By accessing the Rightfully Platform and using the Services as a Customer or as a Free Trial User, You acknowledge that You have read and understand the Agreement, and that You agree to all the terms of the Agreement. Rightfully reserves the right to change or add to this Agreement at any time, in its sole discretion. You are advised to check the Agreement from time to time for any updates or changes that may impact You. Your continued use of the Service and/or the Rightfully Platform, following changes to the Agreement, constitutes Your agreement to any such changes.
Your violation of or breach of the Agreement may result in the suspension or termination of Your Account or License to use the Service.
1.1 “Account” means Customer’s account with Rightfully for use of the Services by Customer.
1.2 “API” means the application programming interface made available to You by Amazon that facilitates the provision of Services to You.
1.3 “Free Trial User” means a party using the Services in a manner authorized by Rightfully in a limited manner, as determined by Rightfully, in its sole discretion.
1.4 “Customer” means the party authorized under the Agreement to use the Services, including as a Free Trial User.
1.5 “Customer Data” means any and all information, data, materials, works, expressions, documentation, or other content, including any that are (a) uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by or on behalf of Customer for processing by or through the Services, or (b) collected, downloaded, or otherwise received by Rightfully for or from Customer or third party pursuant to this Agreement or at the written request or instruction of Customer, including, without limitation, all personally identifiable information of Customer’s customers, back up, invoices, and packing slips, FBA Inbound Shipment, Discrepancies, and any other documentation of Customer’s shipments and products. For the avoidance of doubt, Customer Data does not include any Technology or Resultant Data.
1.6 “Discrepancies” means when the quantity of Customer’s products shipped (as shown in Customer Data) is greater than the quantity of Customer’s products that Amazon acknowledges it has received.
1.7 “Documentation” means all materials, including drawings, diagrams, specifications, product descriptions, manuals and instruction that Rightfully provides (either in digital or hard copy form) to assist and define Customer’s use of the Services.
1.8 “Eligible Claim” means a date after the Waiting Period (defined in Section 3.1A hereof) so that Discrepancies may be filed as a claim by Rightfully on Customer’s behalf.
1.9 “FBA Inbound Shipments” means the shipments of inventory sent by Customer to Amazon at Amazon’s fulfillment centers to be fulfilled by Amazon.
1.10 “Fees” means the monies due from Customer to Rightfully in the amount of twenty-five percent (25%) of all reimbursements, payments, and credits obtained for the Customer by or through Rightfully and/or the Services. “Additional Fees” means the monies due from Customer to Rightfully for (i) Customer’s use of features or functionality of the Rightfully Platform outside of the scope of the Agreement, and/or (ii) any additional work requested by Customer beyond the scope set forth in the Agreement at an hourly rate set forth in a written addendum signed by both Rightfully and Customer.
1.11 “Rightfully” means YML Solutions LLC doing business as Rightfully or any successor or assignee, subcontractor, independent contractor performing the Services partner, or joint venturer of Rightfully. “Rightfully” also means a third-party intermediary retained by or working with or on behalf of Rightfully, to manage payment processing of Fees and Additional Fees.
1.12 “Rightfully Platform” means the dashboard provided by Rightfully through the Technology.
1.13 “Intellectual Property Rights” means patents, patentable rights, copyright, design rights, utility models, trademarks (including Marks), trade names, rights in domain names, rights in inventions, database rights, rights in know-how and confidential information as described herein, and all other intellectual property and all pending applications for any of the foregoing and including all renewals, extensions, revivals and all accrued rights of action.
1.14 “Insolvency Event” means, in relation to either party, any of the following events: (a) the party commences a voluntary case under title 11 of the United States Code or the corresponding provisions of any successor laws; (b) anyone commences an involuntary case against the party under title 11 of the United States Code or the corresponding provisions of any successor laws and either (i) the case is not dismissed by midnight at the end of the 60th day after commencement or (ii) the court before which the case is pending issues an order for relief or similar order approving the case; (c) a court of competent jurisdiction appoints, or the party makes an assignment of all or substantially all of its assets to, a custodian (as that term is defined in title 11 of the United States Code or the corresponding provisions of any successor laws) for the party or all or substantially all of its assets; or (d) the party fails generally to pay its debts as they become due (unless those debts are subject to a good-faith dispute as to liability or amount) or acknowledges in writing that it is unable to do so.
1.15 “License” means the licenses expressly granted herein by Rightfully to Customer to use the Service.
1.16 “Marks” means any word, symbol or device, or any combination thereof, used or intended to be used by a party to identify and distinguish the party’s or its third-party licensor’s products or services from the products or services of others, including without limitation trade names, trademarks, service marks and logos. “Customer Marks” refer to any Marks of Customer and includes third party marks Customer may provide to Rightfully or that are incorporated in Product Information. “Rightfully Marks” refers to Marks of Rightfully and includes third-party marks Rightfully may provide to Customer.
