ChannelAdvisor Master Subscription Agreement

This Agreement governs Company’s use of the ChannelAdvisor Complete™ software platform and any Additional Services.  The Agreement is entered into between Company and CA.  Words in initial capital letters shall have the meanings set forth in Section 1.0 (DEFINITIONS) or as otherwise defined in the Agreement.

In consideration of the covenants and promises contained in the Agreement and as indicated by Company’s submission and CA’s acceptance of a MSO, we agree as follows:

1.0 DEFINITIONS. As used in the Agreement, the following words shall have the meanings set forth below:

1.1 “Additional Services” means the services set forth in an ASO accepted by CA.

1.2 “Agreement” means the terms and conditions set forth herein, an applicable MSO, and any additional terms and conditions set forth in a duly submitted and accepted ASO.

1.3 “ASO” means a duly submitted and accepted Additional Services Order Form, either in online form or written form, setting forth the terms and conditions of any additional services agreed upon between the Parties under an MSO or as may be directly tied to the MSA and not tied to a particular MSO.   “Acceptance” from CA for written ASOs occurs when CA countersigns the ASO, and ”acceptance” occurs for online ASOs when Company (through a representative/employee) clicks “I accept” or similar designation online (and any associated acknowledgements) and a confirmation email is generated from CA.

1.4 “CA” means the ChannelAdvisor affiliated corporate entity set forth in the MSO providing the service to Company.

1.5 “CA Network” collectively refers to the marketplaces, search engines, comparison shopping sites, and the like, that CA supports as destinations for Services related to the ChannelAdvisor Complete software platform functionality.  The Services associated with each module that is a part of the ChannelAdvisor Complete software platform supports certain CA Network Sites.  For the avoidance of doubt, each module may support some, but not all, CA Network Sites.

1.6 “CA Network Site” refers to those third party Internet websites that CA supports as destinations for the Services associated with a Module.  Upon CA’s permitting Company’s access to additional sites (i.e. international marketplaces), those sites shall be deemed “CA Network Sites” for purposes of the applicable Module.  CA, in its sole discretion, may change available CA Network Sites from time to time.  If CA stops supporting a CA Network Site and the site is material to Company’s use of a Module, Company’s sole and exclusive remedy is the right to terminate the MSO for the affected Module by providing fifteen (15) days prior written notice of Company’s intent to do so.

1.7 “ChannelAdvisor Complete software platform” or “CA Complete” refers to CA’s proprietary web-hosted software platform that enables sellers to distribute, advertise, post and manage product sales and search campaigns on CA Network Sites. CA Complete includes the following modules: Premium Marketplaces; Paid Search; and Comparison Shopping (each generically referred to as a “Module”). Additional Modules may be added in CA’s discretion.  For purposes of this Agreement, CA Complete for Company is comprised of the Modules Company subscribes to under a MSO.  CA, in its sole discretion, may change CA Complete’s features and functions or those of any Additional Service(s) without prior notice.  If such changes reduce functionality and such functionality is reasonably material to Company’s use of a particular Module then Company’s sole and exclusive remedy for such material adverse reduction in functionality is to provide to CA a summary as to how Company is materially affected and to terminate the MSO for that Module by providing thirty (30) days prior written notice.

1.8 “Company” means the entity or individual who executed an MSO to receive services from CA and identified in the MSO as the contracting entity or individual.

1.9 “Comparison Shopping Module” means the self-managed Comparison Shopping Module, as further described in the Comparison Shopping MSO.

1.10 “Confidential Information” means any information directly or indirectly disclosed by one party to the other party, in writing, orally or by inspection of tangible objects, and which is designated as “Confidential,” “Proprietary” or some similar designation.  Information communicated orally will be considered Confidential Information only if designated as Confidential Information upon disclosure and confirmed by the discloser in writing no later than 20 days thereafter.  The ChannelAdvisor Complete platform and the related documentation and visual interfaces, buyer information, pricing and any negotiated terms of this Agreement, and market strategies, are CA’s Confidential Information without need to mark or designate such information as confidential or proprietary.  Confidential Information does not include any information that (i) was publicly known and made generally available in the public domain before disclosure; (ii) becomes publicly known and made generally available after disclosure through no action or inaction of the receiving party; (iii) is already in the receiving party’s possession at the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach the third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

1.11 “Documentation” means all materials, including drawings, diagrams, specifications, documentation, training manuals and user manuals, provided by CA to assist Company’s use of CA Complete, servicing of Modules and in providing and using Additional Services.

1.12 “Fees” means the monies due from Company to CA as consideration for the services and licenses set forth in the Agreement.  Fees are further described in the Agreement, Section 3.0.

1.13 “GMV” or “Gross Merchandise Value” means the sum that is equal to the final value of Company’s merchandise sold on a CA Network Site (or Company’s e-commerce website) using any CA service/software (excluding shipping, sales tax, and, where applicable, VAT and GST).  GMV is calculated at the time of completion of the checkout by a particular buyer except for sales on eBay (where GMV is determined at the time a prospective buyer commits to buy an item for fixed price, or in the case of an auction, at the close of the auction). Company is responsible for accurate order value (Oval) information being passed back to CA to track GMV on Company’s e-commerce website and installing the correct tracking pixels.  GMV also includes other products or services Company sells (as an upsell) using the CA’s check-out functionality (i.e. accessories, other products etc.).   For purposes of calculating the monthly GMV fee, GMV shall be converted to the appropriate fee currency (set forth in a Statement of Work, MSO/Fees addendum, or applicable ASO) on a daily basis (using GMT as the standard time).  Such currency conversion is calculated by applying the applicable rates found at http://www.currencysystem.com/currencyserver/feeds/ (or as may be changed to another similar service from time to time).

