a. Onboarding Services. Use of the Platform Services requires certain prerequisites including the Onboarding Services. Subject to Merchant’s payment of the Onboarding Fee, Platform will provide Merchant with the Onboarding Services.
b. Platform Services. Subject to Merchant’s compliance with this Agreement, Platform grants Merchant:
C. Other Services. Subject to Merchant’s compliance with this Agreement, Merchant may access and use certain other Services as set forth on an executed Order Form (including LMN Services and/or Reseller Services) during the applicable Order Form Term, within the Territory, solely in connection with this Agreement.
d. Support. Platform will provide support for the Services as set forth on Schedule B.
e. Subcontractors. Platform may subcontract any of the Services, provided that it will remain fully responsible for the performance of each subcontractor. For the avoidance of doubt, Third-Party Services are not subcontractors under this Agreement.
f. Restrictions. Except as expressly permitted by this Agreement, Merchant will not, and will not permit any third party to, use the Services in any manner beyond the scope of the rights expressly granted in this Agreement. Specifically, Merchant will not at any time, directly or indirectly, and will not permit any third party to:
g. Modification, Suspension, or Termination. Platform may (i) modify, deprecate, or update the Platform Services, in whole or in part, at any time during the Term; and (ii) without liability to Merchant, immediately suspend, terminate or limit Merchant’s access to the Platform Services at any time if Platform reasonably suspects that the Services are being used in violation of this Agreement.
h. Payment Processor. By using the Services, Merchant agrees to the Processing Terms and Conditions of Platform’s primary Payment Processor, which may be amended at any time on notice.
i. Third-Party Services. The Platform Services may allow Merchants and Customers to interact with compatible third-party services, including but not limited to payment processors (collectively "Third-Party Services").Platform does not provide or take responsibility for these Third-Party Services, including any compatibility issues or errors they may cause. Merchant is responsible for obtaining the necessary licenses and consents to use these Third-Party Services with the Platform Services.
a. Merchant License. Merchant is the sole owner of the Merchant Platform, the Products, Merchant’s name and logo, and any Intellectual Property Rights therein. Merchant hereby grants to Platform (i) a limited, non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 11(c)) right to use the Merchant Platform solely for the purpose of providing the Platform Services, Onboarding Services, and any other Services selected via a signed Order Form; and (ii) a limited, non-exclusive, royalty-free license to use and display Merchant’s name, trademarks, logos, and product images for Platform’s marketing and promotional efforts, including naming Merchant as a merchant customer of Platform.
b. Feedback. Merchant grants Platform a perpetual, royalty-free license to use any feedback provided by Merchant or its representatives for Platform's business purposes, including to improve the Platform Services.
a. Fees and Payment Terms. Merchant will pay Platform the non-refundable fees as set forth on the relevant Order Form. Platform may charge interest on late payments at a rate of 1.5% per month or the highest legal rate, whichever is lower.
b. Transaction-Related Fees.
d. Taxes. Merchant is responsible for all sales, use, ad valorem or other taxes on any amounts due to Platform hereunder, other than any taxes imposed on Platform’s income.
a. Non-Disclosure. The parties will protect one another’s confidential information and not use or disclose it except as necessary to perform the Services. Confidential information includes all non-public information provided by a party under this Agreement, including financial data, business plans, and employee information. Upon termination of this Agreement, a party may request that the other party return or destroy (at the other party’s option) the requesting party’s confidential materials.
b. Exceptions. The confidentiality obligation does not apply to information that is public, previously known to the receiving party, disclosed to the receiving party by a third without a breach of confidence, independently developed by a party without reference to the confidential information, or legally required to be disclosed.
a. Mutual. Each party represents and warrants to the other party that it has the necessary authority to enter into this Agreement and carry out its obligations hereunder.