1.18 “Payment Processing” means facilitating payment of Fees of Additional Fees through Customer’s credit card, bank transfers, or otherwise by Customer to Rightfully.
1.19 “Product Information” means all information and materials specifically related to Customer products that Customer provides or uploads to Rightfully’s Website or otherwise stores in the Rightfully Platform, or that Customer sends to Rightfully in order for Rightfully to perform the Services, or that Customer directs Rightfully to collect on Customer’s behalf, including without limitation image files, text, templates, product descriptions, prices, Customer Marks, URLs and any other related information.
1.20 “Representatives” collectively means the affiliates, directors, officers, shareholders, members, employees, subcontractors, permitted assigns and agents of a party.
1.21 “Resultant Data” means transactional data and information derived from or otherwise related to Customer Data and/or Customer’s use of the Services, by aggregation, algorithmic manipulation or other anonymized processing.
1.22 “Security Obligation” means responsibility for maintaining the security of account login information (username and password).
1.23 “Service” or “Services” means the services to be provided by Rightfully, including, without limitation, reimbursement case management and the functionality of, and Customer’s access to, the Rightfully Platform.
Services shall also include with regards to claims with third party logistics providers (including, but not limited to Amazon.com and its affiliates) related to Your goods, financial transactions, and inventory:
Services also include review and initial evaluation by Rightfully of Your potential eligibility for financing or factoring or additional solutions or services.
Services shall also include updates and upgrades subsequently provided to (i) the entire Rightfully Platform for all customers or (ii) the Technology.
Services shall also include any additional services by Rightfully as identified in any Opt-in-Agreement.
1.24 “Technology” means, collectively, the Rightfully Platform and Services, Documentation, functionality, URLs and integrations that enable Customer access to the Rightfully Platform, Services, analytics, transaction information, and any and all other information, data, documents, materials, works and other content, devices, methods, tools including, without limitation, Doc Master, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports that are provided or used by Rightfully in connection with the Services and any software or technology incorporated in or made available by Rightfully through the Rightfully Platform or Services, expressly excluding Customer Data, Product Information and Customer Marks unless otherwise stated in a writing signed by the parties.
1.25 “Us” means Rightfully.
1.26 “User” or “Users” means the individuals for whom Customer has procured subscriptions to the Services, as identified to Rightfully, and may include, but are not limited to, individuals employed by You or otherwise working for You at Your direction, and who are authorized by You to access and use the Service, including You.
1.27 “You” or “Your” refers to the Customer.
1.28 “We” or “Our” or “Us” refers to Rightfully.
1.29 “Website” means teamrightfully.com or such other website or mobile access point from which Rightfully may make the Service available.
2. LICENSE / RESTRICTIONS / INTELLECTUAL PROPERTY / DATA
2.1 License. Rightfully grants the Customer a limited, non-transferrable, non-exclusive license to use and access the Service solely for Customer’s business purposes subject to the terms, obligations, restrictions and limitations set forth in the Agreement. All rights not expressly granted to You in the Agreement are reserved and retained by Rightfully.
2.2 License Limitations and Restrictions.
(a) Prohibited Actions. Customer shall not:
(b) Notification of Unauthorized or Breaching Use. You must notify Us immediately in the event that You become aware of any actual or attempted unauthorized access to or use of the Service, Rightfully Platform, or Technology in breach of this Agreement.
(c) Technology; Source Code. Except as expressly stated in the Agreement, no licenses or rights are granted by Rightfully and nothing in the Agreement implies any license to Customer in the Technology, including, without limitation, the source code. The source code will not be accessible to any Customers or Users. Customer agrees that the underlying structure, sequence, organization and source code of the Technology are valuable trade secrets of Rightfully, are confidential information, and shall remain strictly confidential.
2.3. Intellectual Property Ownership.
(a) Customer’s Rights. Customer owns all right, title and interest in the Product Information, Customer Data, and Customer Marks. Customer acknowledges and agrees that, in connection with the provision of the Services, Rightfully may store and maintain Customer Data and Product Information for a period of time consistent with Rightfully’s standard business practices for the Services. Customer grants Rightfully a limited, revocable, non-exclusive, non-transferable (except in connection with an assignment of this Agreement), sublicensable license to use, access, store and process the Customer Data and Product Information to the extent necessary to provide the Services and otherwise fulfill its rights and obligations under this Agreement. Customer grants Rightfully a royalty-free, worldwide, perpetual, irrevocable, right to use, modify, distribute, publish, display, and incorporate into the Services any suggestions or feedback provided Customer or any Users related to the operation or functionality of the Service. Following expiration or termination of this Agreement or Customer’s account, Rightfully may deactivate the applicable Customer’s account and delete any data, including Customer Data and Product Information, associated therewith. Prior to such deactivation, Customer may export the Customer Data. Notwithstanding the foregoing, nothing in this Agreement is intended to prevent Rightfully from generating and using the Technology, Service or Rightfully Platform for purposes of providing, measuring, improving and marketing Rightfully’s products and services; provided, however, that Rightfully shall not disclose to any third party, unless compelled by law or with Customer’s permission pursuant to an Opt-in-Agreement, or otherwise, any information that is identifiable as Customer Data. And notwithstanding anything to the contrary herein, Rightfully may, for any purpose chosen in Rightfully’s sole discretion, compile, use, sell, license, rent or otherwise disclose to any third party, and retain in perpetuity, Resultant Data and Customer shall not have any rights whatsoever with respect to any materials that result from such use of Resultant Data.
