Terms of Service

DROPSHIP COMMERCE

These Terms of Service, together with the signed Order Form between DS Co. (“DropShip Commerce”) and Customer, constitute a legally binding agreement between DropShip Commerce and Customer (the “Agreement”), effective as of the date of the last signature on the Order Form (the “Effective Date”). DropShip Commerce and Customer are referred to in these Terms of Service individually as a “Party” and collectively as the “Parties.”

DEFINITIONS In addition to words and phrases defined elsewhere in the Agreement, the following words and phrases shall have these meanings:
1. “Access” means any occurrence in which Customer or any of its Permitted Users logs onto or otherwise accesses any of DropShip Commerce’s Services.
2. “Affiliate” means any Person directly or indirectly controlling, controlled by, or under common control with another Person.As used herein, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to the Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the Person’s management and policies, whether through the ownership of voting securities or by contract or otherwise.
3. “Copy” means any copy or other reproduction, in whole or in part, of the specified item or information, whether made by mechanical or any other means.
4. “Derivative Product” means a computer program or any other work or authorship, whether in Source Code, Object Code, or other form, that constitutes a Modification of any Source Code.Without limiting the generality of the foregoing, a “Derivative Product” includes any revision, modification, translation, abridgment, condensation, expansion, or other “derivative work,” as defined in United States copyright law (as amended).
5. “Documentation” means any and all documentation and other written materials pertaining to the Portal or the Services that DropShip Commerce provides to Customer pursuant to the Agreement.
6. “Improvement” means any improvement, enhancement, derivative work, error correction, bug fix, workaround, or other modification of the DropShip Commerce software associated with the Portal.
7. “Intellectual Property” mean patents, patent rights, patent applications, and continuing (continuation, divisional, or continuation-in-part) applications, re-issues, extensions, renewals, and re-examinations thereof and patents issued thereon; registered and unregistered trademarks and service marks, trademark and service mark rights, trade names, and domain names (“Marks”); registered and unregistered copyrights; trade secrets and inventions, whether patentable or unpatentable; any and all other intellectual, industrial, or proprietary rights as now exist or hereafter come into existence; and pending applications for and registrations of any of the foregoing; whether arising under the laws of the United States or laws of any other state, country, or jurisdiction in the world. All references to a Party’s Intellectual Property rights means all Intellectual Property rights owned worldwide by such Party or under which such Party has the right to grant licenses to the other Party of the scope granted herein without the payment of additional consideration to any Person.
8. “Laws” means any and all applicable federal, state, foreign, and international laws, rules, regulations, codes, statutes, ordinances, requirements, plans, treaties, compacts, proclamations, conventions, orders, and all official interpretations of any and all of the foregoing.
9. “Permitted User” means an individual employed or otherwise retained by Customer who receives Access to any of DropShip Commerce’s Services in compliance with the Agreement.
10. “Person” means any individual, corporation, partnership, trust, limited liability company, association, organization, governmental authority, or other legal entity of any kind.
11. “Portal” means the applicable portal to manage Customer’s drop shipping program, as specified in an Order Form signed between DropShip Commerce and Customer.
12. “Services” means the DropShip Commerce services described in Section 2 below.
13. “Software” means, as the context requires, source code or object code instructions for controlling a computer or other device and other electronic files containing data, text, graphics, or markup language.
14. “Technical Requirements” means the technical requirements set forth in Exhibit A to these Terms of Service, as DropShip Commerce may modify such technical requirements from time to time in its sole discretion.
15. “Territory” means the world, except as may be prohibited by applicable Laws, including without limitation the export and technology control Laws of the United States.
SERVICES. Subject to the terms and conditions of the Agreement, including but not limited to Customer’s timely payment of all fees, DropShip Commerce agrees to provide the following Services to Customer:
1. Integration and Training, Services.
  1. Custom Integration Services. DropShip Commerce agrees to perform the custom integration services (“Integration Services”) listed in the Order Form and detailed in a mutually-agreed project plan (a “Project Plan”), to facilitate Customer’s Access to the Portal as contemplated by the Agreement.DropShip Commerce agrees to perform such Integration Services, up to the number of hours specified in the Order Form or Project plan.For Integration Services that are required or that Customer otherwise requests DropShip Commerce to provide in addition to those specified in the Order Form or Project Plan or beyond the number of hours specified therein, DropShip Commerce agrees to provide such Integration Services to Customer on a time-and-materials basis, in accordance with an additional Project Plan.
  2. Training Services. DropShip Commerce agrees to provide training to Customer with respect to the Portal (“Training Services”), up to the number of hours and the number of Customer participants in the Order Form or Project Plan.Any additional Training Services or materials requested by Customer will be provided by DropShip Commerce or its representatives on a time-and-materials basis at times and locations agreed by the Parties.
  3. Performance; Delays. DropShip Commerce agrees to exercise commercially reasonable efforts to meet the schedule set forth in any Project Plan.If Customer becomes aware of any circumstance(s) that may delay Customer’s completion of any item in a Project Plan or that is otherwise required for DropShip Commerce to complete any item required by the Project Plan, Customer will promptly notify DropShip Commerce of the anticipated delay and the reason(s) for it in writing. If any such delay causes a delay in DropShip Commerce’s timely performance of any item in the Project Plan, the Project Plan schedule will be deemed automatically extended by the same number of days as the Customer delay.
2. Access Services. DropShip Commerce hereby grants to Customer a personal, non-exclusive, non-transferable right, during the Term and in the Territory to allow its Permitted Users to Access the Portal for internal purposes, consistent the Agreement (the “Access Services”).
3. Infrastructure Services: DropShip Commerce agrees to procure and maintain all of the hardware and software that DropShip Commerce deems necessary to configure, service, and maintain the Portal, to provide Access Services to Customer (the “DropShip Commerce System”). DropShip Commerce and/or its lessor(s) will retain ownership of the DropShip Commerce System. DropShip Commerce will maintain the DropShip Commerce System at its own or one or more third-party data-centers.
4. Support Services. DropShip Commerce agrees to provide the Support Services described in Exhibit A below, as DropShip Commerce may modify such Support Services from time to time in its sole discretion.
