Mercado Labs Software as a Service Agreement

Last Updated: January 24, 2022

This Software as a Service Agreement (the “Agreement”) is effective as of the Effective Date on the summary page, and is by and between Customer and Global Trade Specialists, Inc. doing business as Mercado Labs, a Delaware corporation (“Mercado”). This Agreement which incorporates the Subscription Plan, governs your use of Mercado’s services. Customer and Mercado may be referred to individually as a “Party” and collectively as the “Parties.”

Agreement

1. Definitions

Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.

Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.

Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

Authorized User” means Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.

Customer” means the customer named on the Subscription Plan, and includes any employee, consultant, or contractor of the Customer, provided that the employee, consultant, or contractor is using the Services in the performance of his or her duties as an employee, consultant, or contractor of the Customer.

Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.

Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.

Documentation” means any manuals, instructions, or other documents or materials that Mercado provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Mercado Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.

“Effective Date” shall be the date as listed on the Subscription Plan.

Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or Mercado Systems as intended by this Agreement. Harmful Code does not include any Mercado Disabling Device.

Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

Mercado Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Mercado or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Mercado or its designee.

Mercado Materials” means the Services, Documentation, and Mercado Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Mercado or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Mercado Systems. For the avoidance of doubt, Mercado Materials include Resultant Data and any information, data, or other content derived from Mercado’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.

Mercado Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of Mercado or any Subcontractor.

Mercado Systems” means the information technology infrastructure used by or on behalf of Mercado in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Mercado or through the use of third-party services.

Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

Personal Information” means any information that, individually or in combination, does or can identify a specific individual or device or by or from which a specific individual or device may be identified, contacted, or located. Personal Information includes all “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “Personal Data” as defined in the EU Data Protection Directive (Directive 95/46/EEC), and all rules and regulations issued under any of the foregoing.

Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.

Resultant Data” means data and information related to Customer’s use of the Services that is used in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services and to industry specific data related to Customer’s industry.

Services” means the import compliance software-as-a-service described in the Subscription Plan.

Subscription Fee” means the fee to be paid by Customer, in accordance with the Subscription Plan, to Mercado as consideration for the license granted under this Agreement and the right to use the Services and the Documentation.

Subscription Plan” means the subscription plan as agreed to in writing between Customer and Mercado via online the Customer’s online order as included and incorporated in the Agreement.

Terms of Service” means the Mercado Labs terms of services available at https://mercadolabs.com/terms-of-service/.

Territory” means in the United States.

Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Mercado.

2. Services

2.01 Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement and Terms of Service, Mercado hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12.02) right to access and use the Services as established in the Subscription Plan during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use.

2.02 Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Mercado Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, Mercado Materials, and the Third-Party Materials are and will remain with Mercado and the respective rights holders in the Third-Party Materials.

2.03 Changes. Mercado reserves the right, in its sole discretion, to make any changes to the Services and Mercado Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Mercado’s services to its customers; (ii) the competitive strength of or market for Mercado’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.

2.04 Subcontractors. Mercado may from time to time in its discretion engage third-parties to perform Services (each, a “Subcontractor”).

2.05 Suspension or Termination of Services. Mercado may, directly or indirectly, and by use of a Mercado Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Mercado Materials, without incurring any resulting obligation or liability, if: (a) Mercado receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Mercado to do so; or (b) Mercado believes, in its good faith and sole discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement or Terms of Service, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section 2.05 does not limit any of Mercado’s other rights or remedies, whether at law, in equity, or under this Agreement.

3. Customer Restrictions and Responsibilities

3.01 Restrictions on Use of the Software. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.

3.02 Export Control. Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement

3.03 Customer’s Privacy Policy. If Customer offers services for use by others outside Customer’s organization, Customer must maintain a privacy policy, which is prominently identified or located where users access the Customer’s services. Customer’s privacy policy must meet applicable legal standards and accurately describe the collection, use, storage and sharing of any end user data.

3.04 Customer Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

4. Security

4.01 Mercado Systems and Security Obligations. Mercado will employ security measures in accordance with applicable industry practice (“Privacy Policy”).

4.02 Data Breach Procedures. Mercado maintains a data breach plan in accordance with the criteria set forth in Mercado’s Privacy Policy and shall implement the procedures required under such data breach plan on the occurrence of a “Data Breach” (as defined in such plan).

4.03 Prohibited Data. Customer acknowledges that the Services are not designed with security and access management for Processing the following categories of information: (a) Personal Information; (b) data that is classified and or used on the U.S. Munitions list, including software and technical data; (c) articles, services, and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, “Prohibited Data”). Customer shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Services, Mercado Systems, or any Mercado Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.

4.04 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Mercado Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

5. Subscription Fees and Payment

5.01 Subscription Fees. Customer shall pay Mercado the fees set forth in the Subscription Plan (“Subscription Fees”) in accordance with this Section 5.

5.02 Billing. Customer agrees to pay the Subscription Fees in accordance with the Subscription Plan and this Agreement. Customer agrees to provide a current, valid, accepted method of payment. Mercado will bill the monthly Subscription Fees fee to Customer’s payment method. The Subscription Fee remains for the same for each monthly term no matter if Customer accesses the Services during said monthly term.

5.03 Taxes. All Subscription Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Mercado’s income.

5.04 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available, Mercado may suspend performance of the Services until all past due amounts have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.