(b) Rightfully’s Rights. All rights, title and interest in and to the Technology, Service, Rightfully Platform, Rightfully Marks, and Resultant Data (including without limitation all Intellectual Property rights in the Technology, Service, Rightfully Platform, Rightfully Marks, and Resultant Data and all modifications, extensions, customizations, scripts or other derivative works of thereof provided or developed by Rightfully) are owned exclusively by Rightfully. The rights granted to Customer do not convey any rights, express or implied, or ownership to the Technology, Service, Rightfully Platform, Rightfully Marks, and Resultant Data or any Intellectual Property rights thereto.
2.4 Documentation Licenses. Rightfully grants Customer the non-exclusive right to use the Documentation solely in conjunction with Customer’s use of the Service, Technology, and Rightfully Platform during the term of this Agreement. Rightfully and any applicable third parties reserve all rights in their respective Documentation.
2.5 Marks Licenses. Customer hereby grants to Rightfully a limited, non-exclusive, non-assignable, non-transferable license, without right to sublicense, to use its Marks in connection with the Services, and for publicity, advertising, and marketing. Rightfully may not alter Customer Marks in any manner, or use Customer Marks in any manner that may dilute, diminish, or otherwise damage Customer’s rights and goodwill in its Marks. Any usage of Customer Marks by Rightfully will be a reproduction of exact copies and all use of the Marks is subject to the Customer’s usage guidelines as revised from time to time and available from the Customer.
3. TERMS OF SERVICE
3.1 Access, Monitoring, Removal. Rightfully may access, monitor, remove content within, or disable Customer access to the Technology, Rightfully Platform and/or Services if: (a) Rightfully, in its sole discretion, believes it may incur liability because of Customer Data or the Product Information, (b) Rightfully is required to do so by law, government order or other legal process, (c) Rightfully determines in its sole discretion that it is necessary to enforce the terms of the Agreement, (d) Rightfully, in its sole discretion, believes it is necessary to do so to support, manage, improve and protect the integrity of the Service, (e) Rightfully, in its sole discretion, believes it is necessary to prevent illegal activity, uploading of virus infected files or questionable material, or (f) Customer breaches the Agreement. Rightfully shall have no liability to Customer nor to any third party for any disabling of Customer’s access and Customer shall remain liable for Fees and Additional Fees even during such disabling. Customer acknowledges that Rightfully’s right to access or monitor shall in no way be construed as an obligation by Rightfully to monitor any Customer Data or Product Information or to pre-screen Customer Data or Product Information.
3.1(A) Discrepancies. Rightfully may review Customer Data and other material to determine if there are Discrepancies. If Rightfully finds Discrepancies, Customer will have ten (10) days (“Waiting Period”) after the shipment closing date (provided by Amazon or other third-party logistics providers) to notify Rightfully of any changes, corrections or updates to the Discrepancies found by Rightfully. After the Waiting Period, Rightfully may file an Eligible Claim on the Discrepancies that Customer has not notified Rightfully to change, correct or update. In the event that either Customer or third party (including Amazon) notifies Rightfully of an error in a submitted Eligible Claim, and such claim is still open, Rightfully will close the claim if it is eligible to be closed.
3.2 Changes to Service. In its sole discretion, Rightfully may discontinue offering the Service, Rightfully Platform or Technology, in whole or in part, or modify any design, layout, features, functionality, tools or content of the Service, Rightfully Platform, and/or Technology, at any time, for any reason or no reason, with or without notice to You (although Rightfully has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions). If any discontinuance or modification of a material part of the Services, Rightfully Platform, and/or Technology materially reduces functionality and materially and adversely impacts Customer’s substantive use of the Rightfully Platform, Technology, or Services, as determined by Rightfully, in its sole discretion, Customer’s sole and exclusive remedy is to terminate the Agreement pursuant to Section 6.3 hereof. Any new features provided by Rightfully which augment or enhance the current Service, Technology, and/or Rightfully Platform, including the release of new tools or resources, updates and upgrades by Rightfully, may result in Additional Fees to Customer which shall be due and payable by the Customer pursuant to a mutually executed modification or addendum to the Agreement.