5. Limitations and Restrictions.
  1. Services not ownership. The rights granted to Customer in the Agreement do not constitute a sale of, or transfer of any ownership interest in or to, the Portal or any associated Software, the DropShip Commerce System, any Documentation, or any portion or Copy of any of them.
  2. Prohibited activities. Unless otherwise expressly provided for in the Agreement, Customer may not engage or permit any third party to engage in any of the following activities: (a) copy any Documentation; (b) modify, translate, or create derivative works of any Documentation; (c) disassemble, decompile or reverse engineer any DropShip Commerce Software; (d) publish, or otherwise make available to any third party, any benchmark testing information or results relating to the Portal; or (e) export or otherwise provide Access to the Portal in violation of any United States export or technology control Laws. Customer may make a reasonable number of copies of Documentation, however, to enable Customer to exercise the rights granted under the Agreement.
  3. All other rights reserved. Except as expressly set forth in this Section 2 or elsewhere in the Agreement, DropShip Commerce grants to Customer no rights or licenses in or to the Portal or any associated Software, the DropShip Commerce System, or any of the Documentation, whether by implication, estoppel or otherwise. DropShip Commerce hereby reserves any and all rights not expressly granted in the Agreement. Except as expressly set forth in the Agreement, nothing in the Agreement shall be construed to restrict or otherwise limit DropShip Commerce from exercising its Intellectual Property rights in the Portal or any associated Software, any Documentation, or any other Intellectual Property associated with its Services, including but not limited to the license, sale, rental, lease, lending, or distribution of, or the provision of services with respect to, the Portal and any Documentation.
COMPANY OBLIGATIONS. In addition to its other obligations set forth in the Agreement, Customer shall have the following obligations with respect to DropShip Commerce’s provision of the Services:
1. Fees and Payment.
  1. Terms. Customer agrees to pay all amounts that the Agreement requires Customer to pay to DropShip Commerce, in U.S. dollars without offsets or deductions of any kind, on the due dates set forth in the Order Form and upon receipt of DropShip Commerce’s invoice for all amounts not included in the Order Form. Any and all amounts not received by DropShip Commerce by the due date shall accrue interest at the rate of one and a half percent (1.5%) per month or the maximum legal rate allowed by law, whichever is less. All purchase orders and invoices under the Agreement shall be subject only to the terms and conditions of the Agreement, regardless of the execution of any purchase order or invoice by one or both Parties, and regardless of any failure of DropShip Commerce to object to any such terms or conditions, except that the Parties may negotiate non-preprinted terms and conditions in a purchase order or invoice, which shall be effective only if and when executed by authorized representatives of both Parties.
  2. Taxes and other assessments. The DropShip Commerce prices and fees set forth in the Agreement are exclusive of all applicable taxes. Customer agrees to pay, and shall indemnify and hold DropShip Commerce harmless from, any and all applicable federal, state, local, and foreign sales, use, value-added, alternative, add-on minimum, transfer, property, franchise, license, excise, import, export, registration, and other taxes, duties, tariffs, and fees that are associated with Customer’s use of the Services and other exercise of Customer’s rights under the Agreement (“Taxes”), but excluding any taxes on DropShip Commerce’s net income, capital, or gross receipts or any withholding taxes required by law if such withholding tax is allowed as a credit against DropShip Commerce’s United States income taxes. For any such withholding taxes, Customer agrees to provide DropShip Commerce all documentation substantiating the withholding and the associated tax remittance. All such properly-documented withholding taxes shall be credited against amounts that Customer owes to DropShip Commerce. If DropShip Commerce is required to remit any Taxes on behalf or for the account of Customer, Customer agrees to reimburse DropShip Commerce within ten (10) days after DropShip Commerce provides Customer written notice and documentation of such remittance.
  3. Invoice disputes. Within ten (10) days from the date of any invoice issued by DropShip Commerce to Customer, Customer agrees to give DropShip Commerce written notice of any dispute Customer may have with respect to such invoice. If Customer fails to do so, the invoice shall be conclusively deemed accurate.
2. Customer System and devices. Customer shall procure and maintain, at Customer’s sole expense, all hardware and Software necessary and appropriate for Customer to maintain its own network environment, all necessary and appropriate connections to the Portal, and all devices that Customer desires to connect with the Portal. Customer agrees that all such hardware and Software will meet the Technical Requirements.
3. Integration and Training. Prior to the start of all Integration Services and Training Services, Customer shall provide all documents, forms, data, images, and other information requested by DropShip Commerce technicians for integration and training with respect to the Access Services, including, without limitation, any information required under the terms of the Agreement. Customer shall make its personnel available for training in accordance with a training schedule approved in writing by Customer and DropShip Commerce. Prior to the start of the Integration Services and Training Services, Customer shall have complied with the Technical Requirements for each Customer network, system, and device that Customer desires to connect with the Portal.
4. Performance of Project Plans.
  1. Project Coordinator. For each Project Plan, Customer shall designate a project coordinator (“Project Coordinator”) who shall be the primary point of contact for DropShip Commerce personnel. The Project Coordinator shall work with the DropShip Commerce personnel to facilitate the provision of Services under the Agreement.
  2. Timely Performance; Delays. DropShip Commerce agrees to exercise commercially reasonable efforts to complete all items required of it in any Project Plan, in accordance with the schedule set forth in such Project Plan. If DropShip Commerce becomes aware of any circumstance(s) that may delay DropShip Commerce’s completion of any item that a Project Plan requires DropShip Commerce to complete or that is otherwise required for Customer to complete any item required by the Project Plan, DropShip Commerce will promptly inform Customer of the anticipated delay and the reason(s) for it in writing. If any such delay causes a delay in Customer’s timely performance of any item in the Project Plan, the Project Plan schedule will be deemed automatically extended by the same number of days as the delay.
5. Security Measures and Access.
  1. Security Measures. Customer agrees to take and to require its Permitted Users to take reasonable and appropriate security measures with respect to the Access Services and the Portal, including but not limited to: (a) granting user and password permissions only to Permitted Users, (b) requiring Permitted Users to use strong passwords, (c) setting system options to require passwords to be changed at regular intervals, (d) deactivating password authorization within twenty-four (24) hours after any Person discontinues employment with Customer or otherwise ceases to be a Permitted User; (e) requiring ongoing scans for Malicious Software on all computers and other devices that are connected to the Portal or are otherwise used for the Access Services, and (f) requiring password-protected screen lockouts after periods of inactivity.