5.05 Subscription Fee Increases. Subscription Fees shall increase by 3% per year.

6. Confidential Information

Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third-party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

7. Intellectual Property Rights

7.01 Mercado Materials. All right, title, and interest in and to Mercado Materials, including all Intellectual Property Rights therein, are and will remain with Mercado and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of Mercado Materials except as expressly set forth in Section 2.01 or the applicable third-party license. All other rights in and to Mercado Materials are expressly reserved by Mercado. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Mercado an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

7.02 Consent to Use Customer Data. Customer hereby grants all such rights and permissions in or relating to Customer Data as are necessary to Mercado, its Subcontractors, and Mercado Personnel to perform their obligations in accordance with this Agreement.

7.03 License to Use of Resultant Data. Mercado hereby grants Customer an unlimited, perpetual right license to make use of such Resultant Data that is provided to Customer for its internal business purposes.

8. Representations and Warranties

8.01 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and (d) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

8.02 Additional Mercado Representations, Warranties, and Covenants. Mercado represents, warrants, and covenants to Customer that Mercado will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.

8.03 Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Mercado that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Mercado and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third-party or violate any applicable Law.

8.04 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 8.01 AND SECTION 8.02, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS.” PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

9. Indemnification

9.01 Mercado Indemnification. Mercado shall indemnify, defend, and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by Customer Indemnitee resulting from any Action by a third-party (other than an Affiliate of a Customer Indemnitee) that Customer’s or an Authorized User’s use of the Services (excluding Customer Data and Third-Party Materials) in accordance with this Agreement infringes or misappropriates such third-party’s US Intellectual Property Rights in the Territory. The foregoing obligation does not apply to the extent that the alleged infringement arises from:

  • (a) Third-Party Materials or Customer Data;
  • (b) access to or use of Mercado Materials in combination with any hardware, system, software, network, or other materials or service not provided by Mercado or specified for Customer’s use in the Documentation, unless otherwise expressly permitted by Mercado in writing;
  • (c) modification of Mercado Materials other than: (i) by or on behalf of Mercado; or (ii) with Mercado’s written approval in accordance with Mercado’s written specification;
  • (d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Mercado; or
  • (e) act, omission, or other matter described in Section 9.02(a)-(d), whether or not the same results in any Action against or Losses by any Mercado Indemnitee.

9.02 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Mercado and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Mercado Indemnitee”) from and against any and all Losses incurred by such Mercado Indemnitee resulting from any Action by a third-party (other than an Affiliate of a Mercado Indemnitee) to the extent that such Losses arise out of or result from, or are alleged to arise out of or result from:

  • (a) Customer Data, including any Processing of Customer Data by or on behalf of Mercado in accordance with this Agreement;
  • (b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Mercado’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Mercado;
  • (c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
  • (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third-party on behalf of Customer or any Authorized User, in connection with this Agreement.

9.03 Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD-PARTY.

10. Limitations of Liability.

IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THREE TIMES THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

11. Term and Termination

11.01 Term. The initial term of this Agreement, and the license granted under this Agreement, shall commence the Effective Date and shall continue for two years unless otherwise terminated as described in this Section 11 (the “Initial Term”).

11.02 Renewal Term. This Agreement will automatically renew for additional successive one (1) month terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”).

11.03 Termination for Cause. Either Party may terminate the Agreement for cause if the other Party materially breaches the Agreement and such breach remains uncured for thirty (30) days after written notice from the non-breaching Party.

11.04 Rights on Termination. On termination, all rights granted to Customer under this Agreement cease and Customer will promptly cease all use and reproduction of the Services.

11.05 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 6, Section 7, Section 8.04, Section 9, Section 10, and Section 12.

12. Miscellaneous

12.01 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

12.02 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Mercado’s prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Mercado’s prior written consent is required.

12.03 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other Party arising out of or related to this Agreement, the prevailing Party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party.

12.04 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

12.05 Dispute Resolution. In the event of any dispute between the Parties arising out of this Agreement, the Parties shall first attempt to resolve the dispute via non-binding mediation with a mutually agreed upon mediator via phone or video conference, or, if in person, in Dallas County, Texas.

12.06 Entire Agreement. This Agreement, together with the Subscription Plan, any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement; (b) second, the exhibits, schedules, attachments, and appendices to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.

12.07 Force Majeure. In no event shall Mercado be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Mercado's reasonable control, including but not limited to acts of God, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo (each a “Force Majeure Event”).

12.08 Further Assurances. On a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.

12.09 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city of Dallas and County of Dallas, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.

12.10 Limitations Period. No Action arising out of or in connection with this Agreement or the transactions contemplated by the Agreement may be brought by either Party against the other more than 365 days after knowledge of the Action accrues.

12.11 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

12.12 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement for Mercado and at the address set forth in connection the Customer account for Customer (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.

12.13 Public Announcements. Either party may include the other party’s name and other indicia in its lists of partners in promotional and marketing materials.

12.14 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

12.15 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

12.16 Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.



[End of Agreement]
Mercado | Bring Order to your Imports
                                               
© Mercado Labs Inc.
Designed by Studio Nine
From us to you...

Thank you for using Mercado. Our goal is to empower businesses to better navigate the complex world of importing. We know data security is of paramount importance, so we place high standards on ensuring it is safely and respectfully secured. We are committed to following and continuously evolving best practices to support this principle. Your data is yours, and we guard it closely. We do not sell any of your information, and we will always be fully transparent on how we collect and use your data. That's a promise.