Legal

1. The Digital River Goal. Our goal at the Digital River family of companies (Digital River, Inc., Digital River Ireland Limited, Digital River GmbH and/or DR globalTech, Inc.) is to help you simplify and expand your eCommerce sales on a global basis by optimizing your trading pattern without you needing to invest in the local infrastructures required to manage the complex and ever-changing landscape of local regulations and taxes. You control your shopper experiences, and our solutions (referred to below as our “Solutions”) help you to increase your global sales and comply with applicable laws.

2. These Terms and Conditions (“Terms”) Govern our Solutions. IF YOUR BUSINESS ORGANIZATION (“YOU” OR “YOUR”) DOES NOT AGREE WITH THESE TERMS OR IF YOU DO NOT HAVE AUTHORITY TO BIND YOUR ORGANIZATION TO THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND ARE NOT AUTHORIZED TO USE OUR SOLUTIONS. IF YOU ACCEPT THESE TERMS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY REGISTERING FOR SOLUTIONS, OR BY CONTINUING TO USE OUR SOLUTIONS AFTER THE "LAST UPDATED" DATE BELOW, YOU ARE AGREEING TO THESE TERMS ON BEHALF OF YOUR ORGANIZATION.

These Terms were last updated on July 23, 2020.

Due to business requirements of the Digital River family of companies and our third-party providers’ (such as payment providers, banks, fulfillment partners, and customer service providers), local and foreign legal requirements, and to achieve economies of scale for Digital River and its clients, these Terms and Conditions are not modifiable on an individual client basis. In order to remain in compliance with the rapidly changing environment which governs online commerce, from time to time Digital River may update these Terms and Conditions with respect to all clients to accommodate changes in laws and regulations, market or industry conditions, applicable business requirements (such as those of Digital River’s third-party providers), or common client requirements. Clients will be notified in advance of any updates to these Terms and Conditions by Digital River and will have the right to issue Digital River a notice of termination as set forth in Section 13 below or to continue to use the Solutions under the updated Terms and Conditions

3. Our Solutions. You have flexibility to choose the Solution that best suits your commerce and payment processing needs. The following legal documents, accessible at https://help.digitalriver.com/legal or via confidential links to be provided to you (collectively, the “Agreement”), apply to all relationships with Digital River:

Offerings:

• These Terms
• Payments & Risk – the Onshore Advantage™ - We act as your online reseller. We take ownership of your goods in a B2B sale and resell them to your shoppers. Using our proprietary tools for fraud and payments, we provide a fully-integrated suite of services – payments, tax, risk, fraud and compliance – the operation of which is facilitated by an order orchestration layer. We optimize the commerce acquisition process from your shoppers to you.
• Optional: Additional terms apply to the specific Solution(s) you use with Digital River:
  • Order Management
  • Commerce
  • Support Services

Standards:

• Service Level Agreement
• Data Handling Standards
• Guidelines & Best Practices - Our proprietary guidelines to online commerce which describe the legal framework(s), Application Programming Interface(s) (“APIs”) and implementation guidance necessary to conduct online commerce using our Solutions. These may not be accessed by a client without a non-disclosure agreement in place.

Resources – such as the listing of approved ECCNs, a listing of prohibited goods and services, and the Terms of Sale between us and the shopper:

Order Form - Identifies the specific Solution you order, including pricing. This is the only portion of the Agreement that you will sign.

We provide our Solutions in accordance with the Agreement and APIs applicable to the Solutions. The Agreement terms and APIs vary due to specific requirements applicable to the Solutions and the countries you select to do business in, including variances for local laws and regulations, languages, currencies, taxes, and banking and trade regulations and requirements.

In order to connect to and use the Solutions you must implement and maintain your eCommerce shopper experience in accordance with the Agreement and APIs for the Solutions and geographies you select so that your shopper/transaction data follows the rules to transact business related to the Solutions in the applicable geography. If, from time to time, there are material changes to the Agreement and/or APIs as they apply to the Solutions you use (for example, due to changes in local laws or regulations), we will notify you in advance and you must remain in compliance with those changes to continue using the affected Solutions. In the case of changes to the APIs, we can perform or assist you with the implementation at your request in accordance with your Order Form and any applicable Statement of Work under your Order Form.

If you are non-compliant with the Agreement and/or APIs, you proceed at your own risk and we cannot warrant that your sales transactions will be processed in accordance with the applicable laws, rules or regulations. You agree to indemnify, defend and hold us harmless from and against any claims, liabilities and expenses we may incur due to your non-compliance with Sections 4, 5 or 6 of these Terms. In addition, if we determine that your non-compliance (i) is illegal, (ii) is a violation of applicable rules, regulations or guidelines of card associations, processor/acquiring banks, or legal or regulatory payment authorities, or (iii) violates our territorial restrictions for permitted commerce, we may suspend or terminate your use of the Solutions. We will notify you of any suspension or termination of your use of the Solutions and where possible will consult with you before taking such action.

4. Your Business. As between you and us, you are fully responsible for all aspects of your business and shopper experiences, including: (i) your website and online store; (ii) your online shopping cart, to the extent we are not directly providing those Solutions to you; (iii) your products and services (and the use or misuse of your products and services), including, the design, development, manufacturing and labeling of your products and services, any warranty and recalls, and any infringement issues; (iv) shopper relations, including support service for your products and services; (v) your systems or the systems you procure from third parties, including any downtime, errors or fraud on such systems; (vi) your personnel; and (vii) your compliance with all laws, rules and regulations applicable to your responsibilities, including without limitation those relating to consumer protection, privacy, export compliance, money laundering, and data security.

5. Our “Know Your Customer” and Anti Money Laundering Regulatory Obligations. Once we accept your account registration, we will be taking on commerce risks on your behalf by acting as your online reseller, processing payments for you and providing the other Solutions you order. So, to set up your account, you must provide us certain information we will request, which includes completing our Know Your Customer account verification form and may include you providing additional information required to comply with anti money laundering regulations. We will also conduct, and you authorize us to conduct, a customary commercial background check for these purposes and to assess the risk of our doing business with you. Your failure to provide true, accurate and complete information to us may result in us denying your account registration or suspending or terminating our business relationship.

6. Information and Materials You Provide. Our Solutions are dependent upon the information, items and materials you provide us (e.g., we must know about your products in order for our Solutions to sell your products, process payments for your products, and for our proprietary software logic to help determine if a purchase is fraudulent), so you must provide to us in a timely manner all information, items and materials in your control reasonably required by us to comply with our obligations, and you must respond promptly to any request for direction, information, approval, authorization or decisions that are reasonably necessary for us to perform the Solutions for you or protect our rights under the Agreement. The information, items and materials you provide must be accurate, true and complete. If any information, item or material you provide is or becomes inaccurate, untrue, or incomplete, you must immediately notify us, and we may require you to obtain additional risk and/or compliance approval from us and we, as a condition to such approval, may require additional obligations from you. You must also immediately inform us if: (i) there is a material change in your commercial condition; (ii) your business model has changed (including, but not limited to, a change of the range of products and/or services you offer); (iii) there is a significant change in your ownership structure; or (iv) there are any updates to the information you provided to us when you signed up for the Solution. In order to verify your information and compliance with the Agreement and as may be required by the card associations, processor/acquiring banks or legal or regulatory payment authorities in connection with your use of the Solutions, we may require you to verify your information or to permit a third party auditor approved by us to conduct an audit of your information, and you must fully cooperate with any reasonable requests for information or assistance by us or the auditor. We can share the reports with the card associations, processor/acquiring banks or legal or regulatory payment authorities used to provide the Solution to you as they require.

7. Liaison. You and we will each appoint someone who will be responsible to serve as the liaison between you and us with respect to the Solutions to be provided. This person will: (i) have day-to-day responsibility for supervising the performance of your obligations (and, in our case, our obligations) under the Order Form; and (ii) have responsibility for seeking all necessary approvals for any course of action, undertaking, obligation or responsibility in connection with your performance (and, in our case, in our performance) under the Order Form.

8. Fees. You agree to pay our fees and reimbursable expenses for Solutions you order in accordance with applicable Order Forms.

9. Licenses. During the term of your use of the Solutions, (i) we grant you a license to use our APIs and/or administration interface software applicable to the Solutions you order solely for your use of those Solutions, and (ii) if you order a Solution that requires either of us to use the other party’s trademarks and logos to perform or use the Solution, we each hereby grant the other party a license to do so solely as required in connection with the performance or use of the Solution under the Agreement, and only in the form and with appropriate legends as required by the other party. With your express written permission, we may also include your company name and logo in our client list and marketing materials.

10. Ownership and Intellectual Property. As between you and us, you (and/or your suppliers and licensors) own all of your Confidential Information and materials you provide to us, whether electronic or physical, in the course of performing your obligations under these Terms (including without limitation your products, trademarks and logos, as may be applicable) and all proprietary and intellectual property rights thereto. As between us and you, we (and/or our suppliers and licensors) own the Solutions, their constituent parts, our software, marks, logos, work product, information prepared by, provided by, or used by us (other than the materials you provide to us), and any modifications or improvements to them, and all proprietary and intellectual property rights thereto.

11. Confidentiality and Protection of Personal Data. We and you each agree, as it relates to our or your respective handling of confidential information, to maintain in strict confidence and to use only to perform the Solutions or as otherwise authorized by the other party, all information it receives under these Terms which is of a confidential nature concerning the other party's business operations, technical and financial information, employees, suppliers, providers or shoppers ("Confidential Information"). Information will not be deemed Confidential Information if it is or becomes generally available to the public without breach of these Terms or is independently developed by the non-disclosing party or its personnel or representatives without reliance in any way on Confidential Information of the disclosing party.