1.14 “Marks” means any word, symbol or device, or any combination thereof, used or intended to be used by a party to identify and distinguish the party’s or its third party licensor’s, products or services from the products or services of others, including, without limitation, trade names, trademarks, service marks, and logos.  Company Marks include third party marks Company may provide to CA or which are incorporated in the Materials.

1.15 “Materials” means, in using services hereunder, the sum of all Company product information and files Company provides to CA, or uploads to the CA Network through, or otherwise stored by Company in, the CA Complete software platform (or other software licensed under the Agreement) or by an Additional Service, including, without limitation, image files, product descriptions and templates.

1.16 “MSO” means a duly submitted and accepted Module Subscription Order form, either in online form or written form. “Acceptance” from CA for written MSOs occurs when CA countersigns the MSO, and ”acceptance” occurs for online MSOs when Company (through a representative/employee)  clicks “I accept” or similar designation online (and any associated acknowledgements) and a confirmation email is generated from CA.

1.17 “Paid Search Module” means the self-managed Paid Search Module, as further described in the Paid Search MSO.

1.18 “Premium Marketplaces Module” means the Module that supports sellers’ management of their online sales on the supported CA Network Sites, such as eBay. The Premium Marketplaces Module functionality includes an auction management system, reporting, account administration, customer service console, and transaction process management, and other functionality that may be further detailed on the Premium Marketplaces MSO.  Premium Marketplaces Module may include Premium Stores as set forth in an ASO.

1.19 “Services” shall mean the software and/or services provided/licensed by CA under a MSO, ASO or mutually agreed upon statement of work, incorporated hereunder by reference.

1.20 “Site Account” means Company’s account with a CA Network Site, as applicable.

1.21 “Site Fees” means fees incurred in listing, advertising, distributing, marketing, posting and/or selling Company’s items, search terms or information to the CA Network Sites. Company is responsible for paying all Site Fees.

1.22 “Term” means the period of the Agreement as set forth in Section 7.1.

2.0 LICENSE/SCOPE/LIMITATIONS/SERVICES.

2.1 License Grants.

a. Premium Marketplaces Module.  Upon Company entering into an MSO for the Premium Marketplaces Module that is subject to the Agreement terms and conditions and conditioned upon Company’s on-going payment of Fees, CA grants and Company accepts from CA the nonexclusive, nontransferable, limited license, without right to sublicense, to access and use the Premium Marketplaces Module (and any associated documentation) via the Internet or a dedicated communications line solely to post and sell Company’s products on the CA Network Sites (for purposes of this subsection “a” CA Network Sites shall only mean those supported by the Premium Marketplaces Module). Company’s use is also limited to Section 2.1 (d) below. Company may not use the Premium Marketplaces Module for any purpose other than as expressly set forth in this Agreement.

a(1). E-Commerce Shopping Cart.  Unless expressly agreed, as part of the Premium Marketplaces Module functionality, CA will host and collect buyer payment information through an E-Commerce shopping cart.  E-Commerce shopping cart functionality includes sales tax calculations on all checkouts (tax rates are either provided by Company or through a CA service.  The former shall be the rule unless Company agrees in the MSO or ASO to pay an additional charge for the CA dynamic sales tax service). Company is responsible for identifying in writing, all states, countries, territories, or provinces where CA should calculate sales tax for a particular product to be sold on a Marketplace Site.  Company assumes the risk of credit card fraud. CA is not responsible for tax calculations made.  CA grants Company a limited, non-exclusive, non-assignable, non-transferable license, without the right to sublicense, to access and use the secure E-Commerce Shopping Cart website, via the Internet or a dedicated communications line only to view and retrieve purchaser information.  Company shall have privacy obligations related to this data as further described below.

b. Paid Search Module. If Company and CA enter into an MSO for the Paid Search Module that is subject to the Agreement terms and conditions and conditioned upon Company’s on-going payment of Fees, CA grants to Company a non-exclusive, non-transferable, limited license without the right to sublicense, to access and use the Paid Search Module to support and manage Company’s online paid search campaigns and to analyze the results of Company’s campaigns. Company’s use is also limited to Section 2.1 (d) below.  Company may not place an unreasonable or disproportionately large load on CA’s systems, as determined by CA in its sole discretion (including without limitation the number of keywords managed). CA, in its sole discretion, may limit or restrict Company’s access if it deems Company’s activities unreasonably or disproportionately burden the Paid Search Module.  CA is not responsible for the actions of CA Network Sites, including, without limitation, changes to or the addition of restrictions associated with a CA Network Site or the unavailability of a CA Network Site or search engine.