  2. Permitted Users. Customer will take such actions as are necessary to maintain the confidentiality of, and prevent the unauthorized use of, each password and key, including entering into appropriate agreements with its employees who are Permitted Users. Customer will immediately notify DropShip Commerce in writing if Customer determines, or has reason to believe, that an unauthorized Person has gained access to a password or key or gained Access to he Portal. Customer authorizes DropShip Commerce to rely upon any information or instructions set forth in any data transmission using the assigned password or key, without making further investigation or inquiry, and regardless of the actual identity of the Person transmitting the same, in connection with the operation of DropShip Commerce. Use of the assigned password or key, whether or not authorized by Customer, shall be solely the responsibility of and the risk of Customer. Customer agrees to indemnify, defend, and hold harmless DropShip Commerce and its directors, managers, officers, employees, and agents (consistent with Section 8.2 below) from, against, and for any and all losses, costs, damages, expenses (including, without limitation, reasonable attorneys’ fees, expert witness fees, court costs, and other expenses), fines, suits, proceedings, claims, demands, rights of recovery, or actions of any kind or nature (whether based on tort, contract, trade, regulatory, or other law) arising from or relating to any use, misuse, or unauthorized use of Customer’s passwords and keys.
INTELLECTUAL PROPERTY.
1. DropShip Commerce and Third-Party Intellectual Property.
  1. Ownership. Except for the rights expressly granted in the Agreement, DropShip Commerce and its lessor(s) or licensor(s) shall exclusively own and retain all right, title, and interest in and to the Portal and all associated Software, the DropShip Commerce System, and any other DropShip Commerce Intellectual Property used in providing the Services, all related Documentation, and all Intellectual Property rights embodied therein, used thereby or referenced therein. Without limiting the generality of the foregoing, all right, title, and interest in and to all Software, technology, data, and other Intellectual Property developed in the performance of any Integration Services or other Services relating to the Portal, the DropShip Commerce System, or any other DropShip Commerce technology, including but not limited to all source code, object code, API, notes, designs, models, prototypes, drawings, data storage media, listings, technical data, and other work product created in the performance of such Services, and all Intellectual Property rights relating thereto, whether or not created solely by DropShip Commerce or with the participation of Customer and its contractors, shall belong exclusively to DropShip Commerce (“DropShip Commerce Intellectual Property”). The Parties shall take all reasonable actions, at DropShip Commerce’s request and expense, to confirm, perfect, and protect such ownership.
  2. Use of DropShip Commerce Intellectual Property. Except as expressly authorized in the Agreement, neither Customer nor any of its Permitted Users shall copy, sell, assign, sub-license, rent, loan, transfer, use, or provide Access to or use of the Services, the Portal or any associated Software, the DropShip Commerce System, the Documentation, or any other DropShip Commerce property or DropShip Commerce Intellectual Property, without DropShip Commerce’s prior written permission. Any third party Software or other technology shall be subject to the terms and conditions of the license or agreement under which such third party Software or technology, or the use thereof, was made available to DropShip Commerce or to Customer. Except as expressly authorized by DropShip Commerce in writing, such as in a development agreement, neither Customer nor any of its Permitted Users shall (i) disassemble, decompile, or reverse engineer any Software supplied by or given Access to by DropShip Commerce, except to the extent that any such activities are permitted by applicable Laws notwithstanding this prohibition and only after seeking assistance from DropShip Commerce with respect to any interoperability issues, or (ii) create any Derivative Works based on any such Software.
  3. Customer Content and Other Intellectual Property.
  4. Ownership. To the extent that they do not overlap with any DropShip Commerce Intellectual Property, Customer shall own all right, title, and interest in and to any and all ideas, concepts, know-how, documentation, techniques, Confidential Information, and other Intellectual Property relating to Customer and its business, and all Intellectual Property rights therein (“Customer Intellectual Property”). Also, as between DropShip Commerce and Customer, all Customer Data shall be and remain the property of Customer and shall constitute Confidential Information of Customer in accordance with, but subject to, the provisions of Section 5 of the Agreement. DropShip Commerce agrees to take all reasonable actions, at Customer’s request and expense, to confirm, perfect, and protect Customer’s ownership of Customer Intellectual Property and Customer Data. As used herein, “Customer Data” means all electronic data and information that Customer submits to the Portal, other than data or information obtained from DropShip Commerce.
  5. Use of Customer Intellectual Property. DropShip Commerce shall only have such limited, non-exclusive, non-transferable license to use Customer Intellectual Property and Customer Content to the extent necessary to perform the Services contemplated by the Agreement, except as Customer may otherwise authorize in writing. Customer shall obtain from its suppliers, contractors, and other business contacts all consents and authorizations necessary to enable and authorize DropShip Commerce to provide to Customer the Services contemplated by the Agreement. Customer agrees to indemnify, defend, and hold harmless DropShip Commerce and its directors, managers, officers, employees, and agents (consistent with Section 8.2 below) from, against, and for any and all losses, costs, damages, expenses (including, without limitation, reasonable attorneys’ fees, expert witness fees, court costs, and other expenses), fines, suits, proceedings, claims, demands, rights of recovery, or actions of any kind or nature (whether based on tort, contract, trade, regulatory or other Law) arising from or relating to any inaccuracies in any Customer Content, any failure by Customer to obtain any necessary consents or authorizations from its suppliers, customers, contractors, and other business contacts, or any actual or alleged infringement, misappropriation, dilution, or other violation of any third-party Intellectual Property associated with any Customer Content.
  6. Protection of Customer Data. DropShip Commerce agrees to use reasonable security measures to protect Customer Data from unauthorized access and disclosure.
2. IP Notices. Neither Customer nor any of its Permitted Users shall remove any patent, copyright, trademark, or other Intellectual Property rights notice, disclaimer, or warning that is included on or embedded in any part of the Portal or any associated Software, Documentation, or other DropShip Commerce materials, without DropShip Commerce’s written authorization. Similarly, DropShip Commerce shall not remove any patent, copyright, trademark, or other Intellectual Property rights notice, disclaimer, or warning that is included on or embedded in any of Customer’s Intellectual Property or Customer Content, without Customer’s written authorization.
CONFIDENTIALITY.