3.3 Maintenance. Rightfully may temporarily suspend the Rightfully Platform, Technology, or any Services, for maintenance from time to time.
3.4 Individual Account Holders. In order for a Customer to subscribe to the Service, each account must be assigned to an individual person or employee at a Customer. Rightfully cannot and will not accept any subscriptions where accounts are registered or run through automated methods.
3.5. Signup. Customers must provide their full legal name, address, and a valid email address in order to complete the signup process.
3.6. Customer Responsibility for Users. Customers are responsible for ensuring that their Users comply with the terms of this Agreement and Customer is liable for breaches of the Agreement by the User.
3.7. Service Control. Except as otherwise expressly provided in this Agreement, Rightfully has and will retain sole control over the operation, provision, maintenance, and management of the Technology, Service and the Rightfully Platform.
3.8 Transmission. Customer acknowledges that Customer’s information and Customer’s Data (personal or otherwise) may be transmitted inside and/or outside the United States as a result of Rightfully providing the Services.
4. CUSTOMER OBLIGATIONS
4.1. Product Information and Customer Data. Customer is responsible for providing all Product Information and Customer Data in local languages and for providing its own and its customers support in those local languages, unless expressly stated in a writing signed by the parties. Customer is solely responsible for the accuracy and completeness of Customer Data and Product Information.
4.2 Customer’s Privacy Obligations. As a condition to use the Service, Technology, and/or Rightfully Platform, Customer must:
(c) ensure that Customer’s privacy statement discloses the use of “cookies” or similar technologies that may be used by Customer or a third party (including Rightfully) to track browsing and purchasing habits, and such use of “cookies” complies with all applicable laws, rules and regulations, foreign law, treaties, and conventions, including any opt in and opt out requirement.
4.3 Security Obligations. Customer is responsible for maintaining their Security Obligation. Customer must notify Rightfully immediately in the event of loss of the Customer’s username or password. Customer must report any security breaches promptly to Rightfully.
4.4 Fulfillment/Shipment/Inventory/Taxes. Customer is responsible for fulfilling all of its customers’ orders. Customer agrees to ship all products within a commercially reasonable time after Customer has received payment for the products. As between Rightfully and Customer, title and risk of loss for Customer’s products remains with Customer at all times. Customer is solely responsible for maintaining inventory levels sufficient to support its sales of products and comply with the Federal Trade Commission (FTC) “Mail or Telephone Order Merchandise Rule” set forth in 16 CFR Part 435 as updated from time to time. Customer is responsible for identifying the products that it offers that are subject to sales, use, VAT, GST, and/or similar taxes and providing the applicable rates and information to Rightfully. Customer shall apply, or advise Rightfully to apply, the rates required by applicable laws, rules and regulations, foreign law, treaties, and conventions and Customer shall determine and pay all taxes including without limitation any sales, use or ad valorem taxes, and excluding taxes based upon Rightfully’s net income. Customer shall reimburse Rightfully for any taxes, interest and penalties levied against Rightfully if Customer fails to remit such taxes, interest and/or penalties. Customer is responsible for identifying to Rightfully its main tax location where Customer will access the Rightfully Platform or Service. Where obligated by applicable law, Rightfully will, for the benefit of Customer, collect all applicable local, state, national or international taxes that are owed as a result of Customer’s use of the Rightfully Platform or Service, and remit collected taxes to the appropriate taxing authority based on Customer’s main billing address of record.
4.5 You shall not access or use the Services if You are located in Burma (Republic of the Union of Myanmar), Cuba, Iran, Libya, North Korea, Sudan, or Syria (the “Prohibited Jurisdictions”), and You shall also not provide access to the Services to any government, entity or individual located in the Prohibited Jurisdictions.
4.6 Customer Usage. Customer shall use commercially reasonable efforts to perform all acts and to make, execute and deliver all documents, data, and access credentials that Customer needs to perform or provide in order for Rightfully to provide the Services.
5.1 Fee Payment. Fees and Additional Fees are due and payable via Payment Processing periodically. If an automatic payment processing fails, Rightfully may demand immediate payment of the Fees, Additional Fees which are due, and any failed/returned payment fees, and temporarily disable the Customer’s access to the Technology, Service and/or Rightfully Platform until full payment is made.
5.3 Effect of Breach. A failure to pay any Fees or Additional Fees when due is a material breach of this Agreement. This section shall survive termination of the Agreement.
6. TERM AND TERMINATION
6.1 Term. The Effective Date is the date upon the date of acceptance of these Terms of Service via checkbox at Rightfully.com.
6.2 Termination for by Rightfully for Cause. Rightfully may terminate this Agreement with cause immediately (a) upon Customer’s failure to pay Fees or Additional Fees when due, (b) upon Customer’s breach of Sections 2.2, 4, 7.2, 11.1, or 12 of these Terms of Service, or (c) upon Customer’s material breach of any other provision of this Agreement.
