Floral Software Holdings d/b/a Komet Sales, LLC

Effective Date: September 1, 2013
Last Updated: March 20, 2024

PLEASE NOTE THAT THE ORDER (IF APPLICABLE) TOGETHER WITH THESE TERMS OF SERVICE (COLLECTIVELY, THIS “AGREEMENT”) GOVERN YOUR USE OF THE SERVICES (AS DEFINED HEREIN BELOW). BY ENTERING INTO AN ORDER OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AND KOMET SALES, LLC OR ITS APPLICABLE AFFILIATE OR SUBSIDIARY, INCLUDING BUT NOT LIMITED TO KOMET SALES SAS, FLORAL COMPUTER SYSTEMS, LLC, UNOSOF, INC., AND CULTIVISTA S.A., (COLLECTIVELY, “KOMET”, “we”, “our”, or “us”) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE SERVICES.

PLEASE FURTHER NOTE THAT THIS AGREEMENT INCLUDES AN ARBITRATION PROVISION AND CLASS ACTION WAIVER, EACH AS FURTHER SET FORTH IN SECTION 12.

 

1. DEFINITIONS.

1.1. “Documentation” means that documentation that is generally provided to you by Komet with the Services, as revised by Komet from time to time, and which may include end user manuals, operation instructions, installation guides, release notes, and on-line help files regarding the use of the Services. Documentation does not include marketing materials.

1.2. “Order” means a purchase order, statement of work, or other ordering document (including any online registration process) that sets forth the Services to be provided by Komet that references and incorporates this Agreement and is accepted by Komet as set forth in Section 4 (Order).

1.3. “Services” collectively means those products and services including any API (as defined in the API Access Addendum) or data derived therefrom we may offer through our website (“Website”) or our mobile application, (“Mobile App”), including any marketplace, ecommerce or communication networks provided by Komet.

1.4. “You” or “your” means the individual and/or entity agreeing to this Agreement and these terms with Komet, whether pursuant to an Order or otherwise.

 

2. LICENSE GRANT; SERVICES.

2.1. General License Grant. Subject to your compliance with this Agreement and any terms set forth in your Order or other agreement with Komet, Komet grants to you a non-exclusive, non-assignable, non-sublicensable right and license to access and use the Services during the Subscription Term (as defined hereinafter) and solely in accordance with the Documentation for your internal business operations. Unless otherwise indicated in the Order, licenses granted to you will commence on the date you are notified of the ability to access and use the Services and does not include the right to download or possess any object or other code. The rights herein are limited by any restrictions set forth in the applicable Order, including any limitation on number of authorized users (as set forth in the Order, “Authorized Users”).

2.2. Ownership. The Services and Documentation, all copies and portions thereof, and all improvements, enhancements, modifications and derivative works thereof, and all intellectual property rights therein, are and shall remain the sole and exclusive property of Komet and its licensors. No rights with respect to the Services or any related intellectual property rights other than those set forth herein are implied. Komet reserves all rights not expressly granted to you.

2.3. Third-Party Services. Komet does not control and is not responsible for any third-party data, content, services, or products (including software) that you access, download, use, receive or buy while using the Services. Komet is not a publisher of third-party content accessed through the Services and is not responsible for the content, data or any other information provided to or by third parties as accessible through the Services. You are responsible for evaluating whether you want to access or use a third-party site or service and any applicable terms or privacy policies applicable thereto. Accordingly, if you decide to use third party sites or services, you do so at your own risk and agree that this Agreement does not apply to your use of any third-party sites or services. You are responsible for purchasing and licensing from applicable third parties the hardware and software required for operation of the Services and for maintaining current license and support relationships with such third parties as required to enable your use of the Services.

2.4. Technical Requirements and Customer-Provided Hardware: You must have the required equipment, software, network connections, and Internet access to be able to use the Services. Acquiring, installing, maintaining, and operating equipment, network connections, and Internet access is solely your responsibility. Any hardware, such as computers, printing components, scanners, and any other devices used, are to be configured and maintained by you. Komet neither represents nor warrants that the Services will be accessible through all web browser releases.

2.5. Changes to this Agreement; Modifications to Services. Komet may change this Agreement at any time and from time to time. For example, we might change this Agreement if there are changes to our Services, our technology, applicable laws, or for other reasons. If we do that, we will give you notice of the updated Agreement through the Services. Any changes will become effective immediately after they are posted and will apply to your use of our Services after the changes become effective, except that changes addressing modifications to our Services or new functions or changes made for legal reasons may be effective immediately, with or without notice to you. Your continued use of our Services after this Agreement has changed means that you accept those changes. If you do not agree to any changes, you cannot continue using our Services. We may discontinue, temporarily or permanently, our Services or any part of our Services, or otherwise change our Services with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of our Services.