In connection with our performance, tracking and improvement of the Solutions we may disclose Confidential Information to our third-party providers (such as our corporate affiliates, merchant/acquiring banks and contractors) and we will remain liable for any breach by them of this confidentiality provision. You or we may disclose Confidential Information required to be disclosed by law or court order so long as we provide prompt written notice to the other party (if not prohibited by law), try to limit the disclosure to the minimum amount required and obtain confidential treatment or a protective order, and, if requested, cooperate with the other party to do so. We may also use and disclose anonymized and/or aggregated information relating to usage of the Solutions that does not identify you or any particular shopper or supplier (such as aggregated conversion data to help optimize future sales conversion rates and fraud data to continually improve our anti-fraud logic for future transactions), and we may disclose information stored in our Solution databases if we believe it is required to do so by law or to reduce risk of credit or other kind of fraud.

We and you each agree, as applicable, to comply with all applicable data protection and data privacy laws, rules, and regulations as they relate to our or your respective handling, control of and/or processing of personal data (or similar defined terms under applicable laws) as set forth in the Standards for Data Handling. Such responsibilities include the obligations (i) to maintain administrative, physical and technical safeguards reasonably designed to prevent the unauthorized access, use or disclosure of personal data, and (ii) to maintain and abide by a privacy policy which clearly describes how personal data will be collected, used, and disclosed, including without limitation all collection, use, and disclosure contemplated for the respective subscribed Solutions, as may be more fully set forth in the Offerings and Guidelines and Best Practices applicable to each Solution. We agree to be liable for any breach of this paragraph by our subcontractors or agents, if any are involved in performing the Solutions.

We are committed to maintaining compliance with global data privacy legislation, payment card industry data security standards (PCI DSS), and Service Organization Controls (SOC 1 and SOC 2) for financial and security controls. You may visit the Digital River compliance site to request access and review our compliance reports, which are our Confidential Information. Our compliance site is found at https://help.digitalriver.com/compliance/Compliance.htm.

12. Change in Circumstances. If you are subject to a material change in circumstances (including without limitation a change in ownership, a material change in your financial condition, a material change in your products or services, or a change in the laws or regulations applicable to your business) that we believe, in good faith, is likely to cause you or us to be in violation of applicable law, rule or regulation or which represents a significant economic or liability risk to us, we may immediately, on notice to you, (i) require you to establish and maintain a reserve account with us in an amount we in good faith specify, which may be funded by deductions from payments due to you from us, or by charging your account with us, or a deposit by you; (ii) institute a delay in our periodic payments to you; (iii) suspend your use of the Solutions; or (iv) terminate this Agreement.

13. Term and Termination. The Agreement governs your use of the Solutions until all your subscription or license terms have expired or been terminated. The term for each Solution is defined in the Order Form and will automatically renew for one (1) year periods unless either party provides written notice of termination to the other at least ninety (90) days in advance of the end of the then-current term. Either party may terminate the Agreement or an affected Solution (i) upon thirty (30) days’ advance written notice to the other if the other party is in breach of the Agreement and does not cure the breach within the 30-day cure period, or (ii) if the other party initiates or has initiated against it any proceeding under any statute or law for the modification or adjustment of the rights of creditors which is not dismissed within 60 calendar days from the date of filing. In addition, (iii) you may terminate the Agreement or an affected Solution on thirty (30) days’ advance notice if we (a) modify the Agreement or a Solution in a manner that materially impairs the Service, you provide us written notice of termination detailing the impairment within thirty (30) days after the modification becomes effective, and we do not rectify the impairment within the 30-day cure period, or (b) repeatedly fail to make timely settlement payments to you, and (iv) we may suspend or terminate the Agreement or affected Solutions without penalty immediately upon written notice to you in accordance with Sections 3 or 12.

Upon termination (or after any applicable wind down period included in the Agreement), (i) you may no longer use the Solutions (including any of our software, such as our APIs and/or administration interface software) and we will stop providing them, (ii) each party must promptly return or destroy the other party’s Confidential Information (and, if requested, provide an officer’s certification of destruction), (iii) we will provide a facility for thirty (30) days for you to export the personal information of shoppers of your products (except their payment information, such as credit/debit card and account information) provided to us when we perform the Solutions, after which we may delete shopper data, except to the extent we are required by law to maintain it, (iv) we will work with you in good faith to promptly and expeditiously transfer the information necessary for recurring payments to you, provided that you are PCI compliant, the data is transferred in a PCI-compliant manner, and the transfer is compliant with all legal, regulatory, or other requirements applicable to us as the holder of the data, including any applicable notice requirements, which may vary by jurisdiction, and (v) the provisions of the Agreement that require or may require performance after termination will survive.

14. Representations and Warranties; Limitations on Liability; Indemnification.

14.1 Representations and Warranties. You represent, warrant and covenant that:

     - You will operate your business, including your websites and online stores, in a professional manner in accordance with all applicable laws, rules, regulations and generally accepted standards and practices in your industry, including export/import restrictions relating to your products and services (including without limitation those restricting the parties with whom you or we may engage in business due to their location in an embargoed or sanctioned country or their designation on any governmental Restricted Parties List, and those restricting the sale of products for prohibited end-uses).

     - Your products, services and websites (i) do not contain any viruses, spyware, malware or other disruptive software, or any violent, sexual or otherwise offensive or illegal material that may give rise to civil liability on our part (except with respect to video games, within guidelines acceptable by the governing rating agencies, for which you will remain fully responsible), and (ii) do not violate any manufacturing or product-related laws or infringe or misappropriate any third party intellectual property or proprietary rights.

     - You will only provide us with information, items and materials that are complete, accurate and timely, that you own or otherwise have the right to enter into the Solutions or provide to us, and that we may use in connection with the Solutions without infringing or misappropriating any third parties’ privacy, confidentiality or other rights.

14.2 Limited Warranty and Disclaimers. We warrant that we will perform the Solutions in a professional manner in accordance with all applicable laws, rules, regulations and generally accepted standards and practices in our industry.

YOU ACKNOWLEDGE THAT OUR SOLUTIONS SUPPORT YOUR ECOMMERCE BUSINESS AND ARE RELIANT UPON YOUR COMPLIANCE WITH THE AGREEMENT TERMS APPLICABLE TO THE SOLUTIONS YOU ORDER. WE CANNOT AND DO NOT PROVIDE ANY WARRANTIES FOR OUR SOLUTIONS IF YOU ARE NOT IN COMPLIANCE WITH THE AGREEMENT TERMS APPLICABLE TO THE SOLUTIONS YOU ORDER. EXCEPT AS SET FORTH IN THESE TERMS AND THE OFFERINGS AND STANDARDS, THE SOLUTIONS ARE PROVIDED "AS IS" AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND WE DISCLAIM ALL OTHER WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

IN ACCORDANCE WITH RISK ALLOCATIONS THAT ARE STANDARD WITHIN THE PAYMENT AND SERVICES INDUSTRY, THE PRICING FOR WHICH THE SOLUTIONS ARE MADE AVAILABLE TO CLIENTS, AND THE REVENUE WE EARN UNDER THE AGREEMENT COMPARED TO THE REVENUE MADE BY CLIENTS FOR TRANSACTIONS USING THE SOLUTIONS, RISKS BETWEEN US ARE ECONOMICALLY ALIGNED AS FOLLOWS: THE AMOUNT OF OUR LIABILITY IS UNLIMITED FOR OUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 14.3, OUR PAYMENT OBLIGATIONS, OR TO THE EXTENT WE ARE GROSSLY NEGLIGENT OR COMMIT WILLFUL MISCONDUCT. OTHERWISE YOUR EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY CLAIM RELATED TO THE SUBJECT MATTER OF THE AGREEMENT, WHETHER IN CONTRACT, WARRANTY, TORT, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE TOTAL AMOUNT OF ALL RECURRING FEES YOU PAID TO US UNDER THE AGREEMENT DURING THE TWELVE MONTHS PRIOR TO WHEN THE FIRST CLAIM AROSE. WE WILL NOT BE LIABLE FOR ANY (i) LOSS OR INTERRUPTION OF BUSINESS, (ii) ACCESS LIMITATIONS, DELAYS, INTERRUPTIONS OR DISTURBANCES TO THE SOLUTIONS, (iii) MISTAKES, DISTORTIONS OR DELAYS IN TRANSMISSIONS OF ELECTRONICALLY STORED INFORMATION, INCLUDING DISAPPEARANCES OF SUCH INFORMATION, (iv) ACTIONS OR INACTIONS BY YOU OR OF THIRD PARTIES (SUCH AS SHOPPERS OR YOUR SUPPLIERS), (v) AGREEMENTS YOU HAVE WITH YOUR SHOPPERS OR SUPPLIERS, OR FOR YOUR PRODUCTS, SOLUTIONS, OR SYSTEMS, OR (vi) EVENTS BEYOND OUR REASONABLE CONTROL.

ALSO IN ACCORDANCE WITH RISK ALLOCATIONS THAT ARE STANDARD WITHIN THE PAYMENT AND SERVICES INDUSTRY, EXCEPT FOR ANY GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR LIABILITIES WHICH AS A MATTER OF LAW CANNOT BE LIMITED, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUE, OR FAILURE TO REALIZE EXPECTED SAVINGS, ARISING UNDER THE AGREEMENT OR RELATING TO THE SOLUTIONS, EVEN IF THE PARTY WAS ADVISED OF OR COULD HAVE REASONABLY FORESEEN THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY IN THESE TERMS APPLY EVEN IF A REMEDY IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY’S ACCEPTANCE OF THIS SECTION HAS MATERIALLY INDUCED THE OTHER PARTY TO ENTER INTO THE AGREEMENT AND PERMIT THE USE OF AND/OR USE THE SOLUTIONS. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.

14.3 Indemnification. Each party agrees to indemnify, defend and hold the other party harmless against any third party claim, and resulting liabilities, damages and expenses, including reasonable attorneys’ fees (“Claims”), that its business, products or services (in our case, the Solutions) violate any law, rule or regulation or any third party intellectual property rights, or for its fraud, willful misconduct or gross negligence. In addition, because you are responsible for your products and your business, and because our Solutions rely on and process the information and instructions you provide to us, you agree to indemnify, defend and hold us harmless against any Claims for (i) your failure to comply with Section 4 (Your Business), Section 5 (Our “Know Your Customer” and Anti Money Laundering Regulatory Obligations), or Section 6 (Information and Materials You Provide) of these Terms, and (ii) any failure to comply with applicable laws, rules or regulations to the extent the failure is caused by or results from your instructions, actions or omissions.