c. Comparison Shopping Module.  If Company and CA enter into an MSO for the Comparison Shopping Module that is subject to the Agreement terms and conditions, CA’s performance is conditioned upon Company’s on-going payment of Fees.  Subject to the requirements of the preceding sentence, CA grants to Company a non-exclusive, non-transferable, limited license without the right to sublicense, to access and use the Comparison Shopping Module to support and manage Company’s online shopping campaigns and to analyze the results of Company’s campaigns.   Company’s use is also limited to Section 2.1 (d) below.  As determined by CA in its sole discretion, Company may not place an unreasonable or disproportionately large load on CA’s systems (including without limitation, the number of keywords managed). CA may limit or restrict Company’s access to the Comparison Shopping Module if CA determines that Company’s activities unreasonably or disproportionately burden the Module.  CA is not responsible for the actions of CA Network Sites, including, without limitation, changes to or the addition of restrictions associated with a CA Network Site or the unavailability of a CA Network Site or shopping provider.

d. Posting Accounts Limitations.  The maximum number of posting accounts per geography shall be limited to two (2).   A posting account is required within the CA Complete platform to sell inventory on the supported CA Network Sites in using a Module(s).  Each posting account is configured with a posting geography, which defines the eligible CA Network Sites within that Geography, a time zone and a currency.   For example, if a posting account is configured with the United Kingdom geography, it will enable selling on, for example, eBay UK and Amazon UK (if Company is using Premium Marketplaces Module) and the currency of the account will be represented in British Pounds.  Additional posting accounts may also be utilized within a specific locale for various business reasons.  A posting account is at the CA Complete level and spans all modules. Thus, the two posting account limitation applies regardless as to number of Modules used by Company.  By way of example, if Company signs for Premium Marketplaces and creates two posting accounts and then later signs for Paid Search, Company shall only have the two posting accounts which would have to be used by Company for Paid Search.  Additional posting accounts may be added by agreement of the parties, subject to additional pricing.  An ASO shall be used to add the accounts.  Furthermore, each posting account shall be limited to 50,000 SKUs; any additional amount shall be agreed to by the parties and may be subject to additional fees.

2.2 Restrictions. Except as expressly set forth in this Section 2.2, Company shall not itself, nor through any third party, download, reverse engineer, disassemble, decompile, create derivative works of, distribute, transmit, webscript, publish, display, sell, lease, or attempt to derive the source code or design information of CA Complete (including each Module individually or collectively), other software licensed under the Agreement or Additional Services. Company is permitted to access and use CA Complete and any Additional Services for Company’s personal use, and Company may copy, distribute and transmit content provided that these activities are automatically done through Company’s browser software incidental to Company’s use of the licensed software and Additional Services. Company may not mirror on Company’s web site any portion of CA Complete, other licensed software, or Additional Services or display through Company’s web site any results pages or other information from any of the software or services that CA has licensed for Company use under the Agreement. CA reserves all rights not explicitly granted to Company. If Company is a business, “personal use” includes any use set forth above and undertaken by the personal representatives of Company’s business and for the benefit of the business. The licenses in the Agreement do not grant Company the right to make any modifications to CA Complete.  CA, in its sole discretion, may provide Additional Services to achieve interoperability between CA Complete (or other licensed software) and other hardware or software.  Company may not remove or obscure any proprietary notices affixed to any software or service.  Company agrees that the underlying structure, sequence, organization and source code of the software, the use of which CA grant to Company under the Agreement and related documentation, and Additional Services and any work products from services performed, are CA’s valuable and confidential trade secrets. Company shall comply with all applicable laws and regulations to ensure that neither the licensed software or code, nor services work product, nor any direct product thereof, are exported, directly or indirectly, in violation of applicable law. Company represents and warrants that Company will not use any device, software or routine to interfere or attempt to interfere with the proper working of CA Complete.

2.3 Authorization.  Company authorizes CA, on Company’s behalf, to access the CA Network Sites with which Company has established a Site Account to retrieve and post information in furtherance of the Services associated with Module Services or any Additional Services provided by CA to Company.

2.4 Ownership.  CA (or its licensors) exclusively own, and Company hereby assigns, to the maximum extent Company may have acquired by law or otherwise, all right, title and interest in and to CA Complete and any other software licensed under the Agreement, Additional Services and/or work product/developments created in CA providing the  Services (and all content contained therein, except for Company Materials), CA Marks and CA intellectual property, and the functionality and URL’s that enable Company access to CA Complete and the services.  In addition, Company shall not challenge, directly or indirectly, any of CA’s (or its licensors) rights as set forth in the preceding sentence.  CA does not grant Company any rights except as expressly set forth in the Agreement.  Company shall not directly nor indirectly, register, apply for registration of, nor attempt to acquire any legal protection for any items or rights described in this section 2.4.   Nothing herein in this Agreement shall prohibit CA from using in any manner it wishes, and CA shall own, all non-personally identifiable information (i.e. thru use of cookies or the like) collected by CA in providing services to Company of any consumer/visitor.

2.5 Content/Availability.  CA does not control the (i) quality, safety or legality of items or services available through CA Network Sites, (ii) truth or accuracy of the content from those CA Network Sites, or (iii) availability or technical capabilities of the CA Network Sites nor the links to those sites.  CA is not responsible for content supplied by third parties, or for actions Company takes in reliance on that content.  CA shall have no liability to Company for failures based on services not provided by CA.  Company shall comply with all CA Network Sites terms and conditions and use restrictions.