 

3. RESTRICTIONS; OBLIGATIONS; ACCEPTABLE USE.

3.1. License Restrictions. Without Komet’s prior written consent, you must not, and must not induce, assist, or allow any third party to, nor allow any third party access to the Service to: (a) make available Services in any form to anyone other than your employees or contractors reasonably acceptable to Komet and that require access to use Services on behalf of you in a matter permitted by this Agreement; (b) transfer or sublicense Services or Documentation to any third party, except as expressly permitted in Section 13.1 (Transfers; Assignment); (c) use Services in conflict with the terms, restrictions and other requirements specified herein or in the Documentation and/or Order, including any limitations on Authorized Users; (d) except to the extent permitted by applicable mandatory law, modify, translate, enhance, or create derivative works from the Services, or reverse engineer, decompile, or otherwise attempt to derive source code from the Services; (e) upload any viruses or harmful code or data to the Services or attempt to circumvent any usage limit; (f) violate or circumvent any technological restrictions within the Services; or (g) use the Services or any information or data derived therefrom to develop, create, or otherwise provide a product, platform, portal or service that is or would be competitive with or substantially similar to the Services or the ecommerce portals made available by Komet on the Komet platforms.

3.2. Obligations. You will: (a) be responsible for your Authorized Users’ compliance with this Agreement and for all acts and omissions of such Authorized Users as if they were your acts or omissions; (b) be responsible for the accuracy, quality, and legality of the data you input into the Services, the means by which you acquired such data, and ensuring that you have sufficient rights, authorizations and consents necessary to provide such data to Komet for use as specified in this Agreement; (c) implement accepted industry safeguards and security measures to prevent unauthorized access to or use of the Services and any personal data that is made available to you through the Services, and will notify Komet immediately of any unauthorized access or use of which you become aware; (d) use Services only in accordance with this Agreement, any applicable Order, and the Documentation; (e) comply with all laws applicable to your use of the Services, which for the avoidance of doubt includes access to and use of any personal data available therein; and (f) promptly and fully cooperate with Komet and make the necessary personnel and resources available to Komet for Komet to deliver the Services, as reasonably requested by Komet. Komet enforces a zero-tolerance SPAM policy regarding information transmitted through our network. Komet may determine in its sole discretion whether any transmissions are considered SPAM. SPAM includes, but is not limited to, the following: (1) bulk unsolicited e-mail, promotional material, or other forms of solicitation sent via the Services, or e-mail that advertises any IP address belonging to Komet or any URL (domain) that is hosted by Komet; (2) the use of web pages set up on ISPs that allow SPAM-ing that directly or indirectly reference customers to domains or IP addresses hosted by Komet; or (3) forging or misrepresenting message headers, whether in whole or in part, to mask the true origin of the message. If Komet determines that you have posted one or more articles of SPAM, Komet may cancel your account immediately and take steps to prevent you from using our network at any time thereafter.

3.3. Your Content. As between you and Komet, you represent and warrant that you own the information, materials, photos, or other content (the “Content”) you provide Komet under this Agreement. By providing Content to Komet, you represent and warrant that you are entitled to submit it and that it is not confidential and not in violation of any law, contractual restrictions or other third-party rights (including any intellectual property rights, data privacy, or personal data rights). Komet may also remove or delete your Content from the Services at any time in its sole discretion.  Any Content that you upload or otherwise provide to Komet in connection with the Services may be used by Komet in order to provide and promote the Services or Komet’s business. Accordingly, you grant to Komet, and all of its subsidiaries, affiliates, successors, and assigns, a worldwide, perpetual, royalty-free, fully paid, sublicensable, non-exclusive, and transferable right to use, publish, reproduce, distribute, modify, prepare derivative works of, adapt, publicly display and otherwise use the Content as needed to perform our obligations or exercise our rights under this Agreement. Further, you hereby grant us the right to use the Content, both during and following the Subscription Term, (i) in connection with creating aggregated data sets, metadata or any other derivative works for the use by Komet or its partners, which, as between you and Komet, shall be owned solely by Komet (subject to your retained ownership of the Content upon which such derivatives are based), and (ii) in connection with Komet’s promotional or advertising efforts. Additionally, you authorize us to use your corporate logo and corporate name, if applicable, for any promotional purposes (to opt-out, email us at privacy@kometsales.com). Notwithstanding the foregoing, you retain all rights to the Content, except as otherwise provided herein or as otherwise provided in any other agreement between you and Komet. Any Content you submit to us is provided at your own risk of loss. You are solely responsible for all Content you share, provide, display, publish, or disseminate to others, whether such action was taken by Komet or you.

3.4. Accounts; Access Credentials. Except for your Content licensed to Komet as set forth above, the account you (and your Authorized Users) create and any related profile is owned by Komet (“Komet Account”). Each Authorized User should have their own Komet Account. With regard to your Komet Account, you (and your Authorized Users) agree to: (i) keep your passwords secure and confidential; (ii) not permit others to use your Komet Account; (iii) not use the accounts of others; (iv) not transfer your Komet Account to another party; (v) not to share Komet Accounts among multiple internal users without the requisite number of seats, and (vi) immediately notify Komet of any actual or suspected unauthorized use of your Komet Account. You further agree not to circumvent or aid any third party in circumventing Komet’s access controls to the system.  You are responsible for any activity occurring under your and any Authorized User’s Komet Account. You acknowledge and agree that you and your Authorized Users are solely responsible for protecting your respective passwords and other personal information and for the consequences of not protecting such data.

