Welcome Commerce Inc.
Terms & Conditions
 

PLEASE READ THESE TERMS AND CONDITIONS (“TERMS AND CONDITIONS”) FULLY AND CAREFULLY BEFORE USING THE SERVICES, FEATURES, CONTENT OR APPLICATIONS OFFERED BY WELCOME COMMERCE, INC. (“WELCOME”) (COLLECTIVELY, THE “WELCOME SERVICES”). THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR AND YOUR ENTITY’S (COLLECTIVELY, “CLIENT”) USE OF THE WELCOME SERVICES. EACH OF WELCOME AND CLIENT ARE SOMETIMES HEREINAFTER REFERRED TO INDIVIDUALLY AS A “PARTY” OR COLLECTIVELY AS THE “PARTIES.” 

CLIENT’S RIGHT TO USE THE WELCOME SERVICES IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THESE TERMS. BY CLICKING ON THE “ACCEPT” BUTTON AND USING THE WELCOME SERVICES, CLIENT AGREES TO BE BOUND BY THESE TERMS. IF YOU ARE AN INDIVIDUAL ACCESSING THE WELCOME SERVICES ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THESE TERMS ON ITS BEHALF.  IF YOU DO NOT AGREE WITH ANY PROVISION OF THE WELCOME TERMS, OR YOU DO NOT HAVE AUTHORITY TO BIND YOUR EMPLOYER OR APPLICABLE ENTITY, YOU MUST CLICK THE “CANCEL” BUTTON AND MAY NOT ACCESS OR USE THE WELCOME SERVICES IN ANY MANNER FOR ANY PURPOSE.
 

  1. Web Order Form.

    The online order form(s) Client completes from time to time, and/or such other order form(s) that the parties may execute (“Order”) shall set forth the Welcome Services and shall be deemed to incorporate these Terms and Conditions by reference. In the event of any conflict between these Terms and Conditions and the terms and conditions set forth in an Order, the terms and conditions set forth in the Order shall be controlling. In the event of any conflict between Orders, the terms and conditions set forth in most recent Order shall be controlling. Each applicable Order, together with these Terms and Conditions, shall constitute the agreement between Welcome and Client. 
     
  2. Term. 
     
    • (a) Term. These Terms and Conditions shall become effective when Client completes an Order (via signature and delivery, or click of the "Accept" button) and, unless terminated earlier in accordance herewith, shall continue for the period specified in the initial and subsequent Orders (each, a “Term”). These Terms and Conditions shall automatically renew for a period equal to the initial Term of an Order unless either Party gives the other written notice of its intention not to renew no later than sixty (60) days prior to the end of the then-current Term.
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    • (b) Termination for Breach. In addition to any other remedies it may have, if either Party breaches any of the terms or conditions of these Terms and Conditions and fails to cure such breach within thirty (30) days after written notice from the non-breaching Party, the non-breaching Party may terminate these Terms and Conditions or a specific Order upon ten (10) days’ prior written notice. Upon termination of these Terms and Conditions or an Order due solely to Client’s failure to pay Fees (defined in Section 4(a) below), Client will pay for the Welcome Services that have been rendered through the termination date plus all other charges that would have been due under the remaining Term of each affected Order. Upon termination of these Terms and Conditions or an Order due solely to a breach by Welcome, Welcome shall refund a pro rata portion of any Fees paid for Welcome Services not yet rendered as of the date of termination, not to exceed six (6) months of Fees per Order. In any instance of termination, all Fees theretofore paid to Welcome are non-refundable, and Client shall pay any remaining outstanding Fees owed to Welcome within thirty (30) days of any termination of the Terms and Conditions or any Order, as applicable.
       
  3. Welcome Services.

    A description of the Welcome Services to be provided shall be set forth in an Order and related pages. 
     
  4. Fees.

    • (a) Fees. Except as otherwise set forth herein, all fees payable to Welcome by Client shall be set forth in Orders (the “Fees”). In addition to the Fees, Client will be solely responsible for any application programming interface (“API”) or other fees imposed by Client's live chat provider or other vendors utilized by Client in relation to the Welcome services. Client shall timely pay Welcome the Fees as set forth in each Order. Client shall submit such payments as required in accordance with the payment instructions (e.g. payment address) provided in each invoice, or if no invoice is required pursuant to an applicable Order, then payment shall be made to the address indicated on the applicable Order. If Client is ordering online, Client will provide and maintain valid credit card information and hereby authorizes Welcome to charge such credit card for all amounts set forth in the Order as they become due, as set forth therein and herein. We may also invoice Client for amount due. All Fees are exclusive of applicable sales, excise, or use taxes. Client is responsible for paying such taxes, whether such taxes are billed by Welcome or assessed directly by the applicable taxing authority. Client has the right to withhold any applicable taxes from any Fees due under an Order if required by any government authority, provided, however, that Client shall gross the payment up in the amount of any such withholding above any Fees due so that Welcome receives payment in the amount provided in any Order. Payments of invoiced amounts are due net thirty (30) days from receipt of invoice unless agreed otherwise by the Parties in the applicable Order. Client shall notify Welcome of any invoice dispute within thirty (30) days of receipt of invoice, at which time the Parties will engage in good faith efforts to resolve the dispute.
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    • (b) Late Payments. Client’s failure to timely pay the Fees shall constitute a material breach of these Terms and Conditions. If payment is not timely made then Welcome may charge Client a late fee on the unpaid balance at the lesser of one percent (1%) per month or the maximum lawful rate, compounded monthly.
       
