaining provisions will continue in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either of the parties.

The Agreement shall be exclusively governed by, construed and interpreted in accordance with the laws of the Province of Manitoba, Canada.

a. The parties will use the processes described in this Section ‎28 to attempt to resolve any dispute between the parties arising out of or relating to this Agreement (“Dispute”). If any Dispute arises out of or in connection with this Agreement it shall be referred by one party to the other upon written notice (a “Dispute Notice”) given by one party to the other party. The primary points-of-contact will meet and use good faith, reasonable efforts to resolve the Dispute without escalation within 14 days following receipt of the Dispute Notice. If these efforts do not resolve the Dispute, then each party will designate a representative more senior than its primary point-of-contract, and those representatives will meet and use reasonable efforts to resolve the Dispute within 14 days of referral of the Dispute to those senior representatives.

b. The parties agree that if they are unable to resolve any Dispute as contemplated by Section ‎28 (a), then such Dispute shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules (the “ICDR Rules”) or as otherwise agreed by the parties or ordered by the arbitrator. For the avoidance of doubt, the parties agree that they are not required to participate in mediation. The number of arbitrators shall be one. The seat of arbitration shall be Winnipeg, Manitoba, Canada and the language of arbitration shall be English. The arbitrator shall not be an officer or employee of any party to such Dispute and must have expertise in the field relevant to the Dispute. If within 14 days of a party commencing such arbitration the parties cannot agree upon an arbitrator, the arbitrator will be selected by the process provided in the ICDR Rules. The decision of the arbitrator shall be final and binding upon the parties and there shall be no right of appeal. The fees of the arbitrator shall be borne equally by the parties. Unless otherwise agreed or otherwise determined by the arbitrator, the decision of the arbitrator shall be rendered within sixty (60) days from the date of the closing of the hearing. If grounds for termination of this Agreement are in dispute, no party to such Dispute shall exercise any right of termination until the award of the arbitrator has been rendered.

c. Notwithstanding any Dispute, the parties will continue to perform their respective obligations under this Agreement while the Dispute is being resolved, unless and until such obligations are terminated or expire in accordance with the provisions of this Agreement.

Each of the parties will promptly do, make, execute or deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as the other party may reasonably require from time to time for the purpose of giving effect to this Agreement and will use reasonable efforts and take all such steps as may be reasonably within its power to implement to their full extent the provisions of this Agreement.

It is the express wish of the parties that the Agreement be drawn up in English. La volonté expresse des parties aux présentes est que ce Agreement soit rédigé en anglais. The parties waive any right to use and rely upon any other language.

To the extent applicable, this Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, and all of which taken together will be deemed to constitute one and the same instrument. Delivery of an executed signature page to this Agreement by any party by electronic transmission will be as effective as delivery of a manually executed copy of this Agreement by that party.

Any ambiguity, conflict or inconsistency between the documents comprising the Agreement or contemplated by the Agreement shall be resolved according to the following order of precedence:

• The highest: any applicable Order Form
• The next highest: the Privacy Statement
• The next highest: the Agreement
• The next highest: the applicable Service Levels
• The next highest: the applicable Specifications