3.5. Interactions with Other Users. You are solely responsible for all interactions and transactions with other users. You acknowledge and agree that Komet does not have an obligation to verify any content or other information provided by users on the Services. Komet may offer various forums which allow you to post comments. Komet also enables sharing of information by allowing users to post content and information, including links and other information. Pursuant to the license granted by you above, Komet may grant other users of the Services access and share rights to your Content in accordance with this Agreement, your settings and the nature of your connection with such other users. Additionally, Komet is not responsible for the truthfulness, accuracy, authenticity, or completeness of any of the content or any other information provided by other users or any other third party.  You agree that you are solely responsible for your interactions or transactions with any other user of or through the Service, including without limitation verifying the identity of such user or using or relying on any information or content provided to you by another user of the Service, or that you provide to another user of the Service or any third party, and Komet will have no liability or responsibility with respect thereto. Komet reserves the right, but has no obligation, to become involved in any disputes between you and any other user of the Service.

3.6. Monitoring. Komet has no obligation to monitor your use of the Services. Komet uses technological means to track user activity in the Services. Komet may at all times or at any time monitor, review, retain and disclose any information as necessary to confirm compliance with this Agreement and to satisfy or cooperate with any applicable law, regulation, legal process or governmental request.

3.7 Competitive Services. During the Subscription Term, you agree that you will not (a) market, promote, develop, create, or otherwise provide a product, platform, portal or service, or (b) induce any other third party to use any product, platform, portal, or service, that is competitive with or substantially similar to the Services or the ecommerce portals made available by Komet on the Komet platforms. Any violation of this provision shall be considered a material breach of this Agreement, and Komet shall have the right to take appropriate legal action, including seeking injunctive relief.

 

4. ORDER.

4.1 Order. Your Order, if applicable, is subject to this Agreement. No Orders are binding on Komet until accepted by Komet. Orders for Services are deemed to be accepted upon Komet’s delivery of the Services included in such Order.

4.2 Legacy Customers. Legacy customers may have established a Komet Account for the Services without a written Order (the “Legacy Customers”). Legacy Customers acknowledge and agree that the terms and conditions for pricing, billing, Subscription Term (as defined below), and start date shall be governed by prior documentation or prior established billing practices, as applicable. By continuing to engage in transactions with Komet for the Services, such Legacy Customers acknowledge and agree to be bound by the terms of this provision and all other terms and conditions set forth in this Agreement.

 

5. SUPPORT AND SUBSCRIPTION SERVICES.

5.1. Updates. During the Subscription Term, maintenance and support services will include provision of such updates, bug fixes, patches and other error corrections (collectively, “Updates”) as Komet makes generally available to all licensees of the Services at no additional charge. Komet may develop and provide Updates in its sole discretion, and you agree that Komet has no obligation to develop any Updates at all or for particular issues. You further agree that all Updates will be deemed Services, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Maintenance and support services do not include any new version or release of the Services that Komet may issue as a separate or new product, and Komet may determine whether any issuance qualifies as a new version or release in its sole discretion.

5.2. Exceptions. Komet has no obligation to provide maintenance and support services, including Updates: (a) for or related to any software or other products you have obtained from any third party; (b) if you are in actual or alleged breach under this Agreement; or (c) to the extent you have not paid or agreed to pay any fees associated with such maintenance or support services.

 

6. WARRANTIES.

6.1. Services Warranty and Remedy. During the Subscription Term, Komet warrants to you that the Services will substantially conform to the applicable Documentation in all material respects, provided that the Services have been properly used at all times in accordance with the applicable Documentation. Komet shall not be in breach of the foregoing warranty if any nonconformance with the foregoing warranty is caused by an update, add-on, integration, product, software, or service not provided by Komet. Komet will, at its own expense and as its sole obligation and your exclusive remedy for any breach of this warranty, either replace the Services or correct any reproducible error in the Services reported to Komet by you in writing during the Subscription Term. If Komet determines that it is unable to correct the error or replace the Services, Komet will refund to you a pro-rated amount paid by you for the Services covering the unused, remaining portion of the Subscription Term, in which case the license to those Services will terminate.

