Terms of Service

1. Certain Definitions

1.1 The following terms, when used in this Agreement will have the following meanings:

"Confidential Information" means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, "Confidential Information" will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information.

"Customer Content" means any information, data, graphics, content and other materials provided or made available to EcomSolid by Customer (or, if Customer is an agency, Customer's clients for which Customer is an agency of record (***"Agency Clients"***)) for the purpose of building a Customer Website.

"Customer Website" means a website branded with Customer's trademarks (or, if Customer is an agency, those of its Agency Clients) and operated by or on behalf of Customer (or, if Customer is such an agency, its Agency Clients) that uses an e-commerce platform that has integrated the EcomSolid Software, for which Customer is permitted to use the EcomSolid Software as set forth in Customer's EcomSolid account.

"EcomSolid Software" means the cloud-based page building software tools made generally available by

2. Changes

2.1 These Terms. EcomSolid may revise these Terms from time to time. If EcomSolid does revise these Terms, the revised Terms will supersede prior versions, effective at the beginning of your next subscription renewal. EcomSolid will provide you advance notice of any material revisions. This notice will be provided via the account portal and/or via an email to the email address EcomSolid has on file. For other revisions, EcomSolid will update the effective date of these Terms at the top of the page. EcomSolid encourages you to check the effective date of these Terms whenever you visit EcomSolid's website or account portal. Your continued access or use of the EcomSolid Software constitutes your acceptance of any revisions, effective at the beginning of your next subscription renewal. If you don't agree to the revisions, you should cancel your subscription to the EcomSolid Software. Subject to the foregoing, no amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties.

2.2 EcomSolid Software. You acknowledge that EcomSolid may change or deprecate any feature of the EcomSolid Software from time to time, and that it is your responsibility to ensure that calls or requests you make to the EcomSolid Software are compatible with then-current version of the EcomSolid Software. Although EcomSolid endeavors to avoid changes to the EcomSolid Software that are not backwards compatible, if any such changes become necessary EcomSolid will endeavor to notify you at least thirty (30) days prior to EcomSolid's implementation of any such incompatible changes to the EcomSolid Software of which it becomes aware.

3. EcomSolid Software

3.1 Provision of EcomSolid Software. Subject to the terms and conditions of this Agreement and the EcomSolid Acceptable Use Policy (available at https://ecomsolid.com/pages/aup) (the "AUP"), EcomSolid will use commercially reasonable efforts to make the EcomSolid Software available to Customer pursuant to this Agreement based on the pricing plan for the EcomSolid Software selected by Customer. Customer may permit its third party contractors, subject to confidentiality and use obligations at least as restrictive as those set forth in this Agreement, to access and use the EcomSolid Software solely in connection with services provided by such third party contractors to Customer. If Customer is an agency, such rights may, as agreed by the parties, be restricted to access and use on behalf of only certain Agency Clients, and Customer will only use the EcomSolid Software on behalf of such Agency Clients that have authorized Customer to use the EcomSolid Software on their behalf within the scope of Customer's other bona fide agency responsibilities for such Agency Client.

3.2 Customer Responsibilities. Customer acknowledges that EcomSolid's performance of the EcomSolid Software is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer APIs (if applicable), personnel and Customer Content), and Customer will provide all such cooperation in a diligent and timely manner. Customer will be solely responsible for the accuracy, quality, integrity and legality of Customer Content. Customer hereby grants to EcomSolid a limited, non-exclusive, worldwide license to use, reproduce, create derivative works of, distribute, publicly perform and display Customer Content to provide the EcomSolid Software to Customer.

3.3 Ownership Rights. As between the parties, EcomSolid owns and will retain all right, title and interest in and to the EcomSolid Software and any improvements thereto, and Customer (or, if Customer is an agency, its Agency Client(s)) owns and will retain all right, title and interest in and to the Customer Content and Customer Websites (excluding any EcomSolid Software embedded therein). No rights are granted other than as expressly set forth herein.

3.4 Feedback. Customer may from time to time provide EcomSolid suggestions or comments for enhancements or improvements, new features or functionality or other feedback (***"Feedback"***) with respect to the EcomSolid Software. EcomSolid will have the full, unencumbered right to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.

3.5 EcomSolid Platform Improvements and Marketing. Notwithstanding anything herein, EcomSolid shall have the right to collect and analyze data and other information relating to the use and performance of the EcomSolid Software and related systems and technologies and EcomSolid will be free to (i) use such information and data to develop, improve and provide EcomSolid's offerings, and (ii) use and disclose such data in aggregate or other anonymous and de-identified form for marketing purposes and otherwise in connection with its business.

3.6 Data Processing Addendum and Privacy Shield. To the extent that EcomSolid processes any Personal Data (as defined in the DPA referenced below) provided by Customer's customers on Customer's behalf in the provision of the EcomSolid Software, the terms of the data processing addendum at https://ecomsolid.com/pages/dpa ("DPA") as may be updated by EcomSolid if required by applicable law, which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms. For the purposes of the DPA (including the Standard Contractual Clauses attached to the DPA), Customer is the data controller and data exporter, and Customer's entering into this Agreement shall be treated as signing of the DPA (including the Standard Contractual Clauses and their Appendices). EcomSolid further represents to Customer that it has certified its adherence to the EU-US or Swiss-US Privacy Shield Framework, as administered by the US Department of Commerce and detailed at https://www.privacyshield.gov.

4. Fees

4.1 Fees. Customer will pay EcomSolid the fees set forth in EcomSolid's standard pricing plan, as may be updated from time to time, or any other order forms for the EcomSolid Software ordered by you and accepted in writing by EcomSolid. EcomSolid may change the terms of its pricing plan at any time by updated the pricing plan webpages on its website located at https://ecomsolid.com/ (the "Site"). Customer is responsible for checking the Site for any updates to the applicable pricing plan. All changes to EcomSolid's pricing plan will be effective upon Customer's next subscription renewal. All fees are due and payable at the beginning of your subscription term and each renewal thereof. If EcomSolid has not received payment within five (5) days after the due date, interest shall accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by EcomSolid. Further, EcomSolid may restrict or suspend Customer's access to the EcomSolid Software if payment is not made within five (5) business days after Customer's receipt of notice (including by email) that payment is past due. Except as otherwise mutually agreed upon in writing, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable, except as expressly set forth herein. Customer is solely responsible for collecting and paying any fees associated with transactions between Customer's end users and Customer

4.2 Taxes. All amounts and fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (collectively, "Taxes"). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on EcomSolid's net income.

5. Confidentiality; Restrictions

Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. In addition, Customer will not (nor will it permit any third party to) (1) reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive the source code underlying the EcomSolid Software or modify or create derivative works based on the EcomSolid Software; (2) use the EcomSolid Software to build a similar ...