To be indemnified, the party seeking indemnity must give the indemnifying party prompt written notice of the claim, reasonable assistance and sole authority to defend and settle the claim. In the defense or settlement of an infringement claim hereunder (or if we reasonably believe the Solutions or any portion of the Solutions do or may infringe the rights of a third party), we will have the option at our expense to (i) modify the Solutions to become non-infringing, or (ii) obtain for you the right to continue using the Solutions, or if we determine in our discretion that (i) or (ii) is not reasonably commercially available, then (iii) terminate the Agreement with respect to the affected Solutions and provide you a prorated refund of recurring fees previously received by us hereunder for the affected Solutions corresponding to any period after the effective date of such termination.

15. Modifications. From time to time in the course of our business we may modify the Agreement and/or our Solutions. We will provide at least thirty (30) days' advance notice via electronic posting or e-mail of any material change to the Agreement or to the Solutions to which you subscribe, unless applicable laws or regulatory requirements require us to give earlier notice. We will provide at least forty-five (45) days’ advance notice via e-mail to the Legal Notice email address stated on the Order Form for any changes to these Terms. If the change materially impairs the Solutions, you may terminate the Agreement or the affected Solutions in accordance with Section 13. Subject to your termination rights in Section 13, your continued use of the Solutions after the effective date of any modification to the Solutions or the Agreement constitutes your acceptance of such modification.

16. Electronic Documents. We provide our documents electronically rather than in paper form. We will notify you that a document is available with a link to that document. At any time and without giving advance notice, we may elect not to send a document electronically, in which case a paper copy of the document will be sent to you at your corporate address on file

17. Miscellaneous. These Terms, the applicable Standards, Offerings, Guidelines and Best Practices, and the relevant mutually approved Order Form(s) constitute the entire agreement between the parties with respect to the subject matter hereof and in the applicable Order Form(s), and supersede any previous and contemporaneous agreements and understandings with respect to the subject matter hereof. No provisions in your purchase orders or other business forms will alter the Agreement. Amendments may only be made by a written agreement executed by authorized officers of both parties or by us in accordance with Section 15. If there is any conflict between the provisions in the Agreement and any mutually approved Order Form between the parties, the mutually approved Order Form will control. Notices sent to either party must be given in writing and will be deemed effective on the date of delivery: to you, at the most recent postal or e-mail address you provided to us in your registration account, or to us, at our corporate office identified on our website, attention General Counsel, when delivered by commercial carrier and evidenced by the delivery receipt. The parties are independent contractors, and not partners or joint venturers. Neither party has the right, power or authority to act or create any obligation on behalf of the other party. We may engage the services of subcontractors or agents to assist us in the performance of our obligations. Because a subcontractor (such as a payment provider) or agent may perform the same function for many or all clients, and we require flexibility to switch or alternate subcontractors and agents to ensure service level standards, pricing commitments or other obligations under this Agreement, we are unable to inform individual clients or seek approval from individual clients each time there is a change or reassignment of a subcontractor or agent; however we will be responsible for the acts and omissions of our subcontractors or agents in the performance of such obligations under the Agreement. Neither party may assign the Agreement without the prior written consent of the other party except in connection with a merger or sale of all or substantially all of its assets or equity, but in such event the assigning party must provide prompt written notice to the non-assigning party of the change and the non-assigning party may terminate the Agreement if the assignment is to a direct competitor of the non-assigning party. The Agreement is for the sole benefit of the parties hereto (including our corporate affiliates) and does not create any third-party beneficiaries, whether intended or incidental. No waiver of any provision or breach of the Agreement will be effective unless made in writing, nor will it be construed to be a continuing waiver of such provision or breach. If our U.S. entities are parties to the Agreement as defined in the Order Form, disputes related to the Agreement are governed by the laws of the State of New York, USA, without regard to any conflict of law provisions, and the parties expressly agree to submit to the personal and exclusive jurisdiction of the courts located in Hennepin County, Minnesota, USA for such disputes. If our European entities but not our U.S. entities are parties to the Agreement as defined in the Order Form, disputes related to the Agreement are governed by the laws of England and Wales, without regard to any conflict of law provisions, and the parties expressly agree to submit to the personal and exclusive jurisdiction of the courts located in London, England for such disputes. The parties specifically disclaim application (i) of the United Nations Convention on the International Sale of Goods, 1980, and (ii) of Article 2 of the Uniform Commercial Code as codified. The prevailing party in any action to interpret or enforce the Agreement will be entitled to its reasonable attorneys’ fees as well as all other remedies available to it. A party may seek injunctive relief for any breach of the Agreement, without the necessity of posting a bond in connection therewith. The availability of injunctive relief will be a cumulative, and not an exclusive, remedy available to the parties. If any provision of the Agreement is found to be legally unenforceable, that provision will be enforced to the maximum extent possible and any such unenforceability will not prevent enforcement of any other provision of the Agreement. Any claim by us or you for breach of the Agreement must be brought within two (2) years of the date the party first learns of the breach or else the claim will be forever barred. The Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns. No party will be in breach of the Agreement if it is unable to perform its obligations (other than payment obligations) due to conditions beyond its reasonable control, but if the condition remains in effect for more than thirty (30) calendar days (or if the condition causes, or a party believes in good faith it is likely to cause, a violation of applicable law, rule or regulation or a significant economic or liability risk), either party may terminate the Agreement without cause upon written notice to the other party.

Effective as of July 15, 2020

These Standards apply to the Solutions and are in addition to the terms in the Agreement. Capitalized terms used in these Standards have the same meaning as they do in the Agreement. These Standards are dependent upon your compliance with the best practices for your integration and platform usage, as defined in the Guidelines and Best Practices for the Solution you select, and upon your compliance with your responsibilities as defined in these Standards.

 

Service Levels
(1)	Uptime. The Solution under the Agreement is available at least 99.9% of the time measured over each calendar Quarter (January 1, April 1, July 1, October 1). Availability is calculated separately by platform in accordance with the following formula:
(2)	Limitation: This availability commitment only applies if your usage is less than:
	(A)	1,000,000 milliseconds of compute time per five (5)-minute interval; and
	(B)	6,000,000,000 milliseconds of compute time per month.
(3)	Unavailability. A “service interruption” is any time exceeding five (5) consecutive minutes where our Order Takers (a) do not respond to any valid shopper request, or (b) provide only HTTP response codes 500, 502, 503, or 504 responses to all valid shopper requests, or (c) some combination of (a) and (b). “Order Taker” is defined as those systems within our checkout flow which respond to web requests. A period of “unavailability” (i) commences as of the earlier of the time we detect an incidence of a service interruption or the time that you notify us of the service interruption, and (ii) ends when our Order Takers commence providing routine responses to your shopper requests again. Unavailability shall be monitored by us. Unavailability shall not include any interruption arising from:
	(A)	scheduled maintenance and/or upgrades, including any redundant environments,
	(B)	your failure to follow the Guidelines and Best Practices,
	(C)	our suspension or termination of your right to use the Solution in accordance with the Agreement, or
	(D)	any event beyond our control, which includes without limitation any external interruption of power or telecommunications; denial of service, virus/worm or other attack; the failure or substantial failure of the Internet; the internet service provider or internal telecommunications equipment experienced by you or any of your customers; the browser configurations, hardware and/or software of you or any shopper; and/or any other force majeure event (including without limitation acts of God, terrorism, natural disaster, war, riots, and labor strife).
	We use all reasonable efforts to avoid having to take any redundant environments offline for executing schedule maintenance. Should under exceptional circumstances such maintenance nevertheless prove necessary, we will provide as much notice as practically possible and plan such maintenance in a manner and on a date and time to minimize the potential number of affected potential transactions.
(4)	Shared Responsibility to Mitigate Risk. Security and compliance are a shared responsibility between us and you. We are responsible for taking reasonable precautions to mitigate the risk of unavailability, including but not limited to (a) use of anti-virus and anti-trojan software; (b) installation of available hardware and software patches; (c) implementation of industry standard security measures, such as firewall-based network segmentation, intrusion detection, and anti-dedicated denial of service (“anti-DDOS”) measures; (d) implementation of business continuity and disaster recovery measures, such as application redundancy and scheduled backups; and (e) maintaining redundant infrastructure providers. You are responsible for taking reasonable precautions to mitigate the risk of unavailability of the Solution to you, including but not limited to: (i) implementing proper input filtering, (ii) applying intrusion detection and web application firewall (WAF) practices, (iii) applying anti-DDOS measures, (iv) jointly investigating and resolving security and compliance issues as they impact both you and us from time to time, and (v) properly interpreting HTTP response code 429 from the Solution and waiting the directed amount of time before retrying the intended request.
(5)	Business Continuity and Disaster Recovery. We maintain a business continuity and disaster recovery plan designed to minimize the impact to our operations of a man-made or natural disaster or other similar events which could impact our business operations and/or technology infrastructure. We annually test our ability to comply with our business continuity and disaster recovery plan and will make our results available upon request.
(6)	Issue Resolution. We target resolution of issues, based on their severity. In the event an issue could be classified within more than one Severity Level, we shall initially classify the issue; in addition, we may, upon notice to you, reclassify the priority level of an issue as fixes are rendered and/or developed or the severity of the issue decreases. In the event you disagree with our classification or reclassification, as appropriate, you may contact us to discuss when a further reclassification of the issue is appropriate.