6.2. Disclaimer of Warranty. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. OTHER THAN AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KOMET AND ITS PROVIDERS MAKE NO OTHER WARRANTIES UNDER THIS AGREEMENT, AND DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. KOMET AND ITS PROVIDERS DO NOT WARRANT THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, OPERATE UNINTERRUPTED, BE SECURE, BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, BE FREE FROM DEFECTS OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. KOMET SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO UPTIME, CAPACITY OR FUNCTIONALITY OF (I) THE SERVICES, (II) ANY MOBILE OR APPLICATION-BASED VERSIONS OF THE SERVICES OR (III) THE PERFORMANCE, QUALITY AND RESULTS OF THE SERVICES FOR YOUR BUSINESS. YOU ARE NOT ENTITLED TO ANY DAMAGES, OFFSETS OR REDUCTIONS IN FEES AS A RESULT OF ANY DOWNTIME, INTERRUPTION, OR FAILURE OF THE SERVICES. NO ADVICE, COMMUNICATION, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KOMET OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. FURTHER, AND WITHOUT LIMITING THE FOREGOING, KOMET AND ITS PROVIDERS DO NOT WARRANT THAT THE SERVICES OR ANY CONTENT OR DATA PROVIDED OR EXPORTED THEREFROM, INCLUDING WITHOUT LIMITATION ANY APIS (AS DEFINED IN THE API ADDENDUM) IS ACCURATE, RELIABLE OR CORRECT. ANY CONTENT, DATA, OR API DOWNLOADED, EXPORTED OR OTHERWISE OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY SUCH USE INCLUDING WITHOUT LIMITATION SHARING OR EXPORTING DATA OR APIS DERIVED FROM THE SERVICES WITH ANY THIRD PARTY, AND ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE FOR ANY LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD, CONNECTION OF THE SERVICES, OR ANY OTHER USE OF THE SERVICES. KOMET AND ITS PROVIDERS DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE. KOMET WILL NOT BE A PARTY TO ANY TRANSACTION OR INTERACTION BETWEEN YOU AND ANY OTHER USER OF THE SERVICES OR ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

 

7. INDEMNIFICATION.

7.1. Defense and Indemnification. Subject to the remainder of this Section 7 (Indemnification), Komet shall defend you against any third party claim that the Services infringe any patent, trademark or copyright of such third party, or misappropriates a trade secret (but only to the extent that the misappropriation is not a result of your actions) under the laws of the United States (“Infringement Claim”) and indemnify you from the resulting costs and damages finally awarded against you to such third party by a court of competent jurisdiction or agreed to in settlement. The foregoing obligations are applicable only if you: (a) promptly notify Komet in writing of the Infringement Claim; (b) allow Komet sole control over the defense for the claim and any settlement negotiations; and (c) reasonably cooperate in response to Komet requests for assistance. You may not settle or compromise any Infringement Claim without the prior written consent of Komet. 

7.2. Remedies. If the alleged infringing Services become, or in Komet’s opinion are likely to become, the subject of an Infringement Claim, Komet will, at Komet’s option and expense, do one of the following: (a) procure the rights necessary for you to make continued use of the affected Services; (b) replace or modify the affected Services to make it non-infringing; or (c) terminate the license to the affected Services and discontinue the related support services, and, upon your certified deletion of the affected Services, refund a pro-rated portion of the fees paid by you for the unused, remaining portion of the Subscription Term as of the effective date of termination. Nothing in this Section 7.2 (Remedies) shall limit Komet’s obligation under Section 7.1 (Defense and Indemnification) to defend and indemnify you, provided that you replace the allegedly infringing Services upon Komet’s making alternate Services available to you and/or you discontinue using the allegedly infringing Services upon receiving Komet’s notice terminating the affected Services.

7.3. Exclusions. Notwithstanding the foregoing, Komet will have no obligation under this Section 7 (Indemnification) or otherwise with respect to any claim based on: (a) a combination of Services with non-Komet products (other than non-Komet products that are listed on the Order and used in an unmodified form); (b) use for a purpose or in a manner for which the Services were not designed; (c) any modification to the Services made without Komet’s express prior written approval; (d) any Services provided on a no charge, beta or evaluation basis; or (e) any infringement claims or any other claims with respect to your Content or the content provided by any other third-party user of the site. THIS SECTION 7 (INDEMNIFICATION) STATES YOUR SOLE AND EXCLUSIVE REMEDY AND KOMET’S ENTIRE LIABILITY FOR ANY INFRINGEMENT CLAIMS OR ACTIONS.

7.4. Your Indemnification. Notwithstanding any other provision of this Agreement, and without restricting other remedies available to Komet, to the fullest extent permitted by law, you agree to defend, indemnify and hold harmless Komet and its employees, contractors, agents, officers and directors, and providers from and against any and all claims, damages, demands, suits, actions, obligations, losses, liabilities, penalties, interest, costs, debts, and expenses (including but not limited to attorney’s fees) (collectively, “Claims”) arising out of or relating to: (a) your actual or alleged violation or breach of any provision of this Agreement; (b) your violation of any applicable law; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights, intellectual property rights, data privacy, contractual, or common law rights; (d) any claim that our use of or access to your Content pursuant to this Agreement violates, infringes or misappropriates any third party's rights, including without limitation any right of privacy, publicity rights, intellectual property, data privacy, contractual, or common law rights; (e) any Content that is submitted via your Komet Account or otherwise to the Service or Komet, including without limitation any misleading, false, fraudulent, or inaccurate information, or any Content that violates any third-party right or applicable law; (f) your interaction or transaction with any other user of the Services; (g) any claim made by any other user of the Services against Komet relating to or arising from any relationship or transaction between you and the other user through the Services; (h) your contractual or other relationships between you and your customers; (i) your fraudulent or willful misconduct, including without limitation any fraudulent transactions or other fraudulent use of the Services; (j) your use of and activity on your Payment Processor Connected Account (as defined below), whether initiated by you or not; (k) your use of any API or other data or sharing of any API or other data that is obtained through the Services or related to the Services with any third party; and/or (l) any other person’s access to and use of the Service with your unique username, password or other appropriate security code. We will have final decision-making authority with respect to any such Claims. 