b. By Merchant. Merchant represents and warrants that (i) it has obtained and will continue to have all necessary rights, authority, consents, and licenses for the access to and use of the Merchant Platform; (ii) it will comply with all applicable laws in its performance hereunder (including any data protection or privacy laws); and (iii) Platform’s use of the Merchant Platform in accordance with this Agreement will not violate any applicable laws or cause a breach of any agreement or obligation of Merchant.
a. Merchant Indemnification. Merchant will indemnify, defend, and hold harmless Platform against any third party claim, suit or proceeding (“Claims”) arising from (i) the Merchant Platform, including any Claim that the Merchant Platform infringes or otherwise violates any third party’s Intellectual Property Rights or other rights; (ii) Merchant’s violation of applicable law in its performance hereunder; (iii) any of Merchant’s products or services; (iv) Merchant’s breach of this Agreement; and (v) chargebacks, including but not limited to chargeback fees, penalties, and legal costs related thereto.
b. Platform Indemnification. Platform will indemnify, defend, and hold harmless Merchant against any Claims arising from any defect or omission in the Platform Services including any Claim that the Platform Services infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights.
c. Indemnification Procedures. The indemnified party will promptly (and in any event no later than ninety (90) days after becoming aware of a potential Claim) notify the indemnifying party of the Claim and will reasonably cooperate in the defense and/or settlement thereof. The indemnifying party will have the right to conduct the defense of any Claim for which the indemnifying party is responsible hereunder (provided that the indemnifying party may not settle any Claim without the indemnified party’s prior written approval). The indemnified party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel.
d. Insurance. During the Term, each party will maintain insurance coverage that meets industry standards for their services, which at a minimum shall include a commercial general liability policy and a cyber insurance policy, each with limits of at least $1,000,000 per occurrence and $2,000,000 in the aggregate.
a. General. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ALL SERVICES AND THE SIKA IP ARE PROVIDED ON AN “AS IS” BASIS, AND SIKA MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE SAME. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SIKA DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. SIKA FURTHER DISCLAIMS ANY WARRANTY THAT USE OF THE PLATFORM SERVICES OR PROFESSIONAL SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED. SIKA MAKES NO WARRANTIES WITH RESPECT TO ITS ABILITY TO OBTAIN SIGIS OR SIMILAR CERTIFICATION FOR MERCHANT’S PRODUCTS OR SERVICES.
b. LMN Services Disclaimer. SIKA AND THE TELEMEDICINE PROVIDER ARE INDEPENDENT CONTRACTORS, AND THE LMN SERVICES DO NOT CREATE ANY EMPLOYMENT, PARTNERSHIP, OR JOINT VENTURE. SIKA DOES NOT CONTROL THE PROFESSIONAL JUDGMENT OF TELEMEDICINE PROVIDER OR ITS HEALTHCARE PROFESSIONALS. SIKA IS NOT LIABLE FOR ANY ACTIONS OR OMISSIONS OF TELEMEDICINE PROVIDER, ITS AGENTS, OR EMPLOYEES.
a. Excluded Damages. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER, EVEN IF THE DAMAGE WAS FORESEEABLE AND WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SIKA SHALL NOT BE LIABLE FOR ANY CHARGEBACKS OR ASSOCIATED FEES, AND MERCHANT SHALL REIMBURSE SIKA FOR THE SAME AND ANY RELATED COSTS INCURRED.
b. Maximum Liability. EACH PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO GOLDNOIR PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
c. Basis of the Bargain. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN THEM, AND THEY WILL APPLY EVEN IF THESE REMEDIES ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
a. Term. This Agreement begins on the Effective Date and continues, unless terminated earlier as permitted herein, as long as there is an Order Form Term in effect (the “Term”). Each Order Form is effective for the Order Form Initial Term and all subsequent Order Form Renewal Terms, if any (collectively, the “Order Form Term”).
b. Termination for Cause. Either party may terminate this Agreement if the other party materially breaches this Agreement and the breach remains uncured for thirty (30) days after written notice of the breach. Merchant’s failure to pay an invoice in full when it is due is a material breach of this Agreement.