 

Severity Level	Description
Level 1	Impact: Critical Our Classification: Solution is down Acknowledgment: As soon as possible (dependent on circumstances) Issue Resolution: As soon as possible (dependent on circumstances)
Level 2	Impact: High Our Classification: Disruptive problem to the Solution impacting performance or availability Acknowledgment: Within twenty-four (24) hours Issue Resolution: As soon as possible (dependent on circumstances)
Level 3	Impact: Medium Our Classification: Some impact to the Solution; however, not vital to immediate performance or availability Acknowledgment: Within two (2) business days Issue Resolution: Within 5-10 business days of Acknowledgment, unless notified otherwise
Level 4	Impact: Low Our Classification: Minimal impact to the Solution Acknowledgment: Within two (2) business days Issue Resolution: We will evaluate and incorporate into maintenance release as we deem appropriate

 

	For the purposes of this table, the “Acknowledgment” is the time from when we first learn of a problem to when we initially contact to you by email or telephone acknowledging such reported issue; and “Issue Resolution” is when we substantially resolve the issue or begin a plan to resolve the issue, whichever occurs first.
(7)	Remedies. If we fail to meet our availability commitment in any calendar quarter during which we were compensated for your use of the Solution, your sole and exclusive remedy is a service level credit as follows, subject to your rights in case of a continuous failure as described in section 8 below. The service level credit is calculated by applying the service credit percentage to the charges we earned and received less the cost of payment processing for transactions we processed during that calendar quarter for your use of the Solution. We will apply any service credits only against future Solution charges otherwise due from you. Service credits will not entitle you to any refund or other payment from us. Subject to section 8 below, the foregoing is your sole and exclusive remedy for our breach. Quarterly Uptime Percentage Service Credit Percentage Less than 99.9% but greater than or equal to 99.0% 10% Less than 99.0% but greater than or equal to 95.0% 25% Less than 95.0% 50%
	(A	Remedy Procedure. To receive a service credit, you must submit a claim by opening a case with our Customer Success Team. To be eligible, we must receive your credit request within 30 days’ after the end of the calendar quarter in which the service level commitment was not met and must include:
		(i)	the words “SLA Credit Request – Solution” in the subject line;
		(ii)	the dates and times of each period of unavailability that you are claiming;
		(iii)	the calendar quarter with respect to which you are claiming service credits;
		(iv)	Your request logs that document the errors and corroborate your claimed outage (any confidential or sensitive information in the logs should be removed or replaced with asterisks).
		If we confirm the Quarterly Uptime Percentage is less than our service commitment, then we will issue you a service credit within one billing cycle following the quarter in which we confirm your request. If you don't provide your request and other information needed above, you will be disqualified from receiving a service credit.
(8)	Alternative Remedy in Case of Continuous Failure. Should we fail to meet our availability commitment in any two (2) consecutive calendar quarters during which we were compensated for your use of the Solution, you shall, as an alternative remedy, be entitled to terminate the Agreement upon thirty (30) days’ prior written notice to us. For the avoidance of doubts, in case you decide to terminate the Agreement based on this provision you shall not be entitled to receive additional service credits for the calendar quarter giving rise to such termination right. In the event you fail to provide us with notice of such termination within forty-five (45) calendar days of the end of the calendar quarter giving rise to such termination right, you shall be deemed to have waived its right to terminate the Agreement for such failure (but shall have the right to so terminate if the condition is met in any subsequent two (2) calendar quarters).

Effective as July 23, 2020

These Standards are in addition to the terms in the Agreement. Words used in these Standards without a definition but with an initial capital letter have the same meaning (i) as found in Regulation (EU) 2016/679 as of 25 May 2018 and any binding orders thereof issued by relevant authorities; (ii) as defined in Section 13, “Definitions”, included at the end of these Standards; or (iii) as found in the Agreement. Where a term in these Standards conflicts with a corresponding term in the Agreement, the term in these Standards will control with respect to the parties’ obligations under these Standards.

1. Background and Purpose. We hold ourselves to the highest ethical standards of conduct in our daily activities, including our data handling practices. As such, these Standards were created to allow us to have an open data sharing arrangement with you, while ensuring that any transfers of data between the parties are handled appropriately under Data Protection Legislation. Here, we have laid out the ground rules for which data will be shared, including listing our respective responsibilities under Data Protection Legislation.
2. Obligations of the Parties. We understand fully our obligations under Data Protection Legislation and we need to ensure that data is shared according to such laws. As such, we need to confirm that the parties will make every effort to process the Personal Data correctly under Data Protection Legislation. Additionally, because under GDPR only data controllers collect personal data from data subjects (and are also independently responsible for determining the legal bases under which they obtain and process the data), both us and you maintain the responsibility of being our own (Independent) Data Controllers for Personal Data and our respective processing activities.

3. Description of Personal Data and Purpose of Processing. Each party will process Personal Data of those purchasers that purchase a title, license right, and/or usage right to a product using our Service (“Shopper”). Those categories of Personal Data may include names, addresses, email addresses, phone numbers, IP addresses, and other related order information.

   The Personal Data will be processed independently by each party for the following purposes:

   • To provide the Shoppers with the services they have requested, in accordance with the relevant party’s privacy policy,
   • To ensure the performance of the parties’ obligations under the Agreement,
   • To provide other similar services to Shoppers where the Shoppers have, if applicable, consented to such services, and as decided by each party as its own (Independent) Data Controller, and
   • To share the data with third parties and use Processors to process the data so long as the parties comply with Data Protection Legislation.

4. Information Provided to Shoppers. The parties agree to include the applicable link to each party’s privacy policy, prior to the collection, by such party, of the Shopper’s Personal Data, so that it is clear to the Shopper which privacy policy applies to the processing of their data. For the avoidance of doubt, your privacy policy will govern how you will process Personal Data; and, ours will govern how we will process Personal Data. We are each responsible for fulfilling our promises as outlined in our respective privacy policies.

   Where applicable, you will gather and document the applicable consents from Shoppers for the processing of their data, such as for marketing activities. And, where there is another lawful basis for the processing (such as “Legitimate Interests”) you will also document the applicable lawful basis and our reasoning behind such decision(s).

5. Data Handling Requests; Notifying the Other party. Data Protection Legislation such as GDPR (as defined in Section 13, “Definitions”) grants Shoppers certain rights regarding their personal data that a Data Controller holds and obligates Data Controllers to facilitate the exercise of those rights. As such, each party is responsible for facilitating the exercise of Shoppers’ rights under applicable law, and must send any applicable data handling requests to the other party without undue delay.

   Such rights may include the right to consent, and to withdraw the consent, right of access, right to rectification, restriction of Processing, erasure, data portability, to object to Processing, and the right not to be subject to automated individual decision making. It is up to each party to ensure the Shoppers’ rights are honored as appropriate, considering applicable legal requirements. It is also each party’s responsibility to ensure that the Shopper has been appropriately authenticated under Data Protection Legislation prior to acting on any access request.

   Specifically as it relates to data erasure requests from an Shopper, we request that you log into our administration interface software (or successor user interface) and click on the “Request removal of Personal Information” button, which will automatically trigger a notification to us. You may also send any communications related to such data handling requests to the Digital River contact point(s) noted in the Order Form under “Privacy”.

6. Security of Personal Data. Both parties agree to take reasonable steps to provide a level of security appropriate to the sensitivity of the Personal Data in each party’s control.

   • Both parties represent, warrant and covenant to the other party that (i) it has implemented technical and organizational security measures, which meet industry standards and comply with all applicable Data Protection Legislation, to prevent any unauthorized access, use or disclosure of Personal Data, and (ii) its processing of Personal Data will at all times be performed in accordance with such technical and organizational security measures; and

   • To the extent required by applicable law, the parties will not transfer the Personal Data to a processor, vendor, service provider, subcontractor or sub-processor (a “Processor”), unless (i) it has first concluded a written agreement with the Processor that imposes obligations and restrictions on the third-party at least as restrictive as those that apply to the other party under these Standards (“Processing Agreements”), and (ii) such transfer complies with applicable Data Protection Legislation; and

   • The party who has transferred Personal Data to the Processor shall be liable for the acts or omissions of that Processor with respect to Personal Data.

7. Security Breach. With respect to any Security Breach, the parties will take all steps reasonably necessary to (i) investigate and remediate the effects of such occurrence, (ii) mitigate any harm to those Shoppers that are affected or could be affected by such occurrence, (iii) prevent the re-occurrence, and (iv) comply with applicable Data Protection Legislation.

   Each party shall notify the other party in writing or by phone (for Digital River, the phone number is 952-253-1234, attention: Legal) after becoming aware of any compromise of the Personal Data that may affect the other party. The responsible party shall also notify the Supervisory Authority and Shoppers, where required and within the applicable time-period, under Data Protection Legislation. As such, the parties will coordinate with, consult with and keep the other party regularly informed related to its response to any Security Breach.

8. Transfers of Personal Data Outside of the EEA. A party shall not transfer Personal Data (nor permit any Personal Data to be transferred) to a territory outside of the EEA unless it has taken such measures as are necessary to ensure the transfer is in compliance with applicable law. The parties acknowledge that adequate protection for the Personal Data must exist for any transfer and will, if needed, enter into an appropriate written agreement governing such transfer of Personal Data, including, but not limited to the EU Standard Contractual Clauses, unless another adequacy mechanism for the transfer exists, including without limitation Privacy Shield for transfers to the United States of America.

   To the extent that the parties’ transfer of Personal Data is reliant on the Standard Contractual Clauses for Controller to Controller transfers, the Standard Contractual Clauses including its Annex B shall form part of the Agreement. As such, the parties agree that the Standard Contractual Clauses using the Annex B which is attached at the end of these Standards, plus the Privacy details in the Order Form, shall constitute the completed Standard Contractual Clauses. Where and to the extent the Standard Contractual Clauses apply pursuant to this section, if there is any conflict between these Standards and the Standard Contractual Clauses, the Standard Contractual Clauses shall prevail.

9. Liabilities, Indemnification. Each party agrees to be held solely liable for the performance of its obligations under Data Protection Legislation and these Standards, and any fines imposed by a Supervisory Authority (or its equivalent) for that party’s failure to comply with Data Protection Legislation or these Standards shall be paid by that party that failed to comply.

   While nothing in the Agreement shall be construed as making the parties, acting as (Independent) Data Controller, involved in the same processing, should, pursuant to Article 82(4) of the GDPR, a party be found to be liable for the entire damage arising from a breach or breaches of the GDPR relating to activities under these Standards, in order to ensure effective compensation of one or more individuals, then that party shall indemnify the other party for that portion of the compensation attributable to any breaches of the GDPR for which it is responsible.