 

8. ECONOMIC TERMS.

8.1. General. You shall pay the fees set out in the applicable Order or otherwise agreed to by you from time to time. To the extent your use of the Services exceeds the usage limits provided for in your Order(s), Komet reserves the right to recover such fees and charge you standard and overage fees for any such excessive use.

8.2.  Fees.  In addition to any fees referenced herein, any other fees associated with your Komet Account and the terms governing all fees can be found on the Pricing Schedule section of our Website.

8.3.  Payment; Payment Credentials. You shall make all payments in U.S. dollars. Unless otherwise expressly agreed to in an Order, (1) payment of subscription fees are due, according to the payment terms specified in the Order, and (2) payment for any other amounts owed shall be due upon receipt of the corresponding invoice. Fees are non-cancelable and non-refundable, and you will remain responsible for all agreed-upon fees through the end of the corresponding Subscription Term, regardless of whether this Agreement is terminated early. Fees and expenses due from you under this Agreement may not be withheld or offset by you against other amounts for any reason. Komet may charge your form of payment for subsequent charges you authorize, such as Komet Account upgrades or other special charges authorized by you. If the payment method you use with Komet reaches its expiration date and you do not edit the applicable information, you authorize us to continue billing that payment method and you remain responsible for any uncollected amounts.

8.4.  Komet Payments. You agree that Komet may engage third-party service providers to  provide payment processing services (“Payment Processors”) through which you may process payment transactions (“Komet Payments”) through the Services.  We reserve the right to change a Payment Processor at any time, in which case you agree to take whatever steps as we may advise in order to migrate the Komet Payments to another Payment Processor.

8.4.1. To connect to our Service and process Komet Payments through Payment Processors, we will create a Payment Processor account (“Payment Processor Connected Account”) for you that is connected to the Services. You will be required to accept the terms of the applicable Payment Processor agreement and the applicable Payment Processor Terms of Service as well as other documentation that the Payment Processor may require (collectively, the “Payment Processor Documentation”). You agree to comply with the Payment Processor Documentation and not to engage in any activity that is expressly prohibited by the Payment Processor Documentation. A Payment Processor processes your personal information with its own applicable privacy policy. A Payment Processor may deny the creation of a Payment Processor Connected Account or may suspend or terminate a Payment Processor Connected Account in its discretion in accordance with the Payment Processor Documentation.

8.4.2. You are responsible and liable to Komet for all activity on your Payment Processor Connected Account, whether initiated by you or not, including all transactions, disputed transactions, refunded transactions, reversed transactions, associated fines and any use of the Services in a manner prohibited under this Agreement or your Payment Processor Documentation.

8.4.3. You agree that we can directly access your Payment Processor Connected Account’s dashboard, including information about your transactions (including purchases and refunds) and Payment Processor account balance (“Payment Processor Connected Account Data”), in order to collect fees, process payments and refunds, handle disputes, process chargebacks, and any other activity necessary to provide Komet Payments or other Services in accordance with this Agreement and our Privacy Policy, and you give us express authorization to conduct any of the above activities on behalf through your Payment Processor Connected Account.

8.4.4. We may exchange Payment Processor Connected Account Data with the Payment Processor as necessary to detect and prevent fraud, misuse, unlawful, abusive or deceptive activity, and otherwise to allow Komet and the Payment Processor to each comply with our legal and regulatory obligations.

8.4.5. You represent and warrant that all information provided to Komet or the Payment Processor in connection with the creation or maintenance of a Payment Processor Connected Account is true and accurate in all material respects at all times. You will be responsible for any loss or liability incurred by Komet due to activity conducted through a Payment Processor Connected Account initiated by you or on your behalf, or using your credentials even if not authorized by you, and Komet may deduct such losses from your Payment Processor Connected Account or your Komet Account, or require you to pay such losses to Komet.

8.4.6. You agree to indemnify, defend and hold harmless Komet, the Payment Processor, and their respective affiliates from any claims brought by a third party arising out of any activity conducted through a Payment Processor Connected Account or arising out of your breach of this Agreement or the Payment Processor Documentation.