  5. Welcome API; Client Chat Solution; Traffic Data & Performance Information. 
     
    • (a) Definitions. As used herein: (i) “Welcome API” means the Welcome application programming interface, scripts and other tools that allow the Client Chat Solution to interact with the Welcome Services; (ii) “Client Chat Solution” means the live chat solution licensed or otherwise utilized by Client or a particular Retailer, including all data, application programming interfaces and cookie or similar information created, received or processed by such solution; and “Traffic Data” means all data and information created, received, processed or provided by Welcome in performing the Welcome Services, or that result from performance of the Welcome Services for Client, including without limitation certain messaging and chat data, pre/post chat survey data (to the extent it does not contain PII or CPNI, as such terms are defined below), and Internet protocol address information for geolocation functionality and for maintenance of the Welcome Services. Traffic Data does not contain personally identifiable customer information (“PII”) or customer proprietary network information (“CPNI”). 
       
    • (b) Welcome Grant. Welcome hereby grants Client a nonexclusive license to access and use the Welcome API during the Term solely in connection with its use of the Welcome Services.
       
    • (c) Client Grant. Client hereby grants to Welcome a non-exclusive license to access and use Client Chat Solution in connection with the provision of the Welcome Services together with all access keys and codes required for such access and use.
       
    • (d) Traffic Data. Welcome shall own all rights in and to Traffic Data. Welcome hereby grants to Client a limited, non-exclusive, revocable, non-transferable, non-sublicensable license during the applicable Term to access and use the Traffic Data solely for its internal business purposes as they relate to the Welcome Services. Client shall maintain on its web sites industry standard privacy policies that comply with all applicable legal requirements. Client can review the most current version of the Welcome Privacy Policy at any time on the Welcome website at http://welcomecommerce.com/privacy
       
    • (e) Collection of Information. Welcome may collect certain PII or CPNI in the course of performing the Welcome Services. Client acknowledges and agrees that such data is owned (solely or jointly) by, or licensed to Welcome, or owned by applicable Retailers, without rights of accounting. Client further agrees that it has no right whatsoever to PII and/or CPNI resulting from the Welcome Services. 
       
    • (f) US-EU Privacy Shield Agreement; Successor Agreements. The Parties acknowledge and agree that any PII originating in the European Union is subject to the US-EU Privacy Shield Agreement and/or any similar such successor agreements. The Parties covenant and agree to assist one another in meeting their obligations under the US-EU Privacy Shield Agreement to the extent reasonably required by law.
       
  6. Non-Disclosure. 
     
    • (a) Each Party agrees to keep strictly confidential and, except as expressly provided for in these Terms and Conditions, not use, for its own benefit or the benefit of any other person or entity, any non-public business or technical information (hereinafter “Confidential Information”) of the other Party exchanged pursuant to these Terms and Conditions. The Party to whom Confidential Information has been communicated shall maintain such information as confidential and shall not disclose or permit the same to be disclosed to any third party, except to attorneys, accountants, or similar advisers for purposes of advising such Party and under a duty to maintain the confidentiality of such information. Each Party agrees to apply to the other’s Confidential Information no lesser security measures and degree of care than those which the receiving Party applies to its own confidential or proprietary information of like importance. Confidential Information shall not include information that is (i) now or hereafter generally known to the public without breach of these Terms and Conditions, (ii) obtained from another source not known to have an obligation of confidentiality to the disclosing Party, (iii) independently developed by the receiving Party without reference to any Confidential Information of the disclosing Party, (iv) required by law to be disclosed in connection with a judicial, administrative or other governmental proceeding, provided that the receiving Party shall give the disclosing Party prompt notice of any such requested disclosure and shall comply with any valid protective order that is obtained by such other Party. In addition, the provisions of these Terms and Conditions shall be deemed confidential information of the other Party. 
       
    • (b) The restrictions contained in this Section 6 will survive for the maximum period of time possible pursuant to law following the expiration or earlier termination of the Agreement, provided that Confidential Information constituting a trade secret under applicable law shall continue to be protected in perpetuity. Client acknowledges that the Welcome Services, any Welcome APIs and other Welcome software or technology used in connection with the Welcome Services are proprietary trade secrets of Welcome and/or its licensors.
       