10. Requests from Supervisory Authorities. The parties agree to cooperate with each other when they receive a request from a Supervisory Authority or court of law that impacts the other party. Where one party receives the request (the “Receiving Party”), the Receiving Party shall communicate the request to the other party promptly, and where possible, prior to responding to the Supervisory Authority or court of law. However, if this is not possible due to the immediacy of the request, the Receiving Party shall communicate the request to the other party as soon as reasonably possible after submission of the response.

11. Survival of these Standards. Regardless of whether the Agreement is terminated or expires, if either party has access to, processes or otherwise retains Personal Data, the parties agree to comply with all applicable requirements under Data Protection Legislation. Therefore, the applicable sections of these Standards that relate to the parties’ obligations under Data Protection Legislation, survives any termination or expiration of the Agreement. To the extent there are no further obligations of the parties under Data Protection Legislation, these Standards will terminate. Also, and for the avoidance of doubt, each party is responsible for destroying the Personal Data in accordance with applicable laws and neither party is required to return to the other party the Personal Data that is in their possession.

12. Applicable Law and Dispute Resolution. These Standards (including the Agreement) constitute the entire agreement between the parties with respect to the subject matter hereof, and these Standards supersede all prior agreements or representations, oral or written, regarding such subject matter. These Standards are governed by the law governing the Agreement, except for where the applicable Standard Contractual Clauses are executed between the parties, which contain specific provisions on the applicable law in Clause IV, “Law applicable to the clauses.”

13. Definitions. The following definitions apply to these Standards:

    • Legitimate Interests means that processing is permitted if it is necessary for the purposes of legitimate interests pursued by the controller (or by a third party), except where the controller’s interests are overridden by the interests, fundamental rights or freedoms of the affected Shoppers which require protection.

    • Regulation (EU) 2016/679 or the General Data Protection Regulation (GDPR) is that regulation of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data, which was enforceable as of 25 May 2018.

    • Data Protection Legislation means any applicable data protection, security, consumer protection and related regulatory and legal obligations, the GDPR (defined above), the California Consumer Protection Act and any binding orders issued by relevant bodies.

    • Standard Contractual Clauses are the contractual requirements approved by the European Commission from time to time for the transfer of Personal Data from EU Controllers to non-EU or EEA Controllers. See the European Commission’s Decision 2004/915/EC of 27 December 2004, available at: https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-outside-eu/model-contracts-transfer-personal-data-third-countries_en (as that URL is updated from time to time).

ANNEX B TO SET II STANDARD CONTRACTUAL CLAUSES

DESCRIPTION OF THE TRANSFER

Data subjects:

The personal data transferred concern the following categories of data subjects:

• Shoppers and other persons (e.g., third parties) who do, or might do, business with the parties so as to conduct its business.
• The parties’ employees and/or contractors who assist with the business relationship.

Purposes of the transfer(s):

The transfer is made for the following purposes:

The personal data will be processed independently by each party for the following purposes:

• To provide the Shopper with the services they have requested, in accordance with the relevant party’s privacy policy,
• To ensure the performance of the parties’ obligations under the Agreement,
• To provide other similar services to Shoppers where the Shoppers have, if applicable, consented to such services, and as decided by each party as its own (Independent) Data Controller, and
• To share the data with third parties service providers of the parties and use Processors to process the data so long as the parties comply with Data Protection Legislation.

Categories of data:

The personal data transferred concern the following categories of data:

Personal data from Shoppers such as information that can be used to identify an individual, either alone or in combination with other information available to the parties, such as a name, shipping or billing address, e-mail address, and phone number.

Recipients:

The personal data transferred may be disclosed only to the following recipients or categories of recipients:

Employees and/or direct or indirect contractors of the parties who are being considered to do, who do, or have done work for, or for the benefit of, the respective data controller.

Sensitive data (if appropriate):

The personal data transferred concern the following categories of sensitive data:

For clarity, the parties understand and agree that any payment information (e.g., purchaser payment account information, including but not limited to credit/debit card number, account and routing number, card expiration date, and card verification code or value) will be exclusively received and handled by Digital River and not be made available to you. As such, sensitive data will not be transferred between Digital River and you.

Contact points for data protection inquiries: (refer to Order Form for contact points)

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Classification Code	Description (all are Universal ECCN codes)
1A999	1A999 Specific processing equipment, n.e.s., as follows: a. Radiation detection, monitoring and measurement equipment, n.e.s.; b. Radiographic detection equipment such as x-ray converters, and storage phosphor image plates
3A991	Electronic Devices and Components not controlled by 3A001. Note: Items classified under the sub-heading 3A991.a.1 are subject to increased licensing requirements and cannot be resold by Digital River.
3A992	3A992 General Purpose electronic equipment not controlled by 3A002.
3A999	3A999 Specific Processing Equipment, (Frequency Changers, Mass Spectrometers, flash x-ray machines, pulse amplifiers, electronic equipment for time delay generation or time interval measurement)
3B991	Equipment not controlled by 3B001 for the Manufacture of Electronic Components and Materials, and Specially Designed Components and Accessories Therefor
3B992	Equipment not controlled by 3B002 for the Inspection or testing of electronic components and materials, and specially designed components and accessories therefor
3C992	Positive resists designed for semiconductor lithography specially adjusted (optimized) for use at wavelengths between 370 and 245 nm.
3D991	"Software" specially designed for the "development", "production", or "use" of electronic devices or components controlled by 3A991, general purpose electronic equipment controlled by 3A992, or manufacturing and test equipment controlled by 3B991 and 3B992; or "software" specially designed for the "use" of equipment controlled by 3B001.g and .h.
3E991	"Technology" for the "development", "production", or "use" of electronic devices or components controlled by 3A991, general purpose electronic equipment controlled by 3A992, or manufacturing and test equipment controlled by 3B991 or 3B992, or materials controlled by 3C992.
4A994	Computers, "electronic assemblies", and related equipment not controlled by 4A001, 4A002, or 4A003, and specially designed components therefor.
4D993	"Program" proof and validation "software", "software" allowing the automatic generation of "source codes", and operating system "software" that are specially designed for real time processing equipment.
4D994	"Software" other than that controlled in 4D001 specially designed or modified for the "development", "production", or "use" of equipment controlled by 4A101, 4A994, 4B994, and materials controlled by 4C994.
4E992	"Technology" other than that controlled in 4E001 for the "development," "production," or "use" of equipment controlled by 4A994, or "software" controlled by 4D993 or 4D994.
4E993	"Technology" for the "development" or "production" of equipment designed for "multi-data-stream processing."
5A002	"Information security" systems, equipment and components therefor, as follows (see List of Items Controlled). Note: Items classified under this ECCN must also be eligible for license exception "ENC" or cannot be resold by Digital River.
5A991	Telecommunication Equipment, Not Controlled by 5A001.
5A992	Equipment not controlled by 5A002 Items classified under this ECCN must also be eligible for license exception "ENC" or cannot be resold by Digital River.
5B991	5B991 Telecommunications test equipment
5C991	Preforms of glass or of any other material optimized for the manufacture of optical fibers controlled by 5A991.
5D002	Encrypted "Software". Note: Items classified under this ECCN must also be eligible for license exception "ENC" or cannot be resold by Digital River
5D991	"Software" specially designed or modified for the "development", "production" or "use" of equipment controlled by 5A991 and 5B991, and dynamic adaptive routing software as described in the List of Items Controlled.
5D992	"Information Security" "Software" not controlled by 5D002.
5E991	"Technology" for the "Development", "Production" or "Use" of Equipment Controlled by 5A991 or 5B991, or "Software" Controlled by 5D991, and Other "Technologies" as Follows (see List of Items Controlled)
5E992	"Information Security" "technology" according to the General Technology Note, not controlled by 5E002.
6A991	Marine or terrestrial acoustic equipment, n.e.s., capable of detecting or locating underwater objects or features or positioning surface vessels or underwater vehicles; and specially designed components, n.e.s.
6A993	Cameras, not controlled by 6A003 or 6A203, as follows (see List of Items Controlled). US export license is required to export, reexport or transfer (in-country) products classified as 6A993.a to a "Military End-User" in any country except the US or Canada.
6A994	6A994 Optics, not controlled by 6A004.
6A995	"Lasers" (see List of Items Controlled).
6A996	"Magnetometers" not controlled by ECCN 6A006, "Superconductive" electromagnetic sensors, and specially designed components therefore, as follows (see List of Items Controlled).
6A997	6A997 Gravity meters (gravimeters) for ground use, n.e.s.
6C992	Optical sensing fibers not controlled by 6A002.d.3 which are modified structurally to have a `beat length' of less than 500 mm (high birefringence) or optical sensor materials not described in 6C002.b and having a zinc content of equal to or more than 6% by `mole fraction'.
6C994	Optical materials.
6D992	"Software" specially designed for the "development" or "production" of equipment controlled by 6A992, 6A994, or 6A995.
6D993	Other "software" not controlled by 6D003.
6E992	"Technology" for the "development" or "production" of equipment, materials or "software" controlled by 6A992, 6A994, or 6A995, 6B995, 6C992, 6C994, or 6D993.
6E993	6E993 Other "technology", not controlled by 6E003, as follows (see List of Items Controlled).
7B994	Other equipment for the test, inspection, or "production" of navigation and avionics equipment.
7D994	"Software", n.e.s., for the "development", "production", or "use" of navigation, airborne communication and other avionics.
7E994	"Technology", n.e.s., for the "development", "production", or "use" of navigation, airborne communication, and other avionics equipment.
8A992	Vessels, Marine Systems or Equipment; Not Controlled by 8A001, 8A002 or 8A018, and Specially Designed Parts Therefor
8D992	"Software" specially designed or modified for the "development", "production" or "use" of equipment controlled by 8A992.
8E992	"Technology" for the "development", "production" or "use" of equipment controlled by 8A992.
EAR99	Subject to the Export Administration Regulations, but not controlled elsewhere on the Commerce Control List.