1. Protection of Confidential Information. Each Party agrees to keep strictly confidential all confidential and proprietary information disclosed to it by the other Party pursuant to the Agreement (“Confidential Information”), to protect the confidentiality thereof in the same manner and to the same extent that it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information), and to use Confidential Information of the other Party solely for proper performance of the Agreement. Confidential Information will be protected under this Section 5.1 only if it is: (a) provided in written or electronic form or in the form of tangible products or materials; and (b) clearly and prominently identified as Confidential Information of the Party at the time of its disclosure by being marked with an appropriate notice. Where Confidential Information is disclosed orally or visually, it will only be protected in accordance with the Agreement if the Party making the disclosure delivers a written summary of all confidential aspects thereof to the other Party within thirty (30) calendar days of such oral or visual disclosure.
2. Exclusions. Except as otherwise provided in the Agreement, the obligations of Section 5.1 shall not apply to any Confidential information that the receiving Party can demonstrate by contemporaneous written records: (a) was generally known to the public before its receipt from the disclosing Party; (b) becomes generally known to the public, through no fault of the receiving Party; (c) was already known by the receiving Party free of any obligation of confidentiality; or (d) was received by the receiving Party without any obligation of confidentiality from a Person (other than the disclosing Party) that lawfully possesses and has the right to disclose such information.
3. Injunctive Relief. Each Party agrees that the unauthorized use, transfer, or disclosure of any Confidential Information of the other Party will cause irreparable injury and render any monetary damages incurred with respect thereto inadequate. In the event of any unauthorized use, transfer, or disclosure, or any threatened unauthorized use, transfer, or disclosure, of any Confidential Information of the other Party, such Party shall be entitled, in addition to any other rights or remedies, at law or equity, as such Party may otherwise have, to equitable relief to protect its interests therein, including, but not limited to, temporary, preliminary, and permanent injunctive relief, without the necessity of establishing irreparable harm or posting bond or other security.
4. Notification. Each Party agrees to notify the other Party promptly in writing in the event that any unauthorized access, disclosure, distribution, possession, alteration, transfer, reproduction, or use of the Confidential Information of the other Party, or any portions thereof, is found or suspected. Each Party also agrees (a) to notify the other Party promptly in writing if any request is made by or through any governmental or quasi-governmental authority, or under any rules or procedures thereof, that would call for the disclosure of any of such other Party’s Confidential Information, and (b) provide reasonable and appropriate assistance to the other Party, at such other Party’s written request and expense, to limit or preclude the required disclosure.
5. Survival. The Parties’ obligations under this Section or one or more third-party will survive the termination of the Agreement for whatever reason and the termination of any rights granted under the Agreement.
PRIVATE LABELING. At its option, Customer may request that DropShip Commerce private label the customer-facing elements of the Access Services using Customer’s Marks, except that all private-labeled Access Services shall also carry the “Powered by DropShip Commerce” logo or a similar DropShip Commerce Mark. DropShip Commerce™ and other DropShip Commerce Marks are Marks owned by DropShip Commerce, and any and all goodwill arising from use of those and any other DropShip Commerce Marks pursuant to this Agreement shall belong solely to DropShip Commerce.
LIMITED WARRANTY; DISCLAIMERS AND LIMITATIONS.
1. Limited Warranty. Subject to Customer’s compliance with the Technical Requirements and the other provisions of the Agreement, DropShip Commerce warrants that the functionality of the Access Services and related components created and provided by DropShip Commerce will substantially conform to DropShip Commerce’s published specifications for them, which DropShip Commerce may update or alter from time to time in its sole discretion. With respect to any Services provided under the Agreement, DropShip Commerce represents and warrants that its employees will use the level of skill and care that would be exercised by independent consultants in the computer and informational technical service industry providing similar services. Except as set forth above (the “Limited Warranty”), DropShip Commerce makes no representations or warranties with respect to the Portal or any associated Software, any related components, the Access Services, or any other Services. If Customer reports any nonconformity with the Limited Warranty to DropShip Commerce in writing within thirty (30) days from the date that (a) DropShip Commerce provides Customer Access Services for the Portal or (b) performs any other Services, DropShip Commerce shall, at its sole discretion and expense, either use reasonable efforts to remedy the nonconformity or refund the price of the affected Service(s). In the event DropShip Commerce elects to provide such a refund to Customer, all of DropShip Commerce’s obligations with respect to the future provisions of such Service(s) (including Access to the Portal) will terminate. THIS REMEDY SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM FOR BREACH OF THE DROPSHIP COMMERCE LIMITED WARRANTY. DropShip Commerce does not represent or warrant that: (x) the Portal or any of the Services will meet all of Customer’s requirements or needs, (y) use of the Portal or the Services will be uninterrupted or error-free, or (z) that all errors in the Portal or related Services will be corrected.
2. DISCLAIMER OF OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, ALL PRODUCTS AND SERVICES PROVIDED BY DROPSHIP COMMERCE PURSUANT TO THE AGREEMENT ARE PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES, IF ANY, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EVEN IF DROPSHIP COMMERCE HAS BEEN INFORMED OF SUCH PURPOSE), ARE HEREBY EXCLUDED IN THEIR ENTIRETIES.
3. LIMITATION OF LIABILITY. IN NO EVENT WILL DROPSHIP COMMERCE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF BUSINESS, PROFITS, OR GOODWILL, EVEN IF DROPSHIP COMMERCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, NOTWITHSTANDING ANY PROVISION OF THESE TERMS TO THE CONTRARY, DROPSHIP COMMERCE’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE NUMBER OF CLAIMS, AND WHETHER SUCH ACTION(S) OR CLAIMS ARE BASED ON BREACH OF CONTRACT, WARRANTY, TORT, OR ANY OTHER THEORY OF LIABILITY, REMEDY, OR RECOVERY, SHALL NOT EXCEED THE FEES ACTUALLY PAID TO AND RETAINED BY DROPSHIP COMMERCE PURSUANT TO THE AGREEMENT FOR THE SERVICES THAT GAVE RISE TO THE CLAIM(S) OR CAUSE(S) OF ACTION. THE PARTIES AGREE THAT THE LIMITATIONS SET FORTH IN THIS SECTION 7 ARE A MATERIAL PART OF THE CONSIDERATION EXCHANGED BY THE PARTIES, WHICH LIMITATIONS SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
4. REFORMATION. IF APPLICABLE LAW DOES NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF WARRANTIES OR OF LIABILITY OF CLAIMS AND DAMAGES AS SET FORTH IN THESE TERMS, THEY SHALL BE REFORMED AND THE WARRANTIES AND LIABILITY OF DROPSHIP COMMERCE SHALL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
5. Survival. The provisions of this Section 7 will survive the termination of the Agreement for whatever reason and the termination of any license granted under the Agreement.