    • (c) Upon the expiration or termination of the Agreement, each Party shall promptly return or destroy (at the option of the disclosing Party) all confidential or proprietary information in tangible form received from the other Party hereunder, all copies thereof, and all summaries, reports and analyses prepared by the receiving Party to the extent they reflect or contain any such information. In the event of the destruction of such information, the receiving Party shall certify to the disclosing Party in writing within five (5) business days following such destruction that such destruction has been completed.
       
    • (d) Each Party agrees that money damages might not be sufficient remedy for any breach of this Section 6 by it or its employees or advisors and that in addition to all other remedies, the other Party shall be entitled to seek injunctive or other equitable relief to enforce this Section 6 without having to post a bond or other security.
       
  7. Intellectual Property.

    Welcome gives Client permission during the Term to use the Welcome Services as set forth in an applicable Order. Except for this limited right, no other right or license is granted to Client hereunder, no other use is permitted and Welcome (and its licensors) shall retain all right, title and interest (including all intellectual property and proprietary rights) in and to the Welcome Services and all associated software and technology. Additionally, Client may not (a) use any of Welcome’s Confidential Information to create any service, software, documentation or data that is similar to any aspect of the Welcome Services, provided that the foregoing does not prohibit independent development of similar functionality by Client or third parties, (b) disassemble, decompile, or reverse engineer the Welcome Services or other Welcome technology, (c) encumber, sublicense, transfer, rent, lease, time-share or use the Welcome Services in any service bureau arrangement or otherwise for the benefit of any third party except as contemplated in an Order, (d) copy, create derivative works of, translate, localize, port or otherwise modify any aspect of the Welcome Services, (e) export the Welcome Services in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction or (f) permit any third party to engage in any of the foregoing proscribed acts.
     
  8. Trademarks.
     
    • (a) Trademark License. Subject to the terms and conditions of these Terms and Conditions, Client grants to Welcome a limited, non-exclusive, non-transferable, non-sublicenseable, worldwide license to use and display trademark Client’s name, logo and trademarks that are provided or made available to Welcome (“Trademarks”) in connection with the provision of the Welcome Services and in accordance with Client’s standard trademark guidelines, as provided to Welcome. The license granted to Welcome shall include the display of Client’s trademarks on Welcome’s dashboards, widgets and web sites. 
       
    • (b) No Acquisition of Rights. Welcome agrees that it will not: (a) acquire any rights with respect to the Client’s Trademark and that all use of Trademark and all associated goodwill shall inure to the benefit of Client; (b) register or attempt to register Client’s Trademark or any confusingly similar mark anywhere in the world; and/or (c) use the Trademark in any manner that tarnishes the reputation of or otherwise unfavorable reflects upon Client.
       
    • (c) Trademark Indemnification. Client shall indemnify, defend and hold harmless Welcome from any claims, demands, suits, actions, damages, fines, costs and expense (including reasonable attorney fees) incurred by Welcome arising out of or relating to any actual or alleged infringement of the trademarks or service marks of a third party by the Trademarks licensed by Welcome under these Terms and Conditions.
       
  9. Representations & Warranties; Disclaimers; Indemnification; Limitation of Liability.
     
    • (a) Mutual Representations. Each Party represents and warrants and covenants to the other Party that (i) it has full corporate power and authority to enter into these Terms and Conditions and to perform its obligations hereunder; and (ii) in performing its obligations under these Terms and Conditions, it will comply with all applicable laws and regulations (including without limitation all applicable privacy laws and regulations) and its privacy policy. 
       
    • (b) Welcome Representations. Welcome represents and warrants to Client that: (i) to its knowledge, the Welcome Services will not violate the U.S. patent, copyright, trademark, trade secret or other intellectual property rights of any third party; and (ii) the Welcome Services will perform substantially in accordance with their intended use and with Welcome's published specifications.
       
    • (c) Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9(b) ABOVE, WELCOME DOES NOT WARRANT THAT THE WELCOME SERVICES WILL MEET CLIENT’S REQUIREMENTS, THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE WELCOME SERVICES SHALL RESULT IN ANY SALES OR PROFIT FOR CLIENT. TO THE FULLEST EXTENT PERMITTED BY LAW, WELCOME HEREBY DISCLAIMS (FOR ITSELF AND ITS AFFILIATES) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE WELCOME SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. 
       