2.6 Access.  CA may access, monitor, remove, or disable Company access to any Materials if (a) a CA Network Site(s) requests that CA do so; (b) CA, in its sole discretion, believes it may incur liability because of such Company Materials; or (c) CA is required to do so by law or government order or process, or to enforce the terms of this Agreement.  CA may change any information, features or functions of CA Complete, or any other software licensed hereunder, and the Additional Services provided, without prior notice.  If CA’s changes to CA Complete functionality materially impair Company’s use of a Module and the Additional Services, Company’s sole and exclusive remedy it the right to terminate the applicable MSO for the affected Module by providing CA with thirty (30) days written notice of Company’s intent to do so.  CA may temporarily suspend CA Complete, or any other software licensed hereunder or Additional Services provided, for planned and unplanned maintenance.  CA shall give advance notice of maintenance, unless, in CA’s sole discretion, it is impractical to do so.

2.7 Documentation Licenses. CA grants Company the non-exclusive right to use the Documentation solely in conjunction with Company’s use of the Modules and/or Additional Services.  CA, and any applicable third parties, reserves all rights in their respective Documentation.

3.0 FEES.

3.1 In exchange for the licenses granted herein and for the associated support services, training and integration, Company agrees to pay the Fees (in accordance with section 5 below) as set forth in the MSO (and associated Fees addendum) and any Fees set forth in any ASO or addendum or amendment.

3.2 Fee Changes.  In its sole discretion, CA reserves the right to raise or modify its Fees, or change its Fee terms, in any manner, in any MSO, Fees addendum, SOW, ASO, or other agreement under this MSA, to be effective at the start of a Renewal Term so long as such notice is provided to Company at least 60 days in advance of the expiration of the then current Term.  If Company wishes not to renew Company Agreement under the new Fee terms Company may terminate at the end of the then current Term in accordance with section 7.1 below.  Email Notice is sufficient notice for the Fee changes set forth herein and do not require Company’s agreement to such change.  If Company does not terminate at the end of the then current Term in accordance with section 7.1, the Fee changes are deemed automatically accepted and effective as of the start of the Renewal Term.

4.0 COMPANY’S RESPONSIBILITIES

4.1 License from Company.  Only for purposes related to, and limited to, Company’s use of CA Complete, other software licensed hereunder, and/or Additional Services, and in order for CA to provide any software and services, Company hereby grant CA a non-exclusive, worldwide, royalty-free, irrevocable (during the Term only), sub-licensable right to exercise the copyright and publicity rights Company has in the Materials.  Company represents and warrants that the Materials (a) are owned, validly licensed for use by Company or are in the public domain, (b) do not constitute defamation, libel, or obscenity, (c) do not result in any consumer fraud, product liability, or breach of contract to which Company is a party or cause injury to any third party; and (d) do not contain any viruses, Trojan horses, worms, time bombs or other computer programming routines that are intended to interfere or disrupt CA Complete.

4.2 Company Site Accounts/Access/Use.  Company is responsible for opening all Site Accounts with the applicable CA Network Sites and agreeing to, and complying with, all applicable terms of use for the respective CA Network Site.  Through Company’s use of Modules and related Services, Company’s use of the applicable CA Network Site’s content and Marks is limited solely as such content and marks are displayed by CA Complete in conjunction with Company’s authorized use of the Modules.  Company shall have no right to sublicense, transfer, assign, sell or otherwise use such content or Marks.  Company acknowledges that all right, title and interest in and to any content, Marks, databases, and sites shall remain with the applicable CA Network Site.  Each CA Network Site is a third party beneficiary of the Agreement for purposes of enforcing its rights, including, without limitation, immediate termination of Company’s access to the CA Network Site or ability to use the content or Marks in accordance with this section.

4.3 Privacy. Company shall have and apply a privacy policy that complies with all applicable laws, rules and regulations, including, without limitation, the treatment of all personal information in accordance with European and non-U.S. governing authorities to the extent that Company sells into international marketplaces or otherwise are subject to the laws of such authorities.  Company shall not retain personal information for any period longer than necessary to complete the transaction, and Company shall establish security processes to protect such information in accordance with applicable law and at least as restrictive as industry standards (but no less than reasonable care).  Company acknowledges that Company’s information and Company’s buyer’s information (personal or otherwise) may be transmitted to the United States or European jurisdictions as a result of CA providing the software and services hereunder. Furthermore, Company shall ensure that Company’s privacy statement discloses “cookies” (or the similar) may be used (by Company or a third party i.e. CA) to track certain non-personally identifiable browsing and purchasing habits.

4.4 Security Breaches.  In accessing CA Complete as permitted herein, Company shall report any security breaches promptly, and Company acknowledges that Company is responsible for any breaches of security through Company’s access of CA Complete.

4.5 Compliance with Laws.  Company shall comply with applicable laws, rules and regulations, if any, related to the performance of Company’s obligations under this Agreement and activities undertaken by Company in connection with Company’s use of the Modules.  Without limiting the general nature of the preceding sentence, Company expressly agrees to comply with all Federal and state laws governing the online sale of goods and services.