6.3. Termination without Cause. Either party may terminate the Agreement, upon written notice, without cause, upon thirty (30) days’ notice and such termination shall be effective thirty (30) days after such notice except that Rightfully may continue pursuing and/or collecting on claims made prior to the effective date of such termination.
6.4. Effect of Expiration or Termination. Upon expiration or termination of the Agreement, the License granted to Customer under this Agreement shall terminate immediately. The following sections of the Terms of Service survive its expiration or termination: 1.0, 2.3, 5 (solely to the extent that Fees or Additional Fees are owed), 6.3 (solely as to pursuing and/or collecting claims), 7 through 12 and any other provision or partial provision which by its nature would reasonably survive the termination of the Agreement including, but not limited to, the Opt-in-Agreement, if any.
7. PARTIES’ REPRESENTATIONS AND WARRANTIES
7.1 DISCLAIMER OF WARRANTIES BY Rightfully. THE SERVICE (INCLUDING ANY SOFTWARE AND DOCUMENTATION, AND ANY ADDITIONAL SERVICES), THE TECHNOLOGY, AND THE Rightfully PLATFORM, IS PROVIDED HEREUNDER “AS IS” AND “AS AVAILABLE.” Rightfully MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE TECHNOLOGY, SERVICE, Rightfully PLATFORM, OR Rightfully MARKS OR THE RESULT OR EXPECTED RESULT OF THE TECHNOLOGY, SERVICE, OR Rightfully PLATFORM. EXCEPT AS EXPLICITLY PROVIDED IN THE AGREEMENT, Rightfully DISCLAIMS ANY AND ALL (i) WARRANTIES WITH RESPECT TO THE TECHNOLOGY, SERVICE, Rightfully PLATFORM, OR Rightfully MARKS INCLUDING, WITHOUT LIMITATION, (ii) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND (iii) WARRANTIES THAT THE TECHNOLOGY, SERVICE, OR Rightfully PLATFORM, WILL OPERATE SECURELY, TIMELY, UNINTERRUPTED, DEFECT-FREE OR ERROR-FREE OR THAT THE TECHNOLOGY, SERVICE, OR Rightfully PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE TECHNOLOGY, SERVICE, OR Rightfully PLATFORM AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT CUSTOMER’S USE OF THE TECHNOLOGY, SERVICE, OR Rightfully PLATFORM WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY POLICIES, TERMS OR CONDITIONS OF AMAZON OR THIRD PARTIES, OR APPLICABLE LAWS, RULES AND REGULATIONS, FOREIGN LAW, TREATIES, AND CONVENTIONS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE TECHNOLOGY, SERVICE, OR Rightfully PLATFORM ARE SUFFICIENT FOR CUSTOMER’S PURPOSES. Rightfully MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE TECHNOLOGY’S, SERVICE’S, OR Rightfully PLATFORM’S LOCALIZATION TO A PARTICULAR MARKET INCLUDING WITHOUT LIMITATION LOCAL LANGUAGE, LOCAL SUPPORT OF TAXES, PAYMENT OR SHIPPING CARRIERS. Rightfully MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH ANY MODULE OR FROM ANY NETWORK SITE, FLEX FEED DESTINATION, OR THIRD-PARTY INTERFACE.
7.2 Customer represents and warrants that:
(a) the Product Information and Customer Data (i) is owned (or validly licensed for all uses required under the Agreement) by Customer or is in the public domain, (ii) does not constitute defamation, libel, or obscenity, (iii) does not result in any consumer fraud, product liability, or breach of contract, or cause injury to any third party, (iv) does not contain, and will not introduce into the Technology, Service and/or the Rightfully Platform, any viruses, Trojan horses, worms, spyware, time bombs or other forms of malware, malicious code or computer programming routines which may interfere with or disrupt the Services and/or Rightfully Platform; (v) is accurate, current and complete; (vi) Customer's Data is not misleading or false; (vii) does not infringe or violate any patents, copyrights, trademarks or other intellectual property, proprietary or privacy rights of any third party; and (viii) Customer’s Data does not contain any protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”) or similar federal or state laws, rules or regulations or other medical or health information identifiable with a particular individual;
(b) it will comply with all applicable laws, rules and regulations, foreign law, treaties, and conventions as updated from time to time related to Customer’s performance of its obligations under the Agreement and activities that Customer undertakes in connection with its use of the Technology, Rightfully Platform, and/or Services including without limitation those governing the online sale of goods and services, those governing anti-bribery and anti-corruption, including without limitation the U.K. Bribery Act 2010 and the U.S. Foreign Corrupt Practices Act of 1977 (FCPA), respectively, and U.S. export controls and trade sanctions and economic embargoes; and
(c) it will not engage in the activities prohibited in this Agreement.