INDEMNIFICATION.
1. DropShip Commerce’s Indemnity Obligations. Subject to the terms and conditions of the Agreement, including without limitation Section 7.3, DropShip Commerce agrees to defend, indemnify, and hold harmless Customer and its directors, officers, managers, employees, and agents against any action brought by any third party against any of them, solely to the extent such action is based on a claim that the Portal or any Services, as provided and used in accordance with the Agreement, infringe(s) any United States patent issued on or before the Effective Date, a Berne convention country copyright, or United States trade secret (a “Covered Claim”). Subject to the limitations contained in Section 7.3, DropShip Commerce shall pay all costs, settlements, and damages finally awarded thereon, including without limitation costs and attorneys’ fees, provided that Customer (a) promptly notifies DropShip Commerce in writing of the Covered Claim, (b) gives DropShip Commerce sole control of the defense and settlement thereof, and (c) provides all reasonable assistance in connection therewith, at DropShip Commerce’s expense. DropShip Commerce shall not settle or compromise any Covered Claim without Customer’s express, written consent, which shall not be unreasonably withheld or delayed. Customer shall have the right to participate, at its expense, in the defense of any Covered Claim, through counsel of its own choosing. If the Portal or any Services are finally adjudged to so infringe, or in DropShip Commerce’s opinion is likely to become the subject of such a claim, DropShip Commerce shall, at its option, either: (i) procure for Customer the right to continue using the Portal or the Service; or (ii) modify them to make them non-infringing, or (iii) refund the fees paid by Customer for their use during the twelve (12) month period preceding the date the Covered Claim arose, and terminate the Agreement. DropShip Commerce shall have no liability regarding any claim arising out of or relating to: (u) use of the Portal or any Services other than as provided in the Agreement or as specified in the Documentation, (v) use of the Portal or any Services in combination with any software, data or other content, or equipment not supplied by DropShip Commerce, if and to the extent that the infringement arises out of such combination, (w) use of any Customer Intellectual Property or Customer Content, (x) any Modification(s) of the Portal, Documentation, or Services not made by, or under the express written directions of, DropShip Commerce; (y) materials, designs, or specifications provided by Customer to DropShip Commerce for its use in performing any Services; or (z) Customer or Permitted User misconduct or negligence. THE PROVISIONS OF THIS SECTION 8.1 STATE THE ENTIRE LIABILITY OF DROPSHIP COMMERCE AND THE EXCLUSIVE REMEDY OF CUSTOMER AND ITS DIRECTORS, OFFICERS, MANAGERS, EMPLOYEES, AND AGENTS RELATING TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
2. Customer’s Indemnity Obligations. Except for Covered Claims, Customer shall defend, indemnify, and hold harmless DropShip Commerce and its directors, officers, managers, employees, and agents from and against any and all claims, demands, or causes of action (including without limitation claims for costs and attorneys’ fees) resulting from, or otherwise arising out of or relating to, the exercise by Customer of the rights granted by DropShip Commerce under the Agreement, including but not limited to any claims resulting from, or otherwise arising out of: (a) Customer’s breach of its warranties or other breach of the Agreement; (b) Customer’s or its Permitted User’s use of the Portal or any Services (i) other than as provided in the Agreement or as specified in the Documentation, (ii) in combination with any software, data or other content, or equipment not supplied by or approved by DropShip Commerce, if and to the extent that the claim arises out of such combination; (c) use of any Customer Intellectual Property or Customer Content; (d) any Modification(s) of the Portal, Documentation, or any Services made by or on behalf of Customer, except under express written direction of DropShip Commerce; (e) materials, designs, or specifications provided by Customer to DropShip Commerce for its use in performing any Services; (f) Customer or Permitted User misconduct or negligence; or (g) any other matters as to which Customer has agreed to provide indemnification in other sections of the Agreement; provided that DropShip Commerce promptly notifies Customer in writing of any such claim, gives Customer sole control of the defense and settlement thereof, and provides all reasonable assistance in connection therewith, at Customer’s expense. Customer shall not settle or compromise any such claim without the prior express, written consent of DropShip Commerce, which shall not be unreasonably withheld or delayed. DropShip Commerce shall have the right to participate, at its expense, in the defense of any such claim, through counsel of its own choosing.
3. Survival. The provisions of this Section 8 will survive the termination of the Agreement for whatever reason and the termination of any license granted under the Agreement.
TERMINATION.
1. Termination. A Party may terminate the Agreement for any reason, or for no reason, upon prior written notice to the other Party. Notwithstanding the foregoing, a party may terminate this agreement for cause if (a) such other Party breaches any provision of the Agreement or breaches any warranty contained in the Agreement (b) such other Party becomes insolvent or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; (c) a petition under any foreign, state, or United States bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended, is filed by such Party and is not resolved within thirty (30) days; or (d) such a petition or an application to appoint a receiver is filed against such other Party by any third party, and such petition or application is not resolved in such other Party’s favor within thirty (30) days of its filing.
2. Effective Date. Termination for breach of Section 4 (Intellectual Property), 5 (Confidentiality), or 10.1 (Non-assignment) shall be effective upon written notice. In all other cases, termination shall be effective thirty (30) days after written notice of termination to the other Party, except for Customer’s failure to pay amounts owed to DropShip Commerce when due, in which case termination shall be effective five (5) business days after written notice, if the payment default has not been cured.
3. Obligations on Termination.
  1. Customer’s obligations. Upon termination of the Agreement for any reason, Customer shall (i) immediately cease any and all Access to the Portal and other Services, and (ii) promptly and permanently destroy or return to DropShip Commerce all Copies of the Documentation.