The short description of your goods or services presented to the purchaser before they finalize their purchase

should describe the main characteristics of your goods or services being purchased. If there may be technical

requirements or limitations to your goods or services, these must be included in your short description as well

(i.e. compatible operating system for software). If the goods or service sold have a limited term or use, this

must be included in your short description as well (i.e. a service which is paid for annually will list the term “1

year” or “yearly”). When appropriate, to add clarity, a link to access further details about the goods or services

can be used in addition to the short description.

Digital River Preferred Distribution Fulfillment Partners:

• A&C Systems (Belgium)

• ALSO (Denmark)

• D&H (US)

• Exertis (UK)

• Ingram Micro (Canada, France, Germany, Italy, Netherlands, New Zealand, Sweden, Switzerland, UK, and US)

• Synnex (Australia, Japan, and US)

• TechData (France, Spain, UK, and US)

• Tekwind (Japan)

• West Coast Distribution (UK)

Digital River Preferred Warehouse Partners:

• Arvato (US)
• DCL (Canada and US)
• Fulfillment Solutions (Netherlands)
• Ingram Micro Mobility (US)
• Kerry Logistics (Hong Kong)
• Shipwire (Global)

LAST UPDATED: January 20, 2014

1.	SCOPE AND APPLICATION
1.1	THESE TERMS OF SALE ("TERMS") CONSTITUTE A BINDING LEGAL CONTRACT BETWEEN (A) US, DR GLOBALTECH, INC., WITH OFFICES AT 10380 BREN ROAD WEST, MINNETONKA, MN 55343, THE SELLER (WITH REFERENCES TO "US", "WE", OR "OUR" BEING CONSTRUED ACCORDINGLY), AND (B) YOU, THE PURCHASER (WITH REFERENCES TO "YOU" OR "YOUR" BEING CONSTRUED ACCORDINGLY). THESE TERMS APPLY TO ALL OFFERS, SALES AND PURCHASES OF THIRD PARTY PRODUCTS (INCLUDING, WITHOUT LIMITATION, HARDWARE, SOFTWARE, LICENSE RIGHTS, AND SERVICE USE RIGHTS RESOLD BY US) ("PRODUCTS") OR ACCESS RIGHTS TO SERVICES WE DIRECTLY PROVIDE (INCLUDING, WITHOUT LIMITATION, EXTENDED DOWNLOAD SERVICE OR REGISTRATION BACKUP SERVICE) ("DR SERVICES"), WHICH OCCUR EITHER (A) THROUGH THE ONLINE STORE ON WHICH WE POST THESE TERMS, OR (B) THROUGH ANY OTHER MEANS THROUGH WHICH WE ENGAGE IN THE SALE OF PRODUCTS AND DR SERVICES, SUCH AS BUT NOT LIMITED TO ORDERS BY PHONE (THE WEBSITE AND SUCH OTHER MEANS, A "DR COMMERCE SOLUTION"). BY ORDERING ANY PRODUCT OR DR SERVICE THROUGH A DR COMMERCE SOLUTION OR BY VISITING THIS ONLINE STORE, YOU SIGNIFY YOUR ACCEPTANCE OF THIS AGREEMENT.
1.2	We value our relationship with you and consider our approach to privacy of the information you provide in your use of the DR Commerce Solution to be an important aspect of that relationship. Our Privacy Statement governs the collection and use of information through the DR Commerce Solution. By submitting your personally identifiable information to us in relation to your order, you consent to such information being processed to fulfill your order and in accordance with our Privacy Statement. The Privacy Statement is incorporated by reference into and is made a part of this Agreement. To view the Privacy Statement applicable to our collection and use of information through the DR Commerce Solution, please click here.
1.3	ALL ORDERS ARE SUBJECT TO YOUR CONSENT TO ANY APPLICABLE LICENSE AGREEMENT OR USAGE TERMS IS DELIVERED WITH, INCLUDED IN, OR PRESENTED IN CONNECTION WITH YOUR PRODUCT OR DR SERVICE. If you do not agree to the license or usage terms once you see them, do not accept them and contact customer service.
1.4	When a customer enters a brick-and-mortar store, the customer is bound by the store rules in effect on the date of his or her visit. Similarly, you are bound by the version of these Terms in effect on the date of each order you place through this DR Commerce Solution. These Terms may change from time to time, so please review them upon submission of each order, even if you have reviewed them before.
1.5	ALL ACCEPTED ORDERS ARE FINAL, NON-CANCELABLE AND NON-REFUNDABLE, EXCEPT AS SPECIFIED IN THE RETURNS POLICY APPLICABLE TO YOUR PURCHASE.
2.	ORDER PLACEMENT AND ACCEPTANCE; ONLINE CONTRACTING
2.1	Commerce Solution as accurately as possible. However, we do not warrant that the prices, quotations, anticipated delivery dates, and descriptions made or referred to on the DR Commerce Solution or any related websites are accurate, complete, reliable, current, or error-free. The prices, quotations and descriptions made on the DR Commerce Solution are subject to availability, do not constitute an offer and may be withdrawn or revised at any time prior to our express Acceptance of your order (as described below).
2.2	All Product specifications, illustrations, drawings, particulars, dimensions, performance data and other information on the DR Commerce Solution or related pages, or otherwise made available by us or a Product manufacturer or publisher, are intended to represent no more than a general illustration of the Products and do not constitute a warranty or representation by us that the Products will conform with the same. You must refer to the manufacturer's specifications or warranty documentation to determine your rights and remedies in this regard.
2.3	While we make every effort to ensure that items appearing on the DR Commerce Solution are available, we cannot guarantee that all items are in stock or immediately available when you submit your order. We may reject your order (without liability) if we are unable to process or fulfill it. If this is the case, we will refund any prior payment that you have made for that item.
2.4	An order submitted by you only constitutes an offer by you to us to purchase Products or DR Services subject to these Terms at the price and on the terms stated in the order, and is subject to our subsequent Acceptance (as defined below), irrespective of whether the button or link you press or activate to submit your order to us includes words such as “complete order” or otherwise indicates that it is the final step in completion of your order. Any order confirmation email received by you prior to our Acceptance shall constitute an acknowledgment of our receipt of your offer only, and not an acceptance of your offer.
2.5	You acknowledge and agree that if you are placing an order through a website, by clicking or activating the button or hyperlink to submit your order, you are placing a legally binding offer. You consent to: (i) the use of electronic communications in order to enter into contracts and place orders with us; and (ii) the electronic delivery of notices, policies and records of transactions initiated or completed by you online. You have the right to withdraw your consent to electronic contracting and to electronic delivery, but if you do, we may cancel your order and/or your access to DR Services and Third Party Services. If you do not consent to receive any notices electronically, you must stop using the DR Commerce Solution.
2.6	Our acceptance of your order only occurs at such time that we have both (a) dispatched your Product order and/or provided you with access to DR Services, and (b) received payment of the purchase price of your order through settlement of funds via your provided credit card or other payment method ("Acceptance"). We may cancel your order at any time and for any lawful reason prior to Acceptance. Prior to Acceptance, an automatic e-mail acknowledgment of your order may be generated. Please note that any such automatic acknowledgment does not constitute a formal acceptance of your order.
2.7	We may keep records of orders received, accouterments, acceptances and other contract records after Acceptance for a period not to exceed the maximum period permitted by law. We may be able to provide you with copies on written request; however you must make sure you print a copy of all such documents and these Terms for your own records.
2.8	If we have cause to believe that you are unable to pay your debts as they fall due, you fail to pay any amount by the due date or breach any of these Terms, we believe you have engaged in fraud or criminal activity in connection with your use of the DR Commerce Solution, or we are unable to process payment to the payment method you provided with your offer, then, without prejudice to any of our other rights, we may do any or all of the following: (a) stop any Products in transit to you; (b) suspend further deliveries of Product if on an ongoing basis; (c) stop or suspend provision of DR Services; (d) cancel or revoke issues Service Use Rights for Third Party Services; (e) cancel any automatic renewal plan in which you have elected to participate; and/or (f) cancel any and all other contracts between us and you.
3.	PRICING AND PAYMENT TERMS
3.1	Prices do not include shipping and handling, expedited service, or sales taxes, if applicable, which will be added to your total price. You are responsible for any shipping and handling charges and state and local sales or use taxes that may apply to your order. If the price of a Product is obviously incorrect, regardless of whether it is an error in a price posted on the DR Commerce Solution or otherwise communicated to you, then we reserve the right, at our sole discretion, to cancel your order and refund to you the amount that you paid, regardless of how the error occurred.
3.2	Prices payable for Products or DR Services are those in effect at the time of Acceptance, unless otherwise expressly agreed. Prices may be indicated on the DR Commerce Solution or an order acknowledgment but the authoritative price in the event of any discrepancy, is the price that is notified to you on our Acceptance through the charge placed through your selected payment method. Payment shall be made by the payment method selected during your order completion process through the DR Commerce Solution. We will charge credit or debit cards on dispatch of the Product or commencement of DR Services. We reserve the right to verify and/or authorize credit or debit card payments prior to Acceptance.
3.3	Except as expressly provided elsewhere in these Terms or the DR Commerce Solution, payment may be taken in full notwithstanding any claim for short delivery or defects.
3.4	Where the payment is invoiced, each invoice shall be due and payable in full by the due date specified on the invoice, and if no date is specified on the invoice, within thirty (30) days of the date of invoice. If you fail to pay invoiced amount when due, we may (a) by notice declare all invoiced amounts unpaid at that date to be immediately due and payable, and (b) take all actions determined necessary and appropriate by us to collect such unpaid amount.
3.5	No counterclaim or set-off may be deducted from any payment due without our written consent. We may also take action against you for the price of Products at any time after payment has become due even though title or rights to those Products may not yet have passed to you.
3.6	If you elect to use the services of a third party payment or billing provider in connection with your purchase from us, your use of such services will be subject to the third party provider’s own terms and conditions. You may be required to create an account with such third party provider and/or provide that third party provider with your bank account or credit/debit card details. We are not responsible for, and you agree to hold us harmless from and against any liability resulting from, the acts or omissions of any third party payment or billing provider.
3.7	Any extension of credit allowed to you may be changed or withdrawn at any time. Interest shall be chargeable on overdue amounts accruing on a daily basis at the maximum amount permitted under applicable law from the due date for payment until our receipt of the full amount (whether before or after judgment). You shall indemnify us on demand against any out of pocket expenses incurred in relation to recovery of any overdue amounts.
4.	DELIVERY
4.1	We will use all commercially reasonable efforts to deliver Products in a timely manner. For Products delivered electronically, we will deliver such Products by electronic transmission or via download. Delivery timescales/dates specified on the DR Commerce Solution, in any order acknowledgment or elsewhere are estimates only.