8. CUSTOMER LIABILITY, ASSUMED RISKS, AND Rightfully LIABILITY
8.1 Except as otherwise expressly stated in this Agreement, Customer agrees to use the Service, the Technology and the Rightfully Platform at Customer’s own risk. Rightfully shall not be liable for any actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims and demands whatsoever, in law, admiralty or equity, unless expressly stated otherwise in the Agreement.
8.2 Rightfully is not responsible for acts, services or content posted or provided by persons or entities other than Rightfully (including but not limited to Amazon), for Customer’s exposure to such content, or for actions Customer takes in reliance on that content. Rightfully has no liability to Customer for failures based on services not provided by Rightfully (including but not limited to Amazon).
8.3 Customer is solely responsible for all selection of parties with whom Customer does business (including but not limited to Amazon), and for Terms of Service of Customer’s agreements with those parties and with network sites and flex feed destinations.
8.4 Rightfully has no responsibility for the quality or availability of goods or services provided by Customer, Customer’s compliance with Amazon’s terms and conditions, the sufficiency of any documentation generated using Customer’s invoices, packing slips or other accounting information, any of Customer’s customers’ ability to pay, any third party’s compliance with the terms of a transaction, or for any injury, loss or damage caused or alleged to have been caused by the goods or services sold by Customer. Where the Rightfully Platform or Website contains links to other sites and resources provided by third parties, these links are provided for information only and such links should not be interpreted as approval by Us of those linked websites, and Rightfully shall have no responsibility for any use of such links.
8.4(a) Rightfully shall not be liable for the verification of Customer’s information submitted by Customer to Amazon, or any third parties, and thereafter retrieved or utilized by Rightfully in the course of providing the Services, whether in the form of invoices, packing slips or otherwise.
8.5 Rightfully shall not, under any circumstances, be liable for any loss, delay, or interception of Customer Data whether that be through general use, hacking or server failure, or any loss, corruption, hacking or failure of the daily backups or otherwise. Customer acknowledges that: (a) the technical processing and transmission of Customer Data is fundamentally necessary to use of the Service; (b) Customer Data will be subject to transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Rightfully; and (c) Customer acknowledges that Customer Data may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means.
8.6 Rightfully shall not be liable for any loss or damage caused by Customer’s failure to comply with the Security Obligation.
8.7 Customer is responsible for any breaches of its Security Obligations or of security that occur through Customer’s access or login credentials including as a result of Customer’s sharing such access or login credentials, or failure by Customer to adequately safeguard the same.
8.8 Rightfully shall not be liable for any loss, damage, penalties or fees arising from Customer’s or third party’s errors, misrepresentations, inaccuracies or incompleteness of Customer Data, Discrepancies, or Eligible Claims. Customer is solely responsible for the accuracy and completion of all Customer Data, including without limitation, documents and information representing Customer’s fulfillment, shipment, inventory and taxes, Discrepancies and Eligible Claims.
8.9 Rightfully shall not be liable for any loss, damage, penalties, fees sustained (or threatened to be sustained) by, or actions taken or claims made against Customer or any third party, arising, directly or indirectly, from any suspension or shut down by Amazon or any third party of either (a) Rightfully’s Platform, or (b) Customer’s accounts, sites, platforms, services or other business regardless of (i) the stated reason for such suspension or shut down, (ii) the timing or duration of the suspension or shut down, (iii) whether there has been notice for the suspension or shut down, (iv) whether a cure has been commenced for the suspension or shut down or (v) any claims, proven or unproven, by Amazon or any third parties, underlying the basis for such suspension or shut down. Rightfully shall not be required to indemnify Customer or any third party for any loss, damage, or claims arising, directly or indirectly, from any suspension or shut down as set forth in this Section 8.9.
9. LIABILITY LIMITATIONS
UNDER NO CIRCUMSTANCES WILL Rightfully BE LIABLE FOR: LOSS OF REVENUE; LOSS OF DATA; ERRORS IN CUSTOMER DATA; DISCREPANCIES OR ELIGIBLE CLAIMS; ERRORS IN DISCREPANCIES OR ELIGIBLE CLAIMS; ERRORS IN PRODUCT INFORMATION; CUSTOMER’S FAILURE TO PROVIDE SUFFICIENT OR TIMELY CUSTOMER DATA; INCOMPLETE, INACCURATE, MISLEADING, FALSE OR FRAUDULENT CUSTOMER DATA, PRODUCT INFORMATION OR OTHER DOCUMENTATION OR OTHER INFORMATION PROVIDED BY CUSTOMER; LOSSES FROM ANY SUSPENSION OR SHUT DOWN OF Rightfully’S PLATFORM OR ACCOUNT OR CUSTOMER’S ACCOUNT, WEBSITE, PLATFORM, SERVICES, OR OTHER BUSINESS WITH AMAZON OR ANY THIRD PARTY; LOSS OF ACTUAL OR ANTICIPATED PROFITS; LOSS OF CONTRACTS; LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO, COMPROMISE, OR CORRUPTION OF DATA, OR CONSEQUENTIAL OR INDIRECT LOSS OR SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES (INCLUDING, FOR THE AVOIDANCE OF DOUBT, WHERE SUCH LOSS OR DAMAGE IS ALSO OF A CATEGORY OF LOSS OR DAMAGE ALREADY LISTED), WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS BY CUSTOMER OR ANY THIRD PARTY ARISING OUT OF ANY BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR OTHER TERM, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, OTHER LIABILITY IN TORT, FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE. Rightfully IS NOT LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR THE FAILURE OF A PERSON TO ENTER INTO A TRANSACTION OR OBTAIN ANY PARTICULAR RESULT BY MEANS OF CUSTOMER’S USE OF THE Rightfully PLATFORM, TECHNOLOGY, ANY MODULE (OR OTHER SOFTWARE LICENSED) OR THE SERVICES.