    • (d) Indemnification. Each Party agrees to defend, indemnify and hold the other Party and its affiliates and their respective trustees, directors, officers, employees, agents, contractors and professional advisors harmless from and against all losses, costs, damages, expenses and liabilities, including, but not limited to, reasonable attorney fees and legal costs, suffered or incurred by such other Party in connection with third party claims (collectively “Claims”) arising out of any material breach or non-performance of any provision of these Terms and Conditions or personal injury or damage to property, to the extent caused by such indemnifying Party or its employees, contractors, agents or professional advisors. With respect to the non-infringement representation set forth in Section 9(b)(i), Welcome will have no obligation to indemnify Client for any Claim that (i) would have been avoided but for unauthorized modifications of the Welcome Services or any portion thereof by Client or a third party on Client’s behalf; (ii) would have been avoided but for the combination or use of the Welcome Services or any portion thereof, with other content, products, processes or materials not supplied by Welcome; (iii) arises from Client’s breach of these Terms and Conditions, and such Claim would have been avoided but for such breach, or (iv) arises from Client’s failure to use the most recent version of the Welcome Services as supplied by Welcome hereunder. The indemnified Party shall promptly notify the indemnifying Party of any Claims, and the indemnifying Party shall have the right to defend such Claim with counsel of its choosing. At the request of an indemnifying Party, the indemnified Party shall reasonably cooperate in the defense and settlement of such Claim at the indemnifying Party’s expense and the indemnified Party shall have the right to participate with its own counsel at its own expense.
       
    • (e) Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT), REGARDLESS OF THE FORM OF THE ACTION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY, IN NO EVENT SHALL WELCOME BE LIABLE CONCERNING THESE MASTER TERMS OR ANY ORDER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS ACTUALLY PAID TO IT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM FOR SUCH DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 
       
    • (f) Non-Responsibility for Use. Notwithstanding anything to the contrary contained herein or elsewhere, Welcome shall not be liable for any content resulting from use of the Welcome Services, and Welcome assumes no responsibility whatsoever for monitoring such content.
       
  10. General.
     
    • (a) Governing Law. These Terms and Conditions will be governed by and construed in accordance with the laws of the State of New York, USA, excluding its conflicts of laws rules. Each Party hereby submits to exclusive personal jurisdiction in the federal and state courts located in New York County, New York in connection with any disputes arising hereunder.
       
    • (b) Notices. Any notice or other communication under these Terms and Conditions shall be in writing and shall be considered given when received and sent, mailed by registered mail, return receipt requested, or overnight air courier, to the addresses set forth in the Order(s) (or at such other address as a Party may specify by notice to the other). Electronic mail shall provide sufficient notice for routine operational matters. Welcome may also notify Client through a pop-up or other conspicuous mechanism within the Welcome Service interface.
       
    • (c) Survival. Sections 4, 5, 6, 7, 8, 9 and 10 shall survive the expiration or earlier termination of these Terms and Conditions in accordance with their respective terms.
       
    • (d) Entire Agreement; Amendment. These Terms and Conditions contain a complete statement of all the arrangements between the Parties with respect to its subject matter, supersedes all previous agreements between them concerning that subject matter. Welcome shall have the right to change or add to the terms of this Agreement at any time, and to change, delete, discontinue, or impose conditions on use of the Welcome Service by posting such changes within a Customer interface, on our website or any other website we maintain. Welcome may provide Customer with notice of any such changes through the Customer interface, via email, or through other means. Customer’s use of the Welcome Service after Welcome publishes any such changes and provides such notice constitutes Customer’s acceptance of the terms of the modified Agreement.
       
    • (e) Independent Contractors. Each Party is an independent contractor and nothing in these Terms and Conditions or any Order shall be construed to create a partnership, joint venture or agency relationship between the Parties.
       
    • (f) Force Majeure. Neither Party shall be responsible for any failure or delay in performance of its obligations under these Terms and Conditions because of circumstances beyond its reasonable control, including, but not limited to, acts of God, fires, floods, wars, civil disturbances, sabotage, accidents, labor disputes (whether or not the employees’ demands are reasonable and within the Party’s power to satisfy) governmental actions, or unavailability of phone or Internet service.
       
    • (g) Waiver. The failure of a Party to insist upon strict adherence to any term of these Terms and Conditions on any occasion shall not be considered a waiver or deprive that Party of the right thereafter to insist upon strict adherence to that term or any other term of these Terms and Conditions. Any waiver must be in writing and duly executed by the Party granting the waiver.
       
    • (h) Assignment. Neither Party may assign its rights or delegate its duties under these Terms and Conditions without the prior written consent of the other Party, and any such assignment absent such consent shall be deemed null and void. Notwithstanding the foregoing, Welcome may assign these Terms and Conditions and Orders without Client’s consent in connection with any merger, acquisition, reorganization or sale of all or substantially all of its assets.
       
    • (i) Severability. If any provision of these Terms and Conditions is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms and Conditions will otherwise remain in full force and effect and enforceable.

 

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