8.5. Internet Transactions. You acknowledge the inherent risks and responsibilities associated with conducting business via the internet and that there can be no assurance that inquiries or transaction activity will be completely secure, despite security procedures established by Komet or its providers such as firewalls, passwords, and data encryption.  You acknowledge that you are responsible for maintaining all equipment required for your access to and use of your Komet Account.  You authorize Komet and Stripe or any third party acting on behalf of Komet, to serve as an agent in processing transaction instructions received from you via the internet, and to post such transactions to your Komet Account.

 

9. LIMITATION OF LIABILITY.

9.1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL KOMET OR ITS PROVIDERS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU. KOMET’S AND ITS PROVIDERS’ LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL NOT, IN ANY EVENT, EXCEED THE GREATER OF (A) FEES PAID BY YOU FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR (B) $1000. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER KOMET OR ITS PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

9.2. Limitation of Liability Exclusions. The limitations of liability in this Section 9 (Limitation of Liability) shall not apply to: (a) indemnification obligations under the Agreement; (b) fraudulent transactions, gross negligence or willful misconduct; or (c) any liability which may not be excluded by applicable law.

9.3. Further Limitations. You may not bring a claim under or in connection with this Agreement more than eighteen (18) months after the cause of action arises.

 

10. TERM; TERMINATION.

10.1. Subscription Terms. The term for each Order for Services will be set therein and shall begin on the date specified in the Order (“Subscription Term”).  Thereafter, unless either party provides written notice of its intent to not renew at least thirty (30) days prior to the end of the then-current Subscription Term, each Subscription Term shall automatically renew for successive, consecutive twelve (12) month periods.

10.2. Termination for Breach. Either party may terminate this Agreement or an applicable Order upon written notice to the other party if the other party materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice thereof. Material breaches may include, but are not limited to, violations of Section 3.7 (Competitive Services), Section 11 (Confidential Information), and the API Access Addendum Section 2 (API Use Restrictions and Obligations).

10.3. Termination for Insolvency. Either party may terminate this Agreement effective immediately upon written notice to the other party if the other party: (a) terminates or suspends its business; (b) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to control of a trustee, receiver or similar authority; or (c) becomes subject to any bankruptcy or insolvency proceeding.

10.4. Suspension. Komet may deny or restrict your access to all or part of the Services without notice in its reasonable discretion if it deems that you have engaged in any conduct or activities that Komet, in its reasonable discretion, believes violates this Agreement. Such conduct or activities include, but are not limited to, the failure to pay fees when due, fraud, misrepresentations regarding your products marketed using the Services, failure to deliver on commitments to your customers, or other behaviors that Komet in its reasonable discretion believes undermine trust in the Services. If you cease to engage in such conduct or activities (e.g., pay all fees owed and due), Komet, in its sole discretion may reinstate your access to the Services.  However, if you fail to cease engaging in such conduct or activities, Komet shall terminate your access to the Services and you shall have no right to obtain any refund or credit for the subscriptions fees you have paid, and you will remain responsible for all agreed-upon fees through the end of the corresponding Subscription Term.

10.5. Effect of Termination. Termination of this Agreement shall constitute a termination of all outstanding Orders, but termination of an Order shall not terminate this Agreement if any other Order(s) remain outstanding. Upon termination of this Agreement: (a) all rights to all Services granted to you under this Agreement will immediately cease; (b) you must cease all use of all Services, and (c) you must return or destroy all Komet Confidential Information (as defined in Section 11.1 (Confidential Information) below) in your possession or control and certify in writing to Komet that you have fully complied with these requirements. Any provision will survive any termination or expiration if by its nature and context it is intended to survive, including Sections 1 (Definitions), 3 (Restrictions; Obligations; Ownership), 6.2 (Disclaimer of Warranty), 7.4 (Your Indemnification), 9 (Limitation of Liability), 10 (Termination), 11 (Confidential Information), 12 (Dispute Resolution by Binding Arbitration; Class Action Waiver), and 13 (General).

 

11. CONFIDENTIAL INFORMATION.

11.1. Definition. “Confidential Information” means information or materials provided by one party (“Discloser”) to the other party (“Recipient”) which are in tangible form and labelled “confidential” or the like, or information which a reasonable person knew or should have known to be confidential, including without limitation all non-public information relating to business plans, customers and customer lists, data, designs (whether actual, contemplated, experimental, or planned), financial information, forecasts, inventions, know-how, methods, market analysis, pricing, products (whether actual, contemplated, experimental, or planned), prerelease offerings, research and development, security policies and processes, source and object code, and strategies of the Discloser. With respect to Komet, the following information shall be considered Confidential Information whether or not marked or identified as such: (a) information regarding Komet’s pricing, product roadmaps or strategic marketing plans; and (b) non-public materials relating to the Services.

11.2. Protection. Recipient may use Confidential Information of Discloser: (a) to exercise its rights and perform its obligations under this Agreement; or (b) in connection with the parties’ ongoing business relationship. Recipient will disclose the Confidential Information of Discloser only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient will implement means designed to protect Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature but with no less than reasonable care.