10. LIABILITY CAP
NOTWITHSTANDING THE FORM OR NATURE (E.G., CONTRACT, TORT, STATUTORY, COMMON LAW, DIRECT LIABILITY OR INDEMNIFICATION, INFRINGEMENT, OR OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT BY CUSTOMER OR THIRD PARTY, IN NO EVENT WILL Rightfully BE LIABLE FOR DAMAGES, EXPENSES, COSTS, LIABILITIES, SUITS, CLAIMS, RESTITUTION OR LOSSES TO CUSTOMER AND/OR THIRD PARTIES, THAT EXCEED, IN THE AGGREGATE, TWO (2) TIMES THE TOTAL AMOUNTS PAID OR PAYABLE TO Rightfully BY CUSTOMER IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE DAMAGES, EXPENSES, COSTS, LIABILITIES, SUITS, CLAIMS, RESTITUTION OR LOSSES TO CUSTOMER AND/OR THIRD PARTIES (“LIABILITY CAP”). Some States do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE STATES, Rightfully’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Such Liability Cap is a maximum and shall not be used, control or be considered if: (i) Rightfully’s liability or obligations are in amounts which would be or are below the Liability Cap either pursuant to this Agreement or otherwise or (ii) if Rightfully has no liability either otherwise or pursuant to disclaimers in this Agreement including, but not limited to, sections 7.1, 8 and 9.
11.1. Customer’s Indemnification. Subject to Section 11.3 (Requirements of Indemnification), Customer shall indemnify, defend and hold harmless Rightfully and its Representatives from and against all obligations, actions, suits, claims, demands, settlements, judgments, damages, losses, liabilities, costs and expenses (including attorney’s fees), of whatever type or nature incurred by Rightfully by reason of a third party claim or assertion brought against Rightfully or its Representatives arising out of or related to: (a) Customer’s failure to comply with or breach of the Agreement, (b) Customer Data, Customer Marks, ad content, and Product Information or Customer’s products listed, supplied or sold, including, without limitation, Intellectual Property infringement claims and product liability claims, and any misleading, false, inaccurate, fraudulent or incomplete Customer Data, Product Information, or other documentation or information supplied by Customer, including but not limited to that contained in the Doc Master, or any failure by Customer to provide sufficient or timely, accurate and complete Customer Data, Product Information, or other documentation or any errors in Discrepancies or Eligible Claims, (c) any negligence, recklessness, or willful misconduct of Customer or its Representatives, (d) the death or bodily injury of any agent, employee, customer, business invitee, or business visitor or other person caused by Your conduct, or that of Your agent or employee; and/or (e) asserted by a third party against You, resulting from Your acts or omissions or those of Your employees, agents, contractors, successors and permitted assigns. Rightfully reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case You agree to cooperate with any requests to assist Rightfully’s defense of such matter and You shall reimburse Rightfully or pay in advance, as requested in Rightfully’s sole discretion, all costs and expenses (including attorney’s fees).
11.2. Rightfully Indemnification. Unless Rightfully has no liability either otherwise or pursuant to disclaimers in this Agreement including, but not limited to, sections 7.1, 8 and 9 and subject to Section 11.3 (Requirements of Indemnification), Rightfully shall indemnify, defend and hold harmless Customer and its Representatives in the aggregate lesser amount of (i) the Liability Cap, or (ii) Rightfully’s liability or obligations which are in amounts which would be or are below the Liability Cap either pursuant to this Agreement or otherwise, from and against all obligations, actions, suits, claims, demands, settlements, judgments, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) of whatever type or nature which are incurred by Customer by reason of a third party claim or assertion brought against Customer and/or its Representatives, arising out of or related to any gross negligence or willful misconduct of Rightfully or its Representatives in the course of providing the Services to Customer.