4.6 Spam/Unsolicited Email.  Company is prohibited from using or involving CA Complete or any Module, any other software licensed hereunder or any Additional Service for spamming or sending any unsolicited emails or information to any person or entity.  Furthermore, for emails that do not violate this section that are sent through CA Complete, any other software licensed hereunder or any Additional Service, Company must provide a way for buyers/consumers to request of Company to stop receiving emails for which a buyer/consumer originally opted to receive. Company represents, warrants and covenants that Company will not engage in the prohibited activities set forth in this section.  Using a Module for such purposes may result in immediate termination of this Agreement or suspension of Services, and any other available legal or equitable remedies.

4.7 Language Conversion/Support. Company is responsible for providing all product information in local languages and for providing any buyer support in those local languages, unless specifically agreed to with CA in writing.

4.8 VAT/GST etc. Company is responsible for identifying any items subject to use, VAT, GST, or the similar taxes and provide those rates and information to CA (as applicable for a Module) and Company shall apply such rates as required by applicable law in using CA Complete.  Company is responsible for the determining and paying all such taxes.

4.9 Company Indemnification. Company shall indemnify, defend and/or settle, hold harmless CA, its directors, officers, employees and permitted assigns from any and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees), pursuant to any third party claim or assertion brought against CA or its affiliates, and their respective directors, officers, employees and assigns (a) arising out of or related to Company failure to comply with or breach of the terms and conditions of this Agreement; (b) arising from (including, without limitation, defamation claims, intellectual property infringement claims, and product liability claims) Company Marks, ad content, products, product information, and/or Materials; (c) arising out of or related to the gross negligence or willful misconduct of Company, and/or Company’s employees or agents; and (d) Misappropriation or fraud related to buyer information (personal or otherwise) or buyer funds; provided that CA notifies Company within a reasonable time in writing of any such claim, promptly tenders the control of the defense and settlement of any such claim to Company (at Company’s expense and with Company’s choice of counsel), and reasonably cooperates with Company (at Company request and expense) in defending or settling such claim, including but not limited to providing any information or materials reasonably requested and necessary for Company to perform the foregoing. Company will not enter into any settlement or compromise of any such claim without CA’s prior consent, if the settlement would require admission of fault or payment by CA.

5.0 PAYMENT

5.1 Company is obligated to CA for all Fees set forth in the applicable MSO (and associated Fees addendum) and applicable ASO.  Company shall make payments in US Dollars unless otherwise stated.  Fee terms are set forth in the applicable MSO or ASO and in this section 5.1.  On or about the close of every month CA shall process payments/Fees owed by Company (i.e. by credit card, bank draft or other acceptable method as set forth in the MSO or ASO).   If the automatic payment processing fails, then Company shall remit payment within ten (10) days of notice from CA of payment failure. If CA does not receive payment within the ten (10) day period then CA will have the right to disable Company’s access to any Modules (and any additional software) and/or any Additional Services without liability to CA.  Any late payments that Company does not in good faith dispute shall bear an additional charge of 1½% per month, or the maximum rate permitted by law, whichever is lesser, from the date due until CA receives payment.

5.2 Company is responsible for Site Fees incurred in accessing and transacting with those CA Network Sites by Company’s use of CA Complete and Company shall pay those fees directly to the respective CA Network Site (unless expressly agreed to otherwise with CA in an ASO or MSO) in accordance with their terms.

6.0 MARK LICENSES.

6.1 CA Marks. CA provides its CA Marks, including without limitations, its “powered by ChannelAdvisor” branding, in ad template taglines, e-Mail templates, reports, user interfaces, storefronts, about me pages, screen/data views, or other parts of the software or services. Company acknowledges that all right, title and interest in the CA Marks is exclusively owned by CA and/or its licensors, and that all use of the CA Marks inures to the benefit of CA and/or its licensors. Company agrees: (a) not to assert copyright, trademark or other intellectual property ownership or other proprietary rights in the CA Marks or in any element, derivation, adaptation, variation or name thereof; (b) not to contest the validity of, or CA’s, or its licensor’s, ownership of, any of the CA Marks; and, (c) Company shall not, in any jurisdiction, adopt, use, or register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, or as a domain name, any CA Marks, or any word, symbol or device, or any combination confusingly similar to any of the CA Marks. No license to use the CA Marks is implied or granted herein, except to the extent that a limited non-exclusive, non-transferable, non-sublicensable license is granted to Company to use the CA Marks only as part of the software and services provided hereunder and as expressly limited hereunder.  Any license to use CA Marks shall be in accordance with this section and any other CA instructions and rules as may be provided from time to time.  Except as may be expressly permitted under Section 2.2 above, Company shall not attempt to remove, obscure, reproduce, change the location or size, or change the look or feel, sell, distribute, decompile, reverse engineer, webscript, publish, transmit or use in any marketing materials, or otherwise alter in any manner any CA Marks or use the CA Marks in any manner that may dilute, diminish, or otherwise damage CA’s, or it’s licensor’s, rights and goodwill in their respective trademarks, trade names, service marks, and/or logos. Company may not use CA Marks in any manner that implies sponsorship or endorsement by CA of services and products other than those expressly authorized by CA.