11.3. Exceptions. Recipient’s obligations under Section 11.2 (Protection) with respect to any Confidential Information will terminate if Recipient can show by written records that such information: (a) was already known to Recipient at the time of disclosure by Discloser; (b) was disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) was independently developed by Recipient without access to, or use of, Discloser’s Confidential Information. In addition, Recipient will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court of similar judicial or administrative body, provided that Recipient notifies Discloser of such required disclosure promptly and in writing and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.

11.4. Feedback; Analytical Data. You acknowledge and agree that any suggestions, enhancements, requests, recommendations, corrections, or other feedback provided by you or your Authorized Users relating to the operation, functionality, or performance of the Services may be freely used by Komet without restriction, accounting, or payment of any kind. You further acknowledge and agree that Komet may collect and compile data related to or derived from monitoring your access to and use of the Services (“Analytical Data”) for statistical and performance analysis, improvement of the Services, development of new products and services, detection and prevention of fraudulent use of the Services, and for any other lawful purpose. As between you and Komet, all right, title and interest in Analytical Data, together with all performance data, metadata, transactional data, ecommerce data generated through utilization of the Services or as a derivative or compilation work derived from the Content belong to and are retained solely by Komet.

11.5. Privacy. Notwithstanding the terms of this Section 11 or anything else to the contrary herein, Komet’s Privacy Policy (“Privacy Policy”), available at https://www.kometsales.com/pages/privacy-policy, is incorporated by reference into this Agreement. You acknowledge and agree that Komet may collect and use information as contemplated in the Privacy Policy. In the event of a conflict between this Agreement and the Privacy Policy, the Privacy Policy shall supersede and control.

 

12. Dispute Resolution by Binding Arbitration; Class Action Waiver. 

 

YOU MUST READ THIS SECTION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND KOMET.  YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS SECTION AS PROVIDED IN SECTION 12.3 BELOW.

12.1. Election to Arbitrate; No Jury Trial. This Section 12 is referred to in this Agreement as the “Arbitration Provision.” You agree that any and all disputes or that have arisen or may arise between you and Komet, whether arising out of or relating to this Agreement (including any alleged breach) or your use of the Services, any aspect of the relationship, or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Provision, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Provision does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf.

 You agree that, by entering into this Agreement, you and Komet are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not by a judge or jury.

12.2. Applicability of Federal Arbitration Act; Arbitrator’s Powers. This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed and enforceable under the Federal Arbitration Act (“FAA”).  The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations.  The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision.  The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court.  The arbitrator shall take steps to reasonably protect confidential information.

12.3. Opt-Out of Arbitration Provision. You may opt-out of this Arbitration Provision for all purposes by sending an arbitration opt-out notice to 8400 NW 36^th Street #450, Doral, FL 33166 AND via email to support@kometsales.com within thirty (30) days of the date of your electronic acceptance of this Agreement. The opt-out notice must clearly state that you are rejecting arbitration; identify this Agreement to which it applies by date; provide your name, address, and company name; and be signed by you. You may send an opt-out notice in any manner you see fit as long as it is received at the specified address within the specified time. No other methods can be used to opt-out of this Arbitration Provision. If the opt-out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt-out notice on your behalf.

12.4. Class Action Waiver. YOU AND KOMET AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND KOMET AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIMS.

12.5. Pre-Arbitration Dispute Resolution; Required Notice to Komet. Komet is always interested in resolving disputes amicably and efficiently, and most user concerns can be resolved quickly and to the user’s satisfaction by emailing customer support at support@kometsales.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other a written Notice of Dispute (“Notice”). The Notice to Crew should be sent support@kometsales.com (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute and (b) set forth the specific relief sought. If you and Komet do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Komet may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Komet or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you are or Komet is entitled.

12.6. Arbitration Procedure. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Provision, the terms of this Arbitration Provision will control unless the arbitrator determines that the application of the inconsistent Arbitration Provision terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Provision. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

Unless Komet and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of each’s ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, Komet agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

12.7. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Provision. If the value of the relief sought is $75,000 or less, at your request, Komet will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Komet will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Komet will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.

12.8. Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator will be strictly confidential for the benefit of all parties.

12.9. Survival and Severability of Arbitration Provision. This Arbitration Provision shall survive the termination of these Terms.

If a court or the arbitrator decides that any term or section of this Provision (other than Section 12.4) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Provision will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of Section 12.4 are invalid or unenforceable, then the entirety of this Arbitration Provision will be null and void, unless such sections are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms will continue to apply.

12.10. Future Changes to Arbitration Agreement. Notwithstanding any provision in this Agreement to the contrary, Komet agrees that if it makes any future change to this Arbitration Provision (other than a change to the Notice Address) while you are a user of our Services or products, you may reject any such change by sending Komet written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement).