4.2	The places that we deliver to are listed on the Site ("Territory"). Delivery shall be to a valid address within the Territory submitted by you and subject to Acceptance ("Delivery Address"). You must check the Delivery Address on any order acknowledgment or Acceptance we provide, and notify us of errors or omissions as soon as possible. We reserve the right to charge you for any extra costs arising from changes you make to the Delivery Address after you submit an order.
4.3	Where we deliver Products by installments, each installment constitutes a separate contract and any defect in any one or more installments shall not entitle you to repudiate the contract as a whole nor to cancel any subsequent installment.
4.4	Save as otherwise provided in these Terms, risk of loss of or damage to the Products passes to you (a) for Products delivered digitally, upon the provision to you of a download link for Software, or of a license key or Service Use Rights, via email or other electronic delivery method; and (b) for Products delivered physically, upon delivery of a product to the delivery location (if no signature is required for delivery, you accept all risk of loss for theft or loss of the delivered product following delivery to the delivery location).
5.	REJECTION, DAMAGE OR LOSS IN TRANSIT; PRODUCT WARRANTY
	Except as set out above or under any applicable returns policy presented on the DR Commerce Solution and applicable to your purchase of a Product or DR Service (“Returns Policy”) and subject to any rights you have under applicable law that cannot be excluded or limited by these Terms:
5.1	We shall not be liable and you shall not be entitled to reject Products or DR Services, except for:
	(a)	Damage to or loss of Products or any part thereof in transit (where the Products are carried by our own transport or by a carrier on our behalf) for which you notify us in writing of such damage or loss within 5 working days of your receipt of the Products (if damaged) or 5 working days of the anticipated delivery date of the Products (if lost);
	(b)	Defects in Products (not being defects caused by any act, neglect or default on your part) for which you notify us of such defect within 30 days of your receipt of the Products.
	(c)	Defective performance of DR Services (not being defects caused by any act, neglect or default on your art) for which you notify us of such defective performance within 5 days of such defect becoming apparent.
5.2	We shall not be liable for any damage or losses arising from defective installation of the Products; from the use of the Products in connection with other defective, unsuitable or defectively installed equipment; your negligence; improper use; or use in any manner inconsistent with the manufacturer's specifications or instructions.
5.3	If you refuse or fail to take delivery of Products, any risk of loss or damage to the Products shall nonetheless pass to you, and without prejudice to any other rights or remedies we have:
	5.3.1	We shall remain entitled to payment in full for the Products or DR Services delivered;
	5.3.2	We may effect delivery by whatever means we consider appropriate or store Products at your risk, and you shall be liable for, and shall pay on our demand, all costs of Product storage and any additional costs incurred as a result of such refusal or failure to take delivery; and
	5.3.3	We shall be entitled 30 days after the agreed date for delivery to dispose of Products in such manner as we determine and may set off any proceeds of sale against any sums due from you.
5.4	Except to the extent required as a result of any mandatory rights you have as a consumer under applicable law, you shall not be entitled to reject the Products in whole or in part by reason of short delivery and shall pay in full notwithstanding short delivery or non-delivery unless you notify us in writing of any claim within 7 days of the latest of the date of receipt of the relevant invoice or delivery whereupon you shall pay for the quantity actually delivered.
5.5	Where there is a shortage or failure to deliver, or any defect in or damage to a Product or Service, we may at our option:
	(a)	(in the case of Product shortage or non-delivery) make good any such shortage or non-delivery and/or
	(b)	in the case of failure to perform or defective performance of a Service, make good such failure or defective performance; and/or
	(c)	in the case of damage or any defect(s) in the Product and in accordance with any applicable Returns Policy:
		(i)	Replace or repair the Product upon you returning the Product; or;
		(ii)	Refund the price paid in respect of any Products found to be damaged or defective.
	However, your rights of repair or replacement of any Products or any part or parts thereof which are found to be defective will (except where agreed otherwise) be negated or rendered void where Products have been repaired or altered by persons other than the manufacturer, us or any authorized dealer; defective Product or Products have not been returned together with full details in writing of the alleged defects within 30 days from the date on which such Products were delivered; and/or defects are due (wholly or partially) to mistreatment, improper use or storage or maintenance or installation, or failure to observe any manufacturers' instructions or other directions issued or made available by us in connection with the delivered Products.
5.6	You will have the benefit of any manufacturer's, licensor's or supplier's warranty provided by the manufacturer, licensor or supplier to you in connection with your purchased Products and should refer to the relevant documentation supplied with the Product in this regard. (If applicable, the Returns Policy may also set out procedures applicable to repairs or replacement of defective Products delivered.)
6.	SOFTWARE AND SERVICE USE RIGHTS
6.1	Where any Product supplied is or includes software ("Software"), this Software (a) is licensed to you (and not sold to you) by the licensor/owner subject to their license agreement or terms included with such Software or presented during your checkout process or software installation process ("License Terms"). In addition:
	6.1.1	Such Software may not be copied, adapted, translated, made available, distributed, varied, modified, disassembled, decompiled, reverse engineered or combined with any other software, save to the extent that (i) this is permitted in the License Terms, or (ii) applicable law expressly mandates such a right which cannot legally be excluded by contract.
	6.1.2	Save to the extent provided for in any applicable License Terms, your rights of return and/or to a refund under these Terms and any applicable Returns Policy do not apply in the event that you open the Software shrink-wrap and/or break the license seal and/or use the Software.
	6.1.3	Except to the extent expressly provided by us in writing or under relevant License Terms, Software is provided 'as is' without any warranties, terms or conditions as to quality, fitness for purpose, performance or correspondence with description and we do not offer any warranties or guarantees in relation to Software installation, configuration or error/defect correction. You are advised to refer to any License Terms with regards to determining your rights against a manufacturer, licensor or supplier of the Software.
6.2	With respect to your purchase of an service use right associated with a software-as-a-service, platform-as-a-service, or infrastructure-as-a-service offering operated and provided by a third party (“Third Party Service”), we are selling you an intangible right to access, use, and/or participate in such Third Party Service for a specified usage duration (a “Service Use Right”) and we are not the provider or operator of such Third Party Service. Your use of a Third Party Service is subject to the relevant terms of use or other license terms between you and the Third Party Service operator (and not us) related to such Third Party Service ("Service Terms"). You agree and acknowledge that these Terms only apply to our sale of Service Use Rights to you, and do not apply to your use of a Third Party Service. The company or entity which operates the Third Party Service is solely responsible for fulfilling, operating and providing the Third Party Service for which we resell you a Service Use Right. You agree to hold us harmless from and against any liability resulting from your use of, or inability to use, a Third Party Service, except that we (either directly or through our subcontractor) will provide reasonable customer support to you in connection with the fulfillment to you of access credentials as part of your purchased Service Use Right. We disclaim any warranties, terms or conditions as to quality, fitness for purpose, performance or correspondence with description and we do not offer any warranties or guarantees in relation to the availability, use or results from using any Third Party Service for which we sell Service Use Rights. You are advised to refer to any Service Terms with regards to determining your rights against the operator of a Third Party Service.
7.	WAIVER AND LIMITATION OF LIABILITY; RISK ALLOCATION
7.1	YOU UNDERSTAND AND AGREE THAT WE ARE NOT THE MANUFACTURER OF THE PRODUCTS WE OFFER FOR SALE THROUGH THE PROPERTY, AND ARE NOT THE OPERATOR OF THIRD PARTY SERVICES FOR WHICH WE OFFER SERVICE USE RIGHTS FOR SALE THROUGH THE PROPERTY. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE PRODUCTS AND DR SERVICES THAT YOU PURCHASE FROM US ARE PROVIDED TO YOU “AS IS,” AND YOUR USE IS AT YOUR OWN RISK. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. UNLESS AGREED OTHERWISE OR REQUIRED BY APPLICABLE LAW, ANY WARRANTIES PROVIDED IN RELATION TO PRODUCTS OR DR SERVICES ONLY EXTEND TO YOU ON THE UNDERSTANDING THAT YOU ARE A USER AND NOT A RESELLER OF THOSE PRODUCTS OR DR SERVICES.
7.2	WE HAVE PRICED PRODUCTS AND DR SERVICES AVAILABLE FOR PURCHASE FROM US UPON THE UNDERSTANDING, AND YOU HEREBY ACKNOWLEDGE THE UNDERSTANDING, THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND WHETHER OR NOT THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE: (a) OUR AGGREGATE LIABILITY WHETHER FOR BREACH OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY) SHALL IN NO CIRCUMSTANCES EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICABLE PRODUCTS AND/OR DR SERVICES WHICH GIVE RISE TO SUCH LIABILITY; AND (b) NEITHER WE NOR OUR SUPPLIERS OR LICENSORS SHALL BE RESPONSIBLE OR LIABLE TO YOU FOR ANY LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, OR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY DESCRIPTION (INCLUDING WITHOUT LIMITATION LOSS OR INTERRUPTION OF BUSINESS) IN CONNECTION WITH YOUR USE OF THIS SITE OR YOUR PURCHASE OR USE OF ANY PRODUCT OR DR SERVICE, HOWEVER CAUSED AND WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT, WARRANTY, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE WERE AWARE OR ADVISED OF THE POSSIBILITY OF DAMAGES, AND IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS.
7.3	NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED IN THESE TERMS LIMIT OUR LIABILITY TO YOU FOR ANY LIABILITY TO THE EXTENT SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF APPLICABLE LAW.
7.4	You agree to defend, indemnify and hold harmless us, our subsidiaries and affiliates, and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of or related to (a) any Products purchased by you in connection with your use of the DR Commerce Solution (including without limitation your use of any Third Party Service for which you purchase Service Use Rights from us), or (b) the violation of Section 8 of these Terms by you, your employees, consultants, agents, distributors, or customers.
7.5	To the fullest extent permitted by law and save where expressly set out in any License Terms or elsewhere, we shall have no liability to you in the event of the Products or DR Services infringing or being alleged to infringe the proprietary rights of any third party. In the event that the Products are or may be the subject of patent, copyright, database right, registered design, trade mark or other rights of any third party, you should refer to the relevant terms of the Product manufacturer and/or licensor/owner. We shall be obliged to transfer to you only such right or title as we have.