11.3. Requirements of Indemnification. In order for the indemnification obligations of the indemnifying parties to apply, the indemnified parties must promptly provide the indemnifying party with notice in writing of any claim, promptly tender the control of the defense and settlement of any claim to the indemnifying party (at the indemnifying party’s expense and with indemnifying party’s choice of counsel), and cooperate fully with the indemnifying party (at the indemnifying party’s request and expense) in defending or settling the claim including without limitation providing any information or materials necessary for the defense. The indemnifying party shall only be liable to the indemnified party for the amount of damages as determined in a final, non-appealable order of a court of competent jurisdiction or paid by way of settlement, but the indemnifying party shall have no liability for any settlement made by an indemnified party without the indemnifying party’s prior written consent, which may not be unreasonably withheld. The indemnifying party will not enter into any settlement or compromise of any claim without the indemnified party’s prior consent if the settlement would require admission of fault or payment by the indemnified party.
12. GENERAL PROVISIONS
12.1 Assignment. Customers may not assign the Agreement without Rightfully’s prior written consent.
12.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create any joint venture, partnership, agency or employment relationship between the parties.
12.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior or collateral negotiations, proposals, agreements and understandings, whether oral or written, relating to the subject matter of the Agreement. Any representation, warranty, course of dealing or trade usage not expressly stated in the Agreement shall not be binding. Except as otherwise stated in the Agreement, any amendments to the Agreement must be in writing and executed by the parties. To the extent the terms of a subsequent writing signed by the parties’ conflict with the terms of the Agreement, the terms of the subsequent writing control.
12.4 Severance. If any provision of the Agreement is held or made invalid or unenforceable for any reason, the invalidity will not affect the remainder of the Agreement and the severed provision shall be interpreted to be consistent with the Agreement.
12.5 No Waiver. The failure of either party at any time to enforce or require performance of any provision shall not waive or affect such party’s right to enforce any such provision at a later time.
12.6 Exhibits. All Exhibits, Schedules and other addenda referenced in the Agreement are incorporated into the Agreement by reference.
12.7 No Reliance. Each party represents and warrants to the other party that it is NOT relying on any promises, guarantees and/or assurances of the other party that are NOT otherwise expressly contained in the Agreement.
12.8 Notice. Except as otherwise explicitly provided in the Agreement, any notice required or permitted by the Agreement shall be in writing and deemed delivered if delivered (a) by personal delivery when delivered, (b) by overnight courier upon written verification of receipt, (c) by certified or registered mail, return receipt requested, upon verification of receipt, or (d) upon transmission via email to a properly addressed email address as provided by the parties. Notices must be sent to the contacts and address in the Agreement, or any new address provided by the permitted notice methods.
12.9. Governing Law and Dispute Resolution. To the extent any reference to state law is required, the laws of the State of New Jersey, without regard to its conflicts of laws provisions, govern the Agreement. Each party irrevocably and unconditionally consents and submits to the exclusive jurisdiction of the applicable courts located in the State of New Jersey, Bergen County, or the Federal court whose district encompasses the State of New Jersey, Bergen County, for purposes of any action, suit or proceeding arising out of or relating to the Agreement THE CUSTOMER HEREBY WAIVES, AND COVENANTS THAT THE CUSTOMER WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE SUBJECT MATTER HEREOF OR ANY DOCUMENT RELATING HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING OR WHETHER IN CONTRACT OR IN TORT OR OTHERWISE. THE CUSTOMER ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL REGARDING ALL THE TERMS OF THIS AGREEMENT, INCLUDING THIS SECTION, THAT IT FULLY UNDERSTANDS THE TERMS HEREOF, THE CONTENT AND EFFECT, AND THAT IT VOLUNTARILY AND KNOWINGLY AGREES TO THE TERMS HEREOF, AND THAT IN THE EVENT OF ANY AMBIGUITY IN THIS AGREEMENT, ANY PRESUMPTION THAT SUCH AMBIGUITY SHALL BE CONSTRUED AGAINST THE DRAFTER OF THE AGREEMENT SHALL NOT APPLY TO THIS AGREEMENT.
12.10. Force Majeure. Neither party shall be liable for failure to perform, or the delay in performance of, any of its obligations under the Agreement other than payment if, and to the extent that, the failure or delay is caused by events beyond its reasonable control including without limitation acts of the public enemy or governmental body in its sovereign or contractual capacity, war, fire, floods, strikes, epidemics, pandemics, quarantine restrictions, unavailability of the Internet, protracted mass power failure, civil unrest or riots, acts of terrorism, transportation delays, freight embargoes or unusually severe weather. The affected party shall use commercially reasonable efforts to avoid or remove the causes of non-performance or delay, and shall continue performance whenever the causes are removed.
12.11 Captions. Section headings are for reference purposes only and in no way affect the meaning or interpretation of the Agreement.