c. Effect of Termination. Upon expiration or termination of this Agreement, the rights granted pursuant toSection 2 will terminate. No expiration or termination will affect Merchant’s obligation to pay any amounts legitimately owed to Platform prior to the effective date of such termination.
a. Survival. Provisions on confidentiality, intellectual property, disclaimers, indemnification, limitation of liability, notices, dispute resolution, and any other provisions that, by their nature, are intended to survive the Term, shall survive termination.
b. Relationship. The relationship between the parties is that of independent contractors and not a partnership, joint venture or agency. Neither party may make commitments on behalf of the other party with such party’s prior written consent.
c. Assignment. Neither party may assign this Agreement without the other party’s prior written consent, except that a party may assign the Agreement to a third party that succeeds to all or substantially all of its business and assets, whether by sale, merger, operation of law or otherwise.
d. Notices. All notices under this Agreement shall be in writing and shall be delivered by registered or certified mail, return receipt requested, postage prepaid or by email (with confirmation of transmission) to the address(es) specified on the cover page.
e. Governing Law and Dispute Resolution. This Agreement is governed by the laws of New York. Disputes under this Agreement will be resolved first through good faith negotiation, then mediation, and if necessary, binding arbitration in New York, NY under the rules of the American Arbitration Association. The parties will equally split the costs and expenses of the arbitration, and each will separately pay their own counsel fees and expenses.
f. Severability. If any provision of this Agreement is found to be invalid, the remaining provisions will continue in effect.
g. No Waiver. A party’s failure to enforce a provision of this Agreement will not be a waiver of such provision.
h. Equitable Relief. Each party agrees that a breach or threatened breach of its obligations under Section 5, or for Merchant, Section 2, would cause irreparable harm, and that the other party may seek immediate equitable relief, such as an injunction or specific performance, from any court. These remedies are in addition to any other legal or equitable remedies.
i. Force Majeure. Neither party is liable for delays or failures in performance (excluding payment obligations) due to causes beyond their control, such as labor disputes, shortages, attacks, telecommunications failures, pandemics, government actions, legal changes, war, terrorism, or natural disasters.
j. No Third-Party Beneficiaries. This Agreement does not grant any rights or benefits to anyone other than the Parties and their successors or assigns.
k. Counterparts. This Agreement may be executed in counterparts, each of which is an original, but together they constitute the same agreement.
l. Entire Agreement. This Agreement, including all schedules and signed Order Forms, constitutes the entire agreement between the parties and supersedes all prior agreements. Amendments must be in writing and signed by both parties.
a. “Aggregate Data” means any data that is derived or aggregated in deidentified form from Merchant’s and/or its Customers’ Use of the Platform Services, including, without limitation, any usage data or trends with respect to the Platform Services.
b. “Ancillary Fees” means fees and charges incurred by Platform on behalf of Merchant in connection with the processing of transactions, including but not limited to fees related to chargebacks, disputes, refunds, declined or failed transactions, and payouts. Ancillary Fees may include additional markups or service charges imposed by Platform.
c. “Go-Live Date” means the date on which Merchant receives access to the Platform Services.
d. “Customer” means an end-user who accesses and uses the Platform Services to purchase Products on the Merchant Platform.
e. “Documentation” means any operator and user manuals, API, SDK or other software documentation, training materials, specifications, and other similar materials as provided by Platform to Merchant relating to the Platform Services, as may be updated from time to time.
f. “HSA/FSA Eligible” means any Merchant products or services certified by the Special Interest Group for IIAS Standards (“SIGIS”) as (i) eligible for payment through a Health Spending Account or Flex Spending Account, each as defined by IRS Publication 969 (2021), as amended from time to time (collectively, “HSA/FSA”), or (ii) eligible for payment through an HSA/FSA account if accompanied by an LMN. eligible for payment through an HSA/FSA account if accompanied by an LMN.