6.2 Mark License from Company.  Company hereby grants CA a limited, non-exclusive, non-assignable, non-transferable license, without right to sublicense, license to use Company Marks for purposes of carrying out its rights and obligations under this Agreement, including marketing and placing Company Marks on the CA website. Company Marks must be reproduced as exact copies, and all use of Company Marks is subject to the branding guidelines provided by Company, which may be reasonably revised from time to time and are available from Company and actually provided to CA by Company. CA acknowledges that all right, title and interest in the Company Marks are exclusively owned by Company and/or Company’s licensors, and that all use of Company Marks inures to the benefit of Company. CA shall not assert copyright, trademark or other intellectual property ownership or other proprietary rights in Company Marks or in any element, derivation, adaptation, variation or name thereof. CA shall not contest the validity of, or Company’s ownership of, any of Company’s Marks.  During the term of this Agreement, CA shall not, in any jurisdiction, adopt, use, or register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, or as a domain name, any of Company’s Marks, or any word, symbol or device, or any combination confusingly similar to any of Company’s Marks.

7.0 TERM AND TERMINATION

7.1 Term.  This Agreement is effective as of the Effective Date set forth in an MSO and continues in full force and effect for the term period stated in the last expiring MSO or, if not stated therein, until twelve (12) months after the Effective Date in the last expiring MSO (date of last signature of one of the parties), subject to Company’s payment of fees and Company’s strict compliance with the terms of this Agreement.  Unless otherwise explicitly stated in the MSO, this Agreement will renew automatically for successive one-year periods (“Renewal Term(s)”) unless either party gives written notice to the other party at least thirty (30) days prior to the expiration of the Term, or respective Renewal Term, that it does not wish to auto-renew the Agreement.

7.2 Termination. This Agreement may be terminated other than at the end of a term as follows: (a) either party may terminate on written notice to the other party if that other party has materially breached the Agreement and such breach has not been cured within thirty (30) days (or, if not capable of cure within thirty (30) days, has undertaken efforts to cure and is diligently pursuing such cure) after written notice of the breach; (b) CA may terminate in the event of a payment default that is not cured by Company within the time provided for in Section 5.1 above; (c) CA may terminate this Agreement in the event CA  is party to a merger, acquisition or similar transaction in which the other party to the transaction requires termination of similar agreements; (d) as may be mutually agreed to in an MSO;   (e) by CA, immediately, for Company’s breach of the license, restrictions and limitations found in Sections 2.0, or for breach of Sections 4.3, 4.4, 4.5 or 4.6; (f) CA may terminate this agreement (including any or all MSOs and ASOs) without cause and without liability upon thirty (30) days written notice to Company;  and (g) to the extent permitted by law, one party may terminate this Agreement on written notice to the other party if that other party makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to a petition in bankruptcy not dismissed in sixty (60) days, or has wound up or liquidated.  In the event that any of the above events occurs, that party shall immediately notify the other party of its occurrence.

7.3 Effect of Expiration or Termination. Upon expiration or termination of this Agreement, the licenses granted herein terminate. The following sections of this Agreement survive expiration or termination of this Agreement: 1.0, 2.4, 4.9, 5.0 (to extent fees still owed), 7.3, 8.0, 9.0, 10.0, 11.0, and 12.0 and any other provision or partial provision which by its nature would reasonably extend beyond the termination of the Agreement.

8.0 DISCLAIMER OF WARRANTIES BY CA.

CA MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO CA COMPLETE (OR ANY OTHER SOFTWARE LICENSED), ANY ADDITIONAL SERVICES (INCLUDING WITHOUT LIMITATION, INTEGRATION) OR CA MARKS.  CA HEREBY DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO CA COMPLETE (OR ANY OTHER SOFTWARE LICENSED), ANY ADDITIONAL SERVICES (INCLUDING WITHOUT LIMITATION, INTEGRATION) OR CA MARKS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AGAINST INFRINGEMENT AND IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES THAT CA COMPLETE (OR ANY OTHER SOFTWARE LICENSED) WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR DEFECT FREE OR THAT ANY ADDITIONAL SERVICES WILL BE PERFORMED ERROR-FREE.  CA MAKES NO REPRESENTATIONS OR WARRANTS REGARDING CA COMPLETE’S LOCALIZATION TO A PARTICULAR MARKET (I.E. LOCAL LANGUAGE, LOCAL SUPPORT OF TAXES OR LOCAL PAYMENT OR SHIPPING CARRIERS).  CA MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH MODULE OR FROM ANY CA NETWORK SITE OR INTERFACE.

COMPANY IS RESPONSIBLE FOR READING AND UNDERSTANDING THE DOCUMENTATION AS IT RELATES TO COMPANY’S USE OF MODULE FUNCTIONALITY AND USE.  IF COMPANY HAS ANY QUESTIONS CONCERNING MODULE OR SERVICES FUNCTIONALITY OR USE, COMPANY IS RESPONSIBLE FOR CONTACTING CA TO REQUEST CLARIFICATION PRIOR TO ACCESSING OR USING THE FUNCTIONALITY OR SERVICES IN QUESTION.  CA IS NOT RESPONSIBLE FOR THE RESULTS OF COMPANY’S USE OF THE MODULES OR ASSOCIATED MODULE FUNCTIONALITY AS DESCRIBED IN THE DOCUMENTATION.  WITHOUT LIMITING THE GENERAL NATURE OF THE PRECEDING SENTENCES, CA IS NOT LIABLE FOR ANY COSTS INCURRED BY COMPANY AS A RESULT OF COMPANY’S FAILURE TO UNDERSTAND BIDDING AND SPENDING LIMIT FUNCTIONALITY.