8.	EXPORT & CUSTOMS DUTIES
8.1	Each Product and DR Service and any related items (including software, technology and technical information) sold, exported, transferred, supplied or licensed by us may be subject to and governed by the laws of the United States and other countries, including but not limited to the US Export Administration Regulations (EAR) and US Foreign Assets Control Regulations (FACR). You are required to comply with all applicable laws relating to the export, re-export, transfer, use, or import of any Product or related items. Diversion contrary to applicable law is prohibited. Notwithstanding any other request or agreement to the contrary, neither you nor DR shall take or be required to take any action prohibited or penalized under US or applicable foreign law.
8.2	The tangible shipment of Products from one country for delivery in another country may be subject to customs duties, fees, taxes and/or other charges in the country of ultimate destination. Unless otherwise expressly stated by DR during the order process, (a) your payment for the order in question does not include any customs duties, fees, taxes and/or other charges that may be due and payable in the Product’s country of ultimate destination, and (b) the receiving party in the Product’s country of ultimate destination is responsible for making entry and properly declaring the merchandise to the appropriate customs authorities, paying any applicable customs duties/fees/taxes/charges, and/or satisfying any additional import-related requirements. You should contact the local customs authorities in the relevant jurisdiction for further information on the applicable customs requirements and procedures, duties, fees, taxes, and/or other charges that may be assessed against the Product.
8.3	When you are making a Purchase, you may be given an option to prepay or not prepay import tariffs and customs duties that may be levied by the destination country, and any disbursement fees, advancement fees or similar fees that may be imposed by the shipper, broker, the customs authority of the destination country or other party (collectively, "Import Costs"). We will make commercially reasonable efforts to estimate the amount of Import Costs (said estimate, the "Estimate"). However, the Estimate may be more or less than the final actual amount of Import Costs due and payable. We have no control over the Import Costs and cannot always predict with 100% accuracy what the final actual amounts may be. For greater certainty, you should contact your local customs office for further information on the import tariffs and customs duties that may be applicable to your Purchase.
	8.3.1	If you choose to prepay the Import Costs, you agree and acknowledge that (a) the actual Import Costs may be more or less than the Estimate and (b) you will NOT be asked to pay more money OR receive any refund in the case that the actual Import Costs differ from the Estimate.
	8.3.2	If you choose to prepay the Import Costs contained in the Estimate, you agree and acknowledge that the receiving party in the Product’s country of ultimate destination remains ultimately responsible for making entry and properly declaring the merchandise to the appropriate customs authorities, paying any applicable customs duties/fees/taxes/charges, and/or satisfying any additional import-related requirements. You should contact the local customs authorities in the relevant jurisdiction for further information on the applicable customs requirements and procedures, duties, fees, taxes, and/or other charges that may be assessed against the Product.
	8.3.3	If you choose to not prepay the Import Costs, you agree and acknowledge that (i) the actual Import Costs may be more or less than the Estimate; (ii) you (and not digital river, the broker, the shipper, the supplier or any other party) must bear the responsibility of paying all actual Import Costs; (iii) in the case that any entity other than you must pay some or all of the actual Import Costs on your behalf to effect customs clearance, you will reimburse (upon request) that entity in full for the actual Import Costs paid on your behalf; and (iv) failure by you to pay Import Costs in a timely manner may not only cause delays beyond our original delivery estimates, but also may put you at risk of potential liability for tariffs and other fees.
9.	NOTICES
9.1	Any notice or other communications in relation to these Terms may be given by sending the same by hand delivery, pre-paid post, fax or e-mail (a) with respect to notices and communications to you, to the address and contact information you provided in connection with your purchase of Products and/or DR Services; and (b) with respect to notices and communications to us, to the address listed at the beginning of these Terms or as otherwise specified in your order confirmation email or notification of Acceptance. These will also be the addresses for service of legal proceedings in the manner prescribed by law. Except as set out above in relation to cancellation of consumer orders, such notices or communications (where properly addressed) shall be considered received:
	9.1.1	In relation to hand delivery, on the date of delivery at the relevant address (or, if this is not a working date, the first working date thereafter);
	9.1.2	If posted, 5 working days after the date of posting;
	9.1.3	If by fax, on the date of the transmission as evidenced by a successful transmission contact report (or, if this is not a working date, the first working date thereafter).
	9.1.4	If sent by email, on the earliest of (i) the email being acknowledged by the recipient as received; (ii) receipt by the sender of an automated message indicating successful delivery or the email having been opened; or (iii) the expiry of 48 hours after transmission, provided that the sender has not received notification of unsuccessful transmission.
10.	AGREEMENT TO ARBITRATE
10.1	We will make every reasonable effort to resolve any disagreements that you have with us. In the event that we cannot resolve a disagreement to your satisfaction (or if we cannot informally resolve a concern we may have with you after attempting to do so informally), then you and we agree that except as expressly provided in Section 10.2 below, any claim, dispute, or controversy you may have against us arising out of, relating to, or connected in any way with these Terms, the DR Commerce Solution, or the purchase or attempt to purchase of any Products or DR Services through the DR Commerce Solution shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA, including the AAA's Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this agreement to arbitrate in this Section 10 (“Rules and Procedures”). The AAA's rules, and a form for initiating arbitration proceedings, are available on the AAA's site at http://www.adr.org. The language of any dispute resolution procedure or any proceedings will be English.
10.2	This Section 10 applies to all consumers to the fullest extent allowable by law. The disputes governed by these procedures in this Section 10 include without limitation (a) claims arising out of or relating to any aspect of the relationship between you and us; (b) claims that arose out of your use of the DR Commerce Solution; and (c) claims currently the subject of a purported class action litigation in which you are not a member of a certified class. However, the dispute resolution procedure specifically does not apply to (i) a claim relating to the enforcement or validity of your or our intellectual property rights; (ii) a claim relating to an allegation of theft, piracy, or unauthorized use; or (iii) claims for which class action litigation can be brought.
10.3	YOU AND WE BOTH AGREE THAT (A) EACH OF US CAN ONLY BRING CLAIMS AGAINST THE OTHER ON AN INDIVIDUAL BASIS AND THERE SHALL BE NO AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS OR REPRESENTATIVE BASIS; (B) ARBITRATION CAN DECIDE ONLY YOUR AND/OR OUR INDIVIDUAL CLAIMS, AND THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S); AND (C) THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.
10.4	If the value of the relief sought is $10,000 or less, either you or we may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and us (subject to the arbitrator's discretion to require an in-person hearing based on the circumstances). Attendance at an in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise. Any in-person arbitration shall be held at a location determined by the AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for you), or at such other location as may be mutually agreed upon by you and us.
10.5	You agree further that: (a) the arbitrator shall apply Minnesota law consistent with the Federal Arbitration Act and applicable statutes of limitations, including principles of equity, and shall honor claims of privilege recognized at law; (b) the arbitrator shall not be bound by rulings in prior arbitrations involving us, but is bound by rulings in prior arbitrations involving both you and us to the extent required by applicable law; (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.
10.6	With the exception of Section 10.3 above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by the AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, Section 10.3 above is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor we shall be entitled to arbitrate their dispute.
11.	GOVERNING LAW AND VENUE
	Any dispute arising out of or related to these Terms shall be governed by the internal laws of the State of Minnesota, without regard to or application of its choice of law rules or conflicts-of-laws principles, except that the Arbitration provision of these Terms shall be governed by the Federal Arbitration Act. In the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in Hennepin County, Minnesota, and both you and us agree to submit to the personal jurisdiction of the courts located within Hennepin County, Minnesota for the purpose of litigating all such claims or disputes.
12.	GENERAL
	These Terms sets forth the entire understanding between you and us with respect to your use of the DR Commerce Solution and your purchase of Products and DR Services from us, and supersedes any and all prior or contemporaneous communications, agreements, and representations, whether written or oral, related thereto. No amendment to these Terms will be valid unless made in writing and signed by you and us. These Terms prevail over any other terms or conditions contained in or referred to elsewhere or implied by trade, custom or course of dealing. Any purported terms or conditions to the contrary are hereby excluded to the fullest extent legally permitted. DR may engage the services of subcontractors or agents to assist DR in the performance of its obligations related to these Terms. You may not assign or transfer your rights under these Terms, and any purported assignment or transfer shall be void. No relaxation, forbearance, delay or indulgence by either you or us in enforcing any of these Terms or the granting of time by either party to the other shall prejudice or restrict such rights and powers. No waiver of any term or condition of these Terms shall be effective unless made in writing and signed by us. The waiver of any breach of any Term shall not be construed as a waiver of any subsequent breach or condition. If for any reason we determine or a court of competent jurisdiction finds that any provision or portion of these Terms to be illegal, unenforceable, or invalid under applicable law in a particular jurisdiction: (a) these Terms will not be affected in other jurisdictions to the extent that such determination or finding has no application; and (b) in the relevant jurisdiction, the remainder of these Terms (to the fullest extent permitted by law) will continue in full force and effect. Neither you nor us shall be in breach of these Terms in the event that party is unable to perform its obligations as a result of any reason or condition beyond its reasonable control.