  2. Confidential Information. Upon termination of the Agreement, the receiving Party shall return all Confidential Information to the disclosing Party (or, at the disclosing Party’s option, destroy it and provide a certification of such destruction signed by an officer of the receiving Party), and shall not be entitled to make or retain any Copies, except as required to comply with applicable Laws or as necessary to enforce the receiving Party’s rights under the Agreement. If the receiving Party retains any Copies, it shall provide written notice to the disclosing Party of the Copies retained and the applicable legal requirements or other necessity for such retention. The requirements of Section 5 shall continue to apply to all Copies retained pursuant to this Section 9.3(b).
  3. Other obligations. All payment obligations and all claims that arose in favor of the Parties or either of them under the Agreement before termination of the Agreement shall survive such termination. The due dates of all outstanding DropShip Commerce invoices to Customer will automatically be accelerated and become due and payable as of the effective date of termination, even if longer terms had been agreed or provided previously. In addition, if the Agreement is terminated for any reason other than a material breach by DropShip Commerce, the Monthly Fees specified in the Order Form for each month that, absent such termination, would have remained in the Term before the scheduled start of the next renewal term shall be accelerated and become immediately due to DropShip Commerce.
4. Assumption or Rejection. If any proceeding under the U.S. Bankruptcy Code (“Bankruptcy Code”) is filed by or against Customer, Customer must assume or reject the Agreement within sixty (60) days after such proceeding is commenced. If Customer does not assume the Agreement within that period, the Agreement shall immediately terminate, unless DropShip Commerce gives written notice of non-termination to Customer within five (5) days. Customer agrees that any payments that become due to DropShip Commerce after any bankruptcy proceeding is filed by or against Customer shall be treated as administrative expenses under Section 503 of the Bankruptcy Code and shall be immediately paid to DropShip Commerce when due, without the need for an application for payment in the bankruptcy court.
GENERAL PROVISIONS.
1. Assignment. Customer shall not assign, transfer, pledge, or encumber any of its rights or delegate any of its duties or obligations under the Agreement, without the prior written consent of DropShip Commerce, which shall not be unreasonably withheld. Any attempt at such an assignment, transfer, pledge, encumbrance, or delegation shall be null and void. For purposes of this Section 10.1, a change in control of Customer, whether through merger, sale of stock, or otherwise, shall be deemed an assignment for these purposes. Subject to the foregoing limitations, the Agreement shall be binding upon and inure to the benefit of the Parties’ successors and permitted assigns.
2. Relationship of Parties. The relationship of the Parties under the Agreement is that of independent contractors, and nothing contained in the Agreement shall be construed (a) to give either Party the power to direct and control the day-to-day activities of the other, (b) to constitute the Parties as partners, joint venturers, co-owners, or participants in any joint or common undertaking, (c) to authorize either Party to accept service of process on behalf of the other Party, or (d) to allow either Party to create or assume any obligation not expressly provided by the Agreement on behalf of the other Party for any purpose. Neither of the Parties and none of their officers, directors, employees, contractors, representatives, agents, or Affiliates shall be deemed to be the employee, agent, representative, or Affiliate of the other Party for any purpose by reason of the Agreement.
3. Non-Solicitation. For the Term of the Agreement and one (1) year thereafter, Customer shall not, without the written consent of DropShip Commerce, solicit, interfere with, or endeavor to entice away any manager, officer, employee, agent, or contractor of DropShip Commerce who has been involved in performing the Agreement, except that Customer may hire a manager, officer, employee, employee, agent, or contractor of DropShip Commerce who, without individual solicitation, responds to an advertisement or solicitation aimed at the general public.
4. Waiver. No failure by a Party to insist on the strict performance of any covenant, duty, agreement, or condition of the Agreement, or to exercise any right or remedy consequent on a breach thereof, shall constitute a waiver of any such breach or any other covenant, agreement, term, or condition. Either Party may, but shall be under no obligation to, waive any of its rights or any conditions to its obligations hereunder, or any duty, obligation, or covenant of the other Party. No waiver shall be effective unless made in writing and signed by a duly authorized representative of the waiving Party. No waiver shall affect or alter the remainder of the Agreement, but each and every other covenant, agreement, term, and condition hereof shall continue in full force and effect.
5. Notices. All notices, authorizations, and requests with respect to the Agreement shall be deemed given: (a) five days after being deposited in the U.S. mail, postage prepaid, certified or registered, return-receipt requested; or (b) one day after being sent by nationally recognized overnight courier, charges prepaid; provided that they are addressed as first set forth above or to such other address as a Party so designates by written notice.
6. Force Majeure. No failure to perform by a Party shall be considered a breach of the Agreement if such failure to perform results from beyond the reasonable control of the Party alleged to be in default, including, but not limited to, labor disputes, civil disturbances, actions or non-actions of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, widespread Internet outage, acts of God, or default of a common carrier. This provision shall not apply to Customer’s payment obligations.
7. Publicity. Customer agrees that DropShip Commerce may issue a press release or other announcement regarding the selection of DropShip Commerce services by Customer. DropShip Commerce shall provide a copy of any such proposed press release or other announcement to Customer at least five (5) business days before issuing it, for Customer’s review and approval, unless Customer agrees to shorten the waiting period. If Customer does not provide DropShip Commerce written notice of any disapproval of the press release or other announcement within that period, it will be deemed approved. Any notice of disapproval by Customer shall specify the reasons for Customer’s disapproval. Customer agrees that DropShip Commerce may use Customer’s name, trademarks and logos in press releases, product brochures, and similar marketing materials, financial reports and prospectuses indicating that Customer is a customer of DropShip Commerce, and may use Customer as a reference for sales and public relations purposes. Except as expressly provided in the Agreement, neither Party shall engage in any other publicity with respect to the Agreement except with the other Party’s express prior written consent.
8. Compliance with Laws. Customer shall comply with Laws applicable to exercise of its rights and the performance of its obligations under the Agreement, including but not limited to U.S. export and technology Laws.
9. Remedies. Except as otherwise expressly set forth in the Agreement, no right or remedy conferred on or reserved to DropShip Commerce is exclusive of any other right or remedy, at law or in equity, but each such remedy shall be cumulative of every other right or remedy now or hereafter existing. None of the provisions of the Agreement are for the benefit of, or are enforceable by, any creditors or customers of a Party or any other third party.