g. “Intellectual Property” or “IP” means any and all trade secrets, patents, trademarks, domain names, original works of authorship and related copyrights, and any other intangible property in which any person or entity holds proprietary rights, title, interests, or protections, however arising, pursuant to the laws of any jurisdiction throughout the world, and any derivatives or modifications of any kind of any of the foregoing; in each case whether or not any of the foregoing is legally protectable.
h. “Intellectual Property Rights” means any and all proprietary rights of any kind, throughout the world, in Intellectual Property, including without limitation any and all patents, copyrights, trademarks, social media handles and domains, trade secrets, and rights in or to data or databases.
i. “LMN” means a ‘Letter of Medical Necessity’ provided by a licensed healthcare practitioner, authorizing that an expense is being incurred for a medical purpose (as opposed to general health or cosmetic purposes), to enable that expense to be incurred on a tax-free basis using HSA/FSA funds.
j. “LMN Services” means that Platform, with the assistance of its Telemedicine Provider, will provide Customers with access to an online portal or such other means as determined by Platform to coordinate an asynchronous consultation with Telemedicine Provider for the purpose of assessing the necessity of, and if appropriate, the provision of, an LMN related to Customer’s prospective purchase on the Merchant Platform.
k. “Merchant Platform” means Merchant’s product listings, web properties which host such listings, and related data which is transmitted or otherwise provided by or on behalf of Merchant in the course of Merchant’s use of the Platform Services, but excluding, data provided by Customers, Aggregate Data and any other content or materials owned or controlled by Platform and made available through or in connection with the Services.
l. “Onboarding Fee” means a one-time fee payable by Merchant to Platform for the Onboarding Services.
m. “Onboarding Services” means (1) the installation of certain software within Merchant’s purchasing flow(s), (2) the certification of Merchant’s products as HSA/FSA Eligible or ineligible and the creation and storage of certain identifiers memorializing the same, and (3) the development of integration(s) with Payment Processors.
n. “Payment Processor” means any third-party tools or services engaged by Platform to effect the processing of Customer payments through the Platform Services, as updated from time to time.
o. “Platform Services” means Platform’s provision to Merchant of Platform’s proprietary HSA/FSA payment platform, including its front and back-end software, database models and datastores, human support, and compliance consulting, that enables Merchants to accept Customers' FSA and HSA funds as a payment method for Products.
p. “Products” means certain HSA/FSA Eligible products and related services of the Merchant.
q. “Professional Services” means the implementation and/or other professional services, if any, to be provided by Platform to Merchant, including without limitation installation services, de-installation services, HAS/FSA Eligibility determination and support services, support services, and other administrative services.
r. “Reseller Fee” means an amount equal to the percent set forth on the relevant Order Form of the gross sales price of all Products sold by Platform via the Reseller Services. Merchant shall provide Platform with a statement of account for each Reseller Fee payment.
s. “Reseller Products” means the Products that are subject to Platform’s Reseller Services, as agreed in writing between the parties and as may be updated from time to time.
t. “Reseller Services” means Platform providing Customers with the ability to purchase the Products directly from Platform’s online marketplace located at https://www.sikahealth.com/shop (or any successor URL).
u. “Platform IP” means the Platform Services and Professional Services, including without limitation algorithms, interfaces, technology, databases, tools, know-how, processes, methods and other Intellectual Property used to provide or deliver the Onboarding Services, Platform Services or any Professional Services, Documentation and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
v. “Telemedicine Provider” means the third-party healthcare practitioner group(s) engaged by Platform to provide consultations to support the generation of LMNs for Customers, as appropriate.
w. “Territory” means the United States.
x. “Total Product Fee” means the gross price actually paid for the Products purchased by Customer in a transaction, including without limitation sales tax, Product list price, listing fees, service fees, and other amounts charged by Merchant in connection with the purchase of Products on the Merchant Platform.
y. “Transaction Fees” means the amount equal to (1) the Transaction Fee as a percent of the Total Product Fee, as set forth on the relevant Order Form; plus (2) Ancillary Fees, if any; plus (3) the LMN Consultation Fee(s), if the relevant transaction included LMN Services.