 

13. GENERAL.

13.1. Transfers; Assignment. You may not assign this Agreement, any Order, or any right or obligation herein or delegate any performance without Komet’s prior written consent, which consent will not be unreasonably withheld. Any other attempted assignment or transfer by you will be void. Komet may use its affiliates or other sufficiently qualified subcontractors to provide services to you, provided that Komet remains responsible to you for the performance of the services.

13.2. Notices. Any notice delivered by Komet to you under this Agreement will be delivered via mail or email. Any notice delivered by you to Komet will be delivered to the Komet address set forth in the applicable Order.

13.3. Waiver; Severability. Failure to enforce a provision of this Agreement will not constitute a waiver. If any part of this Agreement is held unenforceable, the validity of all remaining parts will not be affected.

13.4. Compliance with Laws; Export Control; Government Regulations. Each party shall comply with all laws applicable to the actions contemplated by this Agreement. You acknowledge that the Services are provided subject to the U.S. Export Administration Regulations, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. You represent that you are not, and are not acting on behalf of, (a) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions, or (b) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List.

13.5. Construction. Section headings in this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” and words of similar import mean “including, but not limited to”.

13.6. Governing Law; Venue. This Agreement is governed by the laws of the State of Florida, United States of America (excluding its conflict of law rules), and the federal laws of the United States. To the extent permitted by law, the state and federal courts located in Miami, Florida will be the exclusive jurisdiction for disputes arising out of or in connection with this Agreement.

13.7. Third Party Rights. Other than as expressly set out in this Agreement, this Agreement does not create any rights for any person who is not a party to it, and no person who is not a party to this Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.

13.8. Order of Precedence. With respect to any inconsistency between this Agreement and an Order, the terms of the Order shall supersede and control over any conflicting or additional terms and conditions of this Agreement.

13.9. Entire Agreement. This Agreement, including accepted Orders and any amendments hereto, contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding the subject matter hereof. This Agreement may be amended only in writing signed by authorized representatives of both parties.

13.10. Contact Us.  You may contact us by email at support@kometsales.com.

 

API Access Addendum

The following terms shall apply with respect to your access to any applications programming interfaces (“APIs”) made available by Komet, which access may be granted or revoked in Komet’s sole discretion. Komet’s provision of the APIs shall constitute part of the “Services” under this Agreement.

1.    API Access

a.     Grant of Access. Subject to the terms and conditions of this Agreement and any other agreements you enter into with respect to accessing the APIs, Komet grants you a limited, non-exclusive, non-transferable, revocable license to access and use Komet's APIs solely in connection with your use of the Services. The scope of the API access shall be as described in the corresponding Documentation (as applicable), and Komet may modify the API features, functionality, or availability at its sole discretion.

b.    Right to Revoke or Suspend Access. Komet reserves the right, at its sole discretion, to revoke or suspend your access to the APIs at any time, with or without notice, for any or no reason, including but not limited to your breach of this Agreement, unauthorized or excessive use of the APIs, or any activity that Komet determines may harm its business, users, or third parties. In the event of revocation or suspension, you shall immediately cease all use of the APIs and delete all copies of the API Documentation and related materials.

c.     No Liability for APIs or Data. You are solely responsible for downloading, exporting, sharing, relying on or otherwise using any APIs or data provided by the Services, including exporting or sharing such APIs or data with any third party. Any use is at your own risk. Komet makes no representation or warranty as to the validity, accuracy, or reliability of any such APIs or data. Under no circumstances will Komet be liable to you, any other user of the Services, or any third party in any way for the use of any such APIs or data.

 

2.    API Use Restrictions and Obligations

a.     General Restrictions. You shall not (i) modify, reverse engineer, or create derivative works based on the APIs; (ii) distribute, sell, sublicense, lease, or otherwise transfer the APIs to any third party or share access with any third party; or (iii) use the APIs for any unlawful or unauthorized purpose or in breach of this Agreement. You shall comply with all applicable laws and regulations, including data privacy laws, in connection with your use of the APIs.

b.     Competing Portal, Software, and Services Restrictions. Except to the extent expressly permitted, you shall not, directly or indirectly, access or use the APIs or allow any other user or third party to access or use the APIs to set up, operate, or otherwise engage in the provision of an ecommerce or payments portal, software, or service serving third-party buyers or sellers that competes with or is substantially similar to those provided by Komet. Any violation of this provision shall be considered a material breach of this Agreement, and Komet shall have the right to take appropriate legal action, including seeking injunctive relief.

c.     Security Obligations. You shall implement and maintain appropriate security measures to prevent unauthorized access to the APIs, including compliance with industry-standard security protocols. You shall promptly notify Komet of any known or suspected security breaches or unauthorized use of the APIs.

3.    Network Transactions

a.     Charges for Network Transactions: Network Transactions facilitated or conducted through the APIs will be subject to the Network Transaction Fees in accordance with the Agreement and applicable Order(s). You agree that to the extent any third party accesses the APIs using your credentials, that you will be liable for any charge fees which accrue as a result.