10. Governing Law. The validity, interpretation, construction, and performance of the Agreement shall be governed by the laws of the State of Utah, without reference to its conflicts-of-laws rules. The federal and state courts sitting in Utah County, Utah (or, if there is exclusive federal jurisdiction, the United States District Court for the District of Utah) shall have exclusive jurisdiction and venue over any and all disputes arising under or relating to the Agreement, and Customer irrevocably consents to the personal jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety and does not apply to the Agreement. In any dispute arising under or relating to the Agreement, the prevailing Party shall be entitled to recover its costs, expenses, and reasonable attorneys’ fees. THE PARTIES HEREBY AGREE THAT NEITHER WILL REQUEST A JURY FOR ANY DISPUTE ARISING UNDER OR RELATING TO THESE TERMS AND HEREBY IRREVOCABLY WAIVE ANY AND ALL SUCH RIGHTS TO A JURY TRIAL.
11. Construction of Agreement. The section headings in the Agreement are for convenience only and shall not be considered or referred to in construing the Agreement. As used in the Agreement, the term “day” alone shall mean a calendar day, and the term “business day” shall mean any day other, than Saturday and Sunday, during which banks are open for business in Utah. The Agreement shall be construed as though both Parties had drafted it or had equal opportunity to participate in drafting it.
12. Records. During the term of the Agreement and for a period of three (3) years following the termination of the Agreement, each Party agrees to keep all usual and proper records and books of account and all usual and proper entries and other documentation relating to any and all transactions and other matters contemplated by the Agreement.
13. Survival of Terms. The provisions of the Agreement that by their nature extend beyond the other termination of the Agreement, whether or not expressly stated herein, will survive and remain in effect until all obligations of the Agreement are satisfied.
14. Severability. If any provision in the Agreement is determined by a court of competent jurisdiction to be void, invalid, unenforceable, or illegal, that provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary to eliminate its violability, invalidity, unenforceability or illegality, and the other provisions of the Agreement shall remain unaffected and continue in full force.
15. Entire Agreement. These Terms of Service, together with the Order Form signed between DropShip Commerce and Customer, constitutes the entire understanding and agreement between the Parties with respect to subject matter hereof and supersedes all prior written and oral communications, agreements, proposals, representations, warranties, statements, negotiations, and understandings, with respect thereto.
Customer Support. DropShip Commerce’s Support Services include telephone and e-mail support during normal DropShip Commerce business hours of 8:00am to 5:00pm, Mountain Time (MT), Monday through Friday, excluding holidays observed by DropShip Commerce (“Regular Hours”). Customer may appoint, by written notice to DropShip Commerce, up to three___ (3_) individuals to serve as administrators/support contacts between Customer and DropShip Commerce. Customer Support does not include any customization or development services.
Error Correction.
1. Definitions.
  1. “Error” means DropShip Commerce’s Access Services are not functioning as designed and documented.
  2. “Fix” means the repair or replacement of object or executable code to remedy an Error.
  3. “Severity 1 Error” means an Error that makes the Access Services inoperative. When trying to use the Access Services, a Permitted User is prevented from performing a necessary function, and there is no Workaround.
  4. “Severity 2 Error” means an error in which major functionality is experiencing a reproducible problem that causes major inconvenience to a Permitted User. A Workaround may exist but it has high impact.
  5. “Severity 3 Error” means an Error in which an important function is experiencing an intermittent problem or a common non-essential operation is failing consistently.
  6. “Workaround” means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing use of the Access Services.
2. Error Correction Commitments.
  1. Severity 1 Errors – DropShip Commerce will promptly commence the following procedures upon notification of the Error during Regular Hours and upon confirmation by DropShip Commerce that the Error is a Severity 1 Error: Within the first four (4) business hours, DropShip Commerce will commence documenting, recreating, and attempting to resolve the Error. If a resolution has not been determined after the initial four (4) business hours, DropShip Commerce will mobilize a technical team to troubleshoot the problem and define solution options. DropShip Commerce will assign a company representative to oversee and report on all corrective action activities. A DropShip Commerce company representative will initially notify Customer of problem resolution status and will report on the status every twenty-four (24) hours thereafter, until resolved.
  2. Severity 2 Errors – DropShip Commerce will exercise reasonable efforts to provide a Fix as soon as an Error has been identified and the appropriate Fix developed.
  3. Severity 3 (or lower) Errors – DropShip Commerce will exercise reasonable efforts to include the Fix for the Error in a future release of the software used in the Portal for the Access Services.
3. Customer Obligations. Customer is responsible for providing prompt and sufficient information and data to allow DropShip Commerce to readily reproduce all reported Errors. If DropShip Commerce believes that a problem reported by Customer may not be due to an Error in the Access Services, DropShip Commerce will so notify Customer.
4. Exclusions. DropShip Commerce shall have no obligation to provide Error correction or support with respect to: (a) Access problems caused by Customer’s systems, devices, negligence, abuse, misapplication of Access Services, or any other use of Access Services other than as specified in DropShip Commerce’s Documentation; (b) questions or problems associated with accessing Customer’s systems or devices; or (c) any other circumstances beyond DropShip Commerce’s reasonable control, including but not limited to acts of any governmental body, war, sabotage, embargo, fire, flood, extended unavailability of public utility service or unavailability of or delay in telecommunications, third-party ISPs, third-party software, hardware failures, the degradation or failure of third-party connectivity services, or downtime or Access degradation caused by Customer’s networks or devices or the Internet.
Access Services Uptime. DropShip Commerce will use commercially reasonable efforts to maintain the availability of the Access Services 24 hours a day and seven days a week, except during Scheduled Maintenance (defined below).
1. Downtime. Except for the exclusions described herein, if DropShip Commerce discovers (either from its own efforts or after being notified by Customer) that Customer cannot access the Portal for more than four (4) consecutive hours or are experiencing packet loss in excess of eighty percent (80%) that is sustained for a time period of more than fifteen (15) minutes, then such outage will be deemed downtime (“Downtime”), and DropShip Commerce will all take actions that are reasonably necessary to determine the source of the Downtime.