9.0 INDEMNIFICATION

9.1 CA Indemnification. Subject to Section 10 (“CA Liability Limitation”) below,CA shall indemnify Company, and Company’s respective officers, directors, employees, permitted assigns and agents from and against any and all losses, costs, obligations, liabilities, damages, actions, suits, causes of action, claims, demands, settlements, judgments, and other expenses, (including but not limited to cost of defense, settlement, and reasonable attorney’s fees) of whatever type or nature, which are incurred by Company by reason of a third party claim (a) arising from Company authorized use of CA Complete infringing on a U.S Patent or U.S. Copyright; and (b) arising out of a claim that CA Marks (not a third party licensor marks) infringes upon a U.S Trademark;  provided that Company promptly notify CA in writing of any such claim, promptly tender the control of the defense and settlement of any such claim to CA (at CA’s expense and with CA’s choice of counsel), and reasonably cooperate with CA (at CA’s request and expense) in defending or settling such claim, including but not limited to providing any information or materials necessary for CA to perform the foregoing. CA will not enter into any settlement or compromise of any such claim without Company’s prior consent, if the settlement would require admission of fault or payment by Company.

Upon CA’s sole determination, that the use of CA Complete infringes upon the rights of any third party, CA may, at its sole discretion and own cost and expense, either: (a) procure the right for Company to continue to license CA Complete (at CA sole cost and expense); (b) modify CA Complete in such a way that the use thereof does not infringe on the rights of third parties; or (c) terminate this Agreement by notice to Company and refund any fees paid in advance  for the license to use CA Complete remaining (on a prorate basis) after the termination date.  CA shall have no liability or obligation hereunder with respect to any infringement claim if such infringement is  caused by (i) a modification made by Company to an item/software/service supplied by CA or a modification made by CA at Company’s request; (ii) use of CA Complete in an application or environment other than as intended hereunder; (iii) Company’s unauthorized use of CA Complete; (iv) CA acting in accordance with Company’s specifications or guidelines, or (v) the combination, operation or use of CA Complete with other third party product(s) not supplied by CA.  Company agrees to indemnify and hold harmless CA from and against all liabilities, obligations, costs, expenses and judgments, including court costs, reasonable attorney’s fees and expert fees, to the extent arising out of any of the circumstances stated in this Paragraph. The remedies set forth in this Section 9.1 are the SOLE AND EXCLUSIVE remedies of Company for the infringement of third party intellectual property rights by CA.

10.0 CA LIABILITY LIMITATION

CA IS NOT LIABLE IN ANY MANNER TO ANY PERSON (COMPANY) OR COMPANY FOR THE FAILURE OF THAT PERSON TO ENTER INTO A TRANSACTION BY MEANS OF COMPANY’S USE OF CA COMPLETE, ANY MODULE (OR OTHER SOFTWARE LICENSED), RELATED SERVICES OR ADDITIONAL SERVICES. COMPANY IS SOLELY RESPONSIBLE FOR ALL SELECTION OF PARTIES WITH WHOM COMPANY DOES BUSINESS, AND FOR TERMS AND CONDITIONS OF COMPANY’S AGREEMENTS WITH SUCH PARTIES AND WITH THE CA NETWORK SITES. IN NO EVENT SHALL CA BE LIABLE TO COMPANY FOR ANY FOR ANY LOST PROFITS, LOSS OF REVENUES, OR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGESOF ANY CHARACTER FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT CA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL CA’S AGGREGATE LIABILITY UNDER THIS AGREEMENT (FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT CA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE) EXCEED THE AMOUNTS ACTUALLY PAID BY COMPANY TO CA UNDER THE MSO GIVING RISE TO THE CLAIM DURING THE IMMEDIATELY PRECEDING TWELVE-MONTH PERIOD BEFORE THE CLAIM AROSE. IF APPLICABLE LAW DOES NOT PERMIT THE DISCLAIMER OF CERTAIN DAMAGES RELATED TO A PARTICULAR CAUSE OF ACTION, THEN THIS LIMITATION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

11.0 CONFIDENTIALITY.

A party receiving Confidential Information shall not disclose it to any third party or use it except to carry out its rights and responsibilities under this Agreement.  Each party shall keep the other party’s Confidential Information confidential using the same degree of care it uses to protect its own confidential information, but no less than reasonable care.  If either party receives a subpoena or other validly issued judicial process requesting, or is required by a government agency (such as the SEC) to disclose the other party’s Confidential Information, the receiving party shall notify the disclosing party,unless doing so would violate the subpoena or process, and shall reasonably cooperate to seek confidential treatment or to obtain an appropriate protective order to preserve the confidentiality of the Confidential Information.  All confidentiality obligations survive the Term for three (3) years.  The Agreement shall not be interpreted to limit either party’s right at any time to independently develop, market, license, or otherwise distribute, any product, in any manner. The parties agree that breach of confidentiality obligation will cause irreparable damage that cannot be fully remedied through the payment of monetary damages.  Accordingly, the injured party shall have the right to obtain injunctive relief for any such breach or threatened breach.  This remedy is in addition to any other remedies available at law or equity.