Availability. Platform will use commercially reasonable efforts to make the Platform Services available during the Term twenty-four (24) hours a day, except for excused downtime, which, for purposes of this Agreement, means (i) planned downtime of the Platform Services; (ii) emergency downtime of the Platform Services; and (iii) any unavailability of the Platform Services caused by circumstances beyond Platform’s reasonable control.
Support. Platform will provide reasonable technical support to Merchant by email or phone in connection with the Services on weekdays (not including U.S. federal holidays) during the hours of 9:00 a.m. to 5:00 p.m. ET, subject to the following conditions: (i) prior to initiating any support request, Merchant (and its own personnel responsible for information technology support) will have first attempted to resolve the issue generating the need for such support; and (ii) Merchant will reasonably cooperate with Platform support staff as needed to resolve the issue.
If Platform has agreed to provide the Reseller Services to Merchant pursuant to an Order Form, then the following additional terms and conditions apply to Platform’s provision of the Reseller Services:
Role. Platform will provide the Reseller Services on a non-exclusive basis, within the Territory, during the relevant Order Form Term.
Nonexclusivity. Merchant may, in its sole discretion, market, distribute, and sell the Reseller Products, directly or indirectly, to any individual or entity in the Territory, including without limitation other distributors, resellers, and directly to end users. Platform may, in its sole discretion, offer its reseller services to other merchants, including for the resale of products similar to or that compete with the Reseller Products.
Duties.
a. Of Supplier. During the relevant Order Form Term, Merchant shall
b. Of Platform. During the relevant Order Form Term, Platform shall
For the avoidance of doubt, title of any Reseller Product purchased through the Reseller Services shall pass directly from Merchant to the purchaser of such Reseller Product, and never to Platform.
Additional Merchant License. Merchant is the sole owner of the Reseller Products, and any Intellectual Property Rights therein. Merchant hereby grants to Platform a limited, non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 11(c) of the Payment Processing Terms & Conditions right to use Merchant’s and the Reseller Products’ names, logos, and any other related intellectual property owned by Merchant, solely in connection with the promotion, advertising, and resale of the Reseller Products in the Territory in accordance with the terms of this Agreement.
Additional Representations and Warranties.
a. By Merchant. Merchant hereby represents and warrants to Platform that (i) the Reseller Products and the Merchant Marketing Support comply with applicable law, including any laws, regulations, or orders affecting the manufacture, marketing, or sale of the Reseller Products in the Territory; and (ii) it has and maintains all licenses, permits, notifications, registrations, authorizations, or approvals from the applicable regulatory authority or authorities that are required to lawfully sell the Reseller Products in the Territory.
b. By Platform. Platform hereby represents and warrants to Merchant that it has and maintains all licenses, permits, notifications, registrations, authorizations, or approvals from the applicable regulatory authority or authorities that are required to lawfully resell the Reseller Products in the Territory.
Additional Indemnification
a. Merchant Indemnification. In addition to its obligations under Section 7(a) of the Payment Processing Terms & Conditions, Merchant will indemnify, defend, and hold harmless Platform against any Claims arising from (i) the Reseller Products or the Merchant Marketing Support, including, without limitation, (A) any Claim that the Products or the Merchant Marketing Support infringes, misappropriates or otherwise violates any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claims related to bodily injury, death, or damage or real or personal property; or (ii) Merchant’s gross negligence or willful misconduct.
b. Platform Indemnification. In addition to its obligations under Section 7(b) of the Payment Processing Terms & Conditions, Platform will indemnify, defend, and hold harmless Merchant against any Claims arising from Platform’s gross negligence or willful misconduct.