2. Efforts to End Downtime. If the source of the Downtime is solely DropShip Commerce’s control, DropShip Commerce will use commercially reasonable efforts to remedy the Downtime within four (4) hours of determining the source of the Downtime. If the Downtime is caused from outside of the Portal, DropShip Commerce will notify Customer and will use commercially reasonable efforts to notify the Person(s) responsible for the source of the Downtime and cooperate with it/them to resolve the problem as soon as reasonably possible.
3. Failure to Determine the Source of or Resolve Downtime. If DropShip Commerce is unable to determine the source of and remedy the Downtime within the time period specified above, where DropShip Commerce was solely in control of the source of the Downtime, DropShip Commerce will provide Customer a credit against Monthly Fees payable to DropShip Commerce in the amount of one (1) day of credit for each eight (8) hours of Downtime, upon Customer’s written request.
4. Customer Obligations. Customer will provide all assistance reasonably requested by DropShip Commerce in its efforts to identify the source of and take corrective action with respect to Downtime.
5. Exceptions. DropShip Commerce shall have no responsibility with respect to any of the following: (a) Downtime due to Scheduled Maintenance; (b) Downtime during periods when Customer’s account is not in good financial standing or Customer is in violation of the Agreement; (c) Downtime due to circumstances beyond DropShip Commerce’s reasonable control, including without limitation acts of any governmental body, war, sabotage, embargo, fire, flood, extended unavailability of public utility service or unavailability of or delay in telecommunications, third-party Internet service providers, third-party software, hardware failures, the failure or degradation of third-party connectivity services, or downtime or Access degradation caused by Customer’s networks or devices or the Internet; (d) Downtime caused by Customer’s failure to provide reasonable assistance; or (e) Downtime due to Customer misuse of Services.
Scheduled Maintenance. “Scheduled Maintenance” means any maintenance scheduled and undertaken by DropShip Commerce. DropShip Commerce will notify Customer via email at least forty-eight (48) hours in advance of any Scheduled Maintenance. DropShip Commerce agrees to make reasonable efforts to perform Scheduled Maintenance during historically low use hours based on average use by Customer. DropShip Commerce is permitted to conduct emergency maintenance on an “as needed” basis, and such emergency maintenance shall not be considered Downtime.
Expected Unusual Volume. Customer agrees to inform DropShip Commerce within three (3) business days in advance of when Customer expects there to be unusually high levels of Access to the Portal. Such notice will be made via email to support@dropship.com. Customer’s failure to give such notice will result in a waiver of any credit remedy resulting from any Downtime during such period.
Customer Content Backup. DropShip Commerce will make commercially reasonable efforts to create and protect back-up copies of Customer Content on DropShip Commerce’s servers. However, DropShip Commerce shall have no liability or duty of indemnification related to lost or corrupt Customer Content. Without limiting the generality of the foregoing sentence, this limitation of liability eliminates any duty or liability on the part of DropShip Commerce relating to lost or corrupt Customer Content resulting in whole or in part from third-party software or networking goods or services or from actions or events outside of DropShip Commerce’s reasonable control. Customer has the ability to save certain of its Customer Content for additional backup security, and Customer agrees to do so on a regular basis.

Customer Networks, Systems, and Devices.

Technical Requirements. Customer will ensure that its networks, systems, and each device used to Access the Portal comply with the following technical requirements (the “Technical Requirements”):

CUSTOMER TECHNICAL REQUIREMENTS
Customer will ensure that none of its personal computers (PCs), servers, or other devices that communicate(s) with the Portal are affected by any form of malicious software including, but not limited to, key loggers, rootkits, network scanners, packet sniffers, viruses, or spyware (“Malicious Software”).
Customer will ensure that all Customer PCs, servers, and other devices are routinely checked for Malicious Software using every reasonable measure, including but not limited to automated scanning software.
Customer will ensure that all access to the Portal by any Permitted User will be performed without any malicious intent.
Customer will ensure that all switches and routers used in any Customer system(s) used to access the Portal allow communication with the Portal via secure sockets layer (TCP/IP Port 443).
Customer will ensure that all root certificates are kept up to date on all PCs, servers, and other devices attached to Customer’s system(s) that communicate with the Portal.
Customer shall, upon request, adjust the LAN IP Scheme(s) of Customer and its Permitted Users to avoid possible IP address conflicts with DropShip Commerce’s customer networks.
Customer will maintain persistent high-speed Internet connections at the expense of Customer at all Customer locations that connect with the Portal. Without limiting the generality of the foregoing, the required Internet connection must be a minimum of 500 kbps for each users and increase in increments of 500 kbps for every additional users. For example, 2 users or less would require a 1,000_kbps connection.
Customer shall maintain a local subnet that uses network address translation (NAT) for facilitating all IP-based communication to and from any locations of Customer that connect with the Portal.
Customer will provide firewall security preventing any unauthorized access from hosts outside the local subnet(s) maintained by Customer.

Changes. Customer acknowledges that changes in third-party technology and other events, such as changes in DropShip Commerce technology, may require that the Technical Requirements be modified to ensure proper operation of the Portal and continued compatibility between the Portal and Customer’s networks, systems, and devices. As reasonably required to adapt to evolving technology and technical standards, DropShip Commerce may change such technical requirements at any time upon notice to Customer, and Section 7.1 above shall be deemed to incorporate such updated Technical Requirements. DropShip Commerce will try to provide advance notice of such modifications but may not be able to provide advance notice for correction of Severity 1 or Severity 2 Errors.

Exclusive Remedies. The service level commitments and remedies set forth in this Exhibit A constitute Customer’s sole and exclusive remedies for any Support Services claims.
Service Terms, Not Warranty. The terms and conditions contained in this Exhibit A define a service arrangement and not a product warranty. All Services, products, and materials provided to Customer pursuant to the Agreement are subject exclusively to the warranty provisions of the Agreement, and the terms and conditions of this Exhibit A do not change or supersede any warranties, limitations, and disclaimers contained therein.
Changes in Support Services. DropShip Commerce hereby reserves the right, in its sole discretion, to modify the terms and conditions of its Support Services from what is specified in this Exhibit A. DropShip Commerce agrees to provide notice to Customer of any such modifications. Unless such modified Support Services are more favorable to Customer than those specified in this Exhibit A, in which case they will immediately take effect for Customer, or in cases of changes to the Technical Requirements, which are governed by Section 7.2 above, any such modifications will not become effective as to Customer until Customer’s next Agreement renewal period.