12.0 GENERAL PROVISIONS.

12.1 General.  CA will submit to Company, for prior written approval, which will not be unreasonably withheld or delayed, any press release, case study, or any other public statement (collectively “Public Statements“).  Company shall make no Public Statements concerning CA without CA’s express written consent.Notwithstanding the foregoing, either party may issue Public Statements or other disclosures as required by law as reasonably advised by legal counsel without the consent of the other party and in such event, the disclosing party will provide at least five (5) business days prior written notice of such disclosure. Neither party may assign this Agreement without the other party’s prior written consent, except that: (1) either party may assign this Agreement without the other’s consent in the case of a reorganization, merger, consolidation, or sale of all or substantially all of its assets; and (2) CA may assign this Agreement without Company’s consent to one of CA’s affiliates or subsidiaries.  The parties are independent contractors. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior or collateral agreements with respect to the subject matter hereof.  Any amendments to this Agreement must be in writing and executed by the parties, except that Fee changes may be implemented with need for mutual execution as set forth in Section 3.2 (“Fee Changes”) above. .If any provision of this Agreement is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of this Agreement and the severed provision shall be interpreted to be consistent with the Agreement.The failure of either party at any time or times to require performance of any provision hereof shall in no manner waive or affect the right at a later time to enforce the same. The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.  As between CA and Company, title and risk of loss of all goods marketed and sold by Company in connection with Company’s use of the Modules (and any other software licensed by CA) and Additional Services shall at all times remain with Company hereunder.

12.2 Notice.  Any notice required for or permitted by this Agreement shall be in writing and shall be deemed delivered if delivered as indicated: (i) by personal delivery when delivered personally, (ii) by overnight courier upon written verification of receipt, (iii) by telecopy or facsimile transmission when confirmed by telecopy or facsimile transmission report,  (iv) by certified or registered mail, return receipt requested, upon verification of receipt, , or (v) be email notification as long as “NOTICE” or “LEGAL NOTICE” appear in the subject line of the email – email must be set up to show at least a delivery confirmation.  Notices must be sent to the contacts identified in the MSO and at the address in the MSO, and in the case of CA, a cc: sent to the attention of its General Counsel (and, if by email, legal@channeladvisor.com).  It is Company’s responsibility to keep current Company’s contact information and Company may not claim, and hereby waive, any defense of lack of sufficient notice for Company’s failure to update Company’s notice contact information to be current.

12.3 Dispute Resolution, Governing Law, Jurisdiction and Venue.  To the extent the terms of an MSO or ASO conflict with the terms of this Agreement or with each other, then the proper order of determining authority shall be (in order starting with the document which controls first): 1) ASO; 2) MSO; and 3) this Master Subscription Agreement.  Any controversy or claim arising out of or relating to this Agreement, or the breach thereof (a “Controversy”), shall be settled in accordance with this section. The parties agree to settle all disputes promptly by negotiating in good faith. If a dispute has not been resolved within fifteen (15) days of complaint, either party may initiate a request for negotiation between executives who have the authority to resolve the matter.  If the matter has not been resolved within thirty (30) days of a party’s request for negotiation between executives, either party may initiate judicial proceedings (the forgoing time limitations shall not apply if a statute of limitation is to expire or if the party is seeking injunctive relief). The laws of the state of North Carolina, without regard to such state’s conflicts of laws provisions, shall govern this Agreement. Each party: (a) irrevocably and unconditionally consents and submits to the jurisdiction of the applicable courts located in Wake County, North Carolina for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of any process, summons, notice or document by registered mail or to the equivalent to the address set forth opposite in the MSO shall be effective service of process for any such action, suit or proceeding brought against such party; (c) irrevocably and unconditionally waives any objection to the laying of venue (forum non conveniens) of any action, suit or proceeding arising out of or relating to this Agreement in any appropriate court located in Wake County, North Carolina; and (d) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in any court located in Wake County, North Carolina has been brought in an inconvenient forum.

12.4 Force Majeure.  Neither party, nor its agents or suppliers, shall be liable for failure to perform, or the delay in performance of, any of its obligations under this Agreement if, and to the extent, that such failure or delay is caused by events beyond its reasonable control, including, but not limited to, acts of the public enemy or governmental body in its sovereign or contractual capacity, war, fire, floods, strikes, epidemics, quarantine restrictions, CA Network Site availability, Internet availability, civil unrest or riots, acts of terrorism, transportation delays, freight embargoes and/or unusually severe weather.  If so affected, the affected party shall use commercially reasonable efforts to avoid or remove such causes of non-performance or delay, and shall continue performance hereunder with reasonable dispatch whenever such causes are removed.  If any such non-performance or delay continues for more than thirty (30) days, this Agreement may be terminated by the unaffected party without liability upon written notice to the affected party.