Athos Commerce Service Terms (North America)
These Athos Commerce Service Terms (“Terms”) set out the terms and conditions under which B7 Interactive, LLC, d.b.a. Athos Commerce (“we,” “us,” “our,” “Athos Commerce”) agrees to provide services to the customer that accepts these Terms through the actions of itself or its representative (“you,” “your,” “Customer”).
1. Definitions; Construction
1.1 In this Agreement, the following terms and phrases shall have the following meanings:
“Affiliate” means an entity that controls, is controlled by, or is under common control with a party to the Agreement, where “control” is the right to vote a majority of the equity securities of the party or to otherwise dictate its overall management or policies;
“Agreement” means (i) these Terms, (ii) any online or written order by which these Terms are referenced or to which they are attached, and (iii) the other terms referenced herein;
“Authorized User” means an individual or service account authorized by Customer to access and use the Services;
“Free Services” means the beta, test, preview, pilot, trial, limited release, early access, or other free features or services that may be offered by Athos Commerce from time to time;
“Order Start Date” means the date on which Athos Commerce will begin providing Services as set out in the Order or, if no such date is specified, the date the Order becomes effective;
“Confidential Information” means any non-public information that a party (“Recipient”) receives from or learns about the other party (“Discloser”) that Recipient should reasonably understand to be confidential given the nature of the information, its markings, or the circumstances of its disclosure. Confidential Information does not include any information that is: (i) made generally available to the public through no wrongdoing of Recipient, (ii) rightfully learned or obtained by Recipient without any obligation of confidentiality, or (iii) independently developed by Recipient without reference to the Confidential Information;
“Customer Content” means all information, data, or materials provided by Customer to be processed in any way by the Services;
“Deliverables” means, exclusively, the work product and materials which are clearly and expressly identified as “Deliverables” in an Order;
“Force Majeure Event” means any cause beyond a party’s reasonable control affecting the performance of its obligations hereunder, including (i) acts of God, flood, drought, earthquake or other natural disaster; (ii) epidemic or pandemic; (iii) acts of terrorism, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (iv) nuclear, chemical or biological contamination or sonic boom; (v) any law or any action taken by a government or public authority; (vi) labor or trade disputes, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party); (vii) non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and (ix) interruptions of utility services;
“Intellectual Property” means any copyright, patent, trademark, trade secret, or similar proprietary right or rights, registered or unregistered, recognized in any jurisdiction in which a party does business;
“Metadata” means data about Customer’s use of the Services. Metadata does not include any Customer Content;
“Order” means a legally enforceable order, service order, statement of work, of other transactional document or form provided or made available to Customer by Athos Commerce describing the services to be provided by Athos Commerce and related commercial terms;
“Security Materials” means the materials, audit results, and compliance reports provided by Athos Commerce from time to time that describe our security program and safeguards; and
“Services” means: (i) the services provided by Athos Commerce which are described in an Order; (ii) if applicable, any ancillary services described in the Order, including implementation, support, and other professional services; and (iii) the underlying software, hardware, technology, design, methodology, know-how, interfaces, integrations, tools, documentation, or other intellectual property related to (i) or (ii). Services exclude the Free Services.
1.2 References to any section or clause are references the appropriate section or paragraph in the Agreement. Headings are provided solely for ease of reference and shall not be considered in the construction or interpretation of the Agreement.
1.3 References to any statute, statutory provision or other enactment mean that statute, provision or enactment as it may be amended, extended, or replaced from time to time.
1.4 Words importing the singular include the plural, and vice versa. Words importing any gender include every gender. The words “include” or “including” are to be construed without limiting the generality of any preceding words. References to “writing” shall include by email.
1.5 These Terms govern all service orders, statements of work, or other transactions for the provision of services by Athos Commerce and supersede any other understanding, agreement, or terms included in any purchase order, acceptance, or vendor management portal.
1.6 In the event of a conflict, the terms of an Order take precedence over these Terms (but only for that Order), and referenced terms take precedence over the terms by which they are referenced.
2. Orders; Order Process
2.1 Order. The Order shall set forth the Services to be provided by Searshspring to Customer, the dates of the Order, the pricing and (optionally) payment terms, and any other commercial terms. The parties may enter into multiple Orders, and each shall be subject to these Terms. The terms in any Order shall only apply to that Order and not to any other Order or agreement between the parties.
2.2 Order Process. The submission by Customer to Athos Commerce of a completed and signed Order constitutes an offer by Customer to purchase the Services from Athos Commerce in accordance with the Agreement. The Order shall be deemed to be accepted by Athos Commerce only when Athos Commerce issues written acceptance of the Order to Customer or commences the provision of the Services pursuant to such Order, whichever is the earlier, whereupon a binding agreement between the parties on and subject to the terms of the Agreement shall be formed.
3. Services; Deliverables
3.1 Services. Athos Commerce will provide the Services described in an Order. Customer is licensed to use the Services on a worldwide (subject to applicable export laws and sanctions), non-exclusive, limited-term basis and on the sole condition that Customer complies with the purpose, specifications, and restrictions described in the Order and all terms of the Agreement. Customer’s license is revocable in accordance Section 5 (Term, Termination, and Suspension) and non-transferable except as part of an assignment of the Agreement as may be permitted hereunder.
3.2 Service Restrictions. Customer, in its use of the Services, must comply with Athos Commerce’s Acceptable Use Policy available at https://searchspring.com/legal/searchspring-acceptable-use-policy/ as it may be updated from time to time. Any breach of the Acceptable Use Policy will be deemed a material breach of the Agreement.
3.3 Support. Athos Commerce will provide access to online support materials and will respond to Customer’s requests for reasonable technical assistance via chat during its standard support hours, currently Monday through Friday, 10:00 a.m. to 6:00 p.m. CST/CDT, excluding federal public holidays in the United States and other Athos Commerce announced support holidays.
3.4 Deliverables. Any Deliverables will be provided in accordance with the specifications of the applicable Order and will be deemed to have been accepted upon delivery unless Customer notifies Athos Commerce of a good faith and valid reason for the withholding of its acceptance within 3 business days of its receipt of the Deliverables. Athos Commerce’s sole obligation (and Customer’s sole remedy) in relation to any non-conforming Deliverables is to correct or replace the Deliverables within a reasonable time frame, or to refund any fees paid for Deliverables that are not delivered or accepted in accordance with this Section.
3.5 Third-Party Services. Services may allow or enable Customer to use or integrate various third-party services. Athos Commerce does not endorse or recommend any third-party services and accepts no liability for their operation or compatibility with its own Services, even if it makes reasonable efforts to maintain such compatibility. Athos Commerce may discontinue any third-party integration in its sole discretion.
3.6 Free Services. Athos Commerce may offer certain Free Services from time to time. Free Services should only be used for evaluation purposes and are not considered “Services” under this Agreement. Athos Commerce has no obligation to support Free Services. Free Services are provided AS-IS, with all faults. Athos Commerce accepts no liability and provides no warranty or indemnification for any Free Services or in connection with Customer’s use of Free Services. Athos Commerce may discontinue Free Services at any time in its sole discretion.
4. Fees; Payment
4.1 Fees. Fees for the Services are set out in the applicable Order. Any discounts included in an Order apply for the initial term only. Athos Commerce may increase its fees at any time, but any increase will only apply to you upon renewal of an Order where we have provided at least 30 days’ prior notice of the increase.
4.2 Overages. For fees based on a usage metric, such as product count or session count, Customer must provide any information reasonably requested to correctly calculate the fees (e.g. Google Analytics data), and Customer may not use the Services in a way that undermines Athos Commerce’s ability to correctly calculate its fees. Athos Commerce may charge for use that exceeds the metric (and any buffer percentage allowed by the Order) at the overage rate stated in the Order, or may move the account to a service plan that corresponds to the higher use levels, at its option. Customer agrees that if, at any time during the Term, it exceeds the limits or restrictions described in an Order, Athos Commerce will be entitled to charge, and Customer shall pay, additional fees as set out in the Order or, if no fees are specified in the Order, Athos Commerce’s then-current pricing advertised on its web site. Athos Commerce’s waiver of overage fees for one or more billing periods is not a waiver for any subsequent billing periods.
4.3 Payment Terms. Invoicing and payment terms are set out in the Order or, if no invoicing or payment terms are included, Athos Commerce will charge Customer monthly in advance, and all payments must be made within 30 days of the invoice date. Except as otherwise provided in the Agreement, all fees are non-refundable. Fees must be paid in the currency listed in the Order. Payments made by credit card shall incur a 3% processing fee.
4.4 Taxes. All sums due to Athos Commerce are exclusive of any sales, use, value-add, or like taxes or duties which shall be paid by Customer at the rate and in the manner prescribed by law.
4.5 Fee Disputes. If Customer disputes an invoice or any part thereof, the parties will negotiate in good faith to resolve such dispute, provided that Customer must pay the undisputed portion of the invoice and cooperate with Athos Commerce’s reasonable requests for information related to the dispute.
4.6 Overdue Fees. If Customer fails to pay all undisputed fees to Athos Commerce when due, Athos Commerce may, without prejudice to any other right or remedy that it may have: (a) charge interest at the lesser of 1.2% per month or the highest amount permitted by applicable law, accruing on a daily basis and being compounded quarterly until payment is made; and (b) require payment by Customer to Athos Commerce of all reasonable costs and expenses incurred by Athos Commerce in connection with recovering such Charges. If Athos Commerce takes legal action to collect an overdue amount, Customer must pay Athos Commerce’s reasonable costs of collection, such as attorney fees and court costs. If Athos Commerce suspends Customer’s account for late payment, Customer may be required to pay a reinstatement fee.
5. Term, Termination, and Suspension
5.1 Term. The initial term of each Order begins on Order Start Date and continues for the period stated in the Order.
5.2 Auto-Renewal. On expiration of the initial term, the Order renews for consecutive renewal terms of the 12 months each unless either Customer or Athos Commerce provides notice of non-renewal at least 30 days prior to such renewal date.
5.3 Termination. Either party may terminate an Order on 30 days’ written notice if the other party is in material violation of any term of the Agreement and such violation is uncurable or remains uncured during the 30-day notice period. The Agreement may be terminated at any time and for any reason provided there are no active Orders.
5.4 Suspension. Athos Commerce may suspend the Services if Customer is in material breach of the Agreement, overdue any undisputed fees, or if Customer’s ongoing access to the Services creates a material security vulnerability. Athos Commerce will give Customer at least 2 business days’ advance notice of the suspension, unless the suspension is made under emergency circumstances. Athos Commerce will reinstate Customer’s access to the Services when the grounds for suspension are cured unless the Agreement has otherwise been terminated. Athos Commerce will not be liable in any way for Interruptions to the Services, or loss of Customer Content processed by the Services, which results from any suspension of the Services or termination of the Agreement.
5.5 Survival. The following sections survive any expiration or termination of the Agreement: “Fees; Payment,” “Intellectual Property,” “Confidentiality,” “Indemnification,” “Limitations of Liability,” “General Terms,” and any other terms that by their nature are intended to survive expiration or termination.
6. Intellectual Property
6.1 Generally. The parties hereby acknowledge and agree that this Agreement shall not operate to assign or transfer any Intellectual Property between them. Any Intellectual Property (other than Deliverables) created by a party during the term of the Agreement shall remain the property of that party. The Intellectual Property rights granted herein are for a limited duration and scope as described in these Terms and the applicable Order, and no rights in Intellectual Property may arise by implication or estoppel. As between Customer and Athos Commerce, Customer owns, retains ownership of, and reserves all rights in, Customer Content and Customer’s Confidential Information; and Athos Commerce owns, retains ownership of, and reserves all rights in, the Services, Free Services, Security Materials, Metadata, and Athos Commerce’s Confidential Information.
6.2 Customer Content. Athos Commerce may only use Customer Content for the purpose of providing the Services and performing its obligations and exercising its rights under the Agreement.
6.3 Services. Athos Commerce retains all rights and ownership in and to its products and services, strategies, and business model; derivative works of its products and services; and all feedback, opinions, or suggestions related to its products and services, strategies, and business model.
6.4 Deliverables. Deliverables remain the property of Athos Commerce. Subject to Customer’s full payment of fees for the Deliverables and compliance with the terms herein, Athos Commerce grants Customer a worldwide, limited, non-transferable, fully paid-up license to use the Deliverables for its internal business purposes. Customer may not sell, sub-license, or otherwise transfer the Deliverables to any third party.
6.5 Metadata. Athos Commerce may collect and process Metadata to provide its services, improve its products, and manage its business generally, provided that: (i) if the data used to create the Metadata includes any personal data, Athos Commerce either excludes this data from the data set, or de-identifies the data in accordance with applicable regulatory standards, and (ii) Athos Commerce removes from the data set any information that identifies Customer.
7. Confidentiality; Security
7.1 Confidentiality. Recipient agrees not to use or disclose the discloser’s Confidential Information except to provide or use the Services, as applicable, or to exercise legal rights or obligations in connection with the Agreement. Recipient shall use reasonable care to protect Discloser’s Confidential Information from unauthorized use and disclosure. Recipient shall return or destroy the discloser’s Confidential Information on termination of the Agreement, except as necessary for reasonable and customary business record-keeping purposes. Recipient is responsible for a breach of this Section by any person to whom it has disclosed the Discloser’s Confidential Information to the same extent as for its own breach of this Section. Notwithstanding the foregoing, Recipient may disclose Confidential Information in response to a subpoena, request from law enforcement, or as otherwise required by law, provided that it makes reasonable efforts to notify Discloser prior to such disclosure and cooperate with Discloser’s reasonable attempts to limit it.
7.2 Security. Athos Commerce maintains appropriate technical and operational measures to protect its business operations, Customer Content, Customer Confidential Information, and any regulated personal data that may be processed pursuant to the Agreement. On request, Athos Commerce will make the Security Materials available to Customer. Security Materials are Athos Commerce’s sensitive Confidential Information and may be shared only with Customer’s personnel and professional advisors and consultants on a need-to-know basis. Customer is responsible for determining if Athos Commerce’s security safeguards meet any regulatory requirements applicable to Customer and otherwise meet Customer’s business and security requirements and acknowledges that the measures described in the Security Materials are commercially reasonable for such purposes. Athos Commerce is not responsible for any harm or damage resulting from a security incident except to the extent the security incident resulted from Athos Commerce’s material breach of this Agreement or the Security Materials
8. Athos Commerce Warranties; Disclaimers
8.1 Athos Commerce Warranty. Athos Commerce represents and warrants that, as of the effective date of each Order and on an ongoing basis: (a) the Services shall, under normal operating conditions, substantially conform to the functionality described in the Order; (b) it will provide support in a professional and workmanlike manner, with reasonable skill and care; and (c) it will at comply with all applicable laws and regulations with respect to its activities under the Agreement. Athos Commerce will use commercially reasonable efforts to make the Services available 24 x 7 x 365, excluding downtime related to scheduled maintenance or emergencies.
8.2 Remedy. If any of the warranties in clause 8.1 is breached, Customer must notify Athos Commerce as soon as possible. Customer must give Athos Commerce a reasonable time to fix the problem, including (in Athos Commerce’s discretion) by making available a corrected version of the Service or a reasonable way to work around the problem that is not materially detrimental to Customer and/or by re-performing any relevant services. This will be done without any additional charge to Customer. If Athos Commerce is able to do this within a reasonable time, this shall be Customer’s sole and exclusive remedy in relation to such breach and Athos Commerce will have no other obligation or liability in relation to such breach.
8.3 Delayed or Prevented Performance. If Athos Commerce’s performance of its obligations under the Agreement is prevented or delayed by: (i) any act or omission of Customer, its agents, sub-contractors or employees; and/or (ii) a breach by Customer of any of its obligations under the Agreement, Athos Commerce shall not be liable for any Losses sustained or incurred by Customer arising directly or indirectly from such prevention or delay. For the avoidance of doubt, in such circumstances Customer shall pay in full for any Services which cannot be performed/provided by Athos Commerce.
8.4 Warranty Disclaimer. Except as otherwise provided herein, the Services are provided AS-IS, with all faults, and all warranties, express or implied, are disclaimed to the maximum extent permitted by law. Specifically, Athos Commerce disclaims any implied warranty of merchantability, fitness for a particular purpose, and non-infringement, and any representation or warranty that may arise through a course of dealing. Customer acknowledges that use of the Services may not be uninterrupted, error-free, or completely secure. The Services are not designed for the processing of sensitive or special categories of personal data or data that is subject to special regulatory schemes, such as protected health information under HIPAA. As between Athos Commerce and Customer, Customer is responsible for risks that may arise if its website users enter this kind of data into a search field or take other actions that create or submit data of this type for processing by Athos Commerce. Customer has not relied on any representation or warranty other than those expressly stated in the Agreement.
9. Customer Obligations
9.1 Customer Warranty. Customer represents and warrants that, as of the effective date of each Order and on an ongoing basis: (i) Customer Content and Customer’s use of the Services are not subject to any special regulatory scheme, such as those applicable to personal health information (e.g. the Health Insurance Portability and Accountability Act or HIPAA) or consumer lending or insurance (e.g. Graham-Leach-Bliley); (ii) it shall provide reasonable cooperation and information to Athos Commerce as required to receive the Services; and (iii) it will at comply with all applicable laws and regulations with respect to its activities under the Agreement. Customer shall at all times use the Services in accordance with the Acceptable Use Policy.
9.2 Authorized Users. Customer may create Authorized Users for purposes of using the Services, provided that such Authorized Users may only use the Services for Customer’s own benefit in full compliance with all terms and restrictions set out in the Agreement, and that Customer remains responsible for its Authorized Users. Customer authorizes Athos Commerce to act on the instructions of a user who authenticates using the account credentials Customer or Customer’s Authorized Users have established. Customer must use reasonable security precautions in connection with Customer’s use of the Services, such as requiring Customer’s Authorized Users to establish reasonably secure passwords and using commercially reasonable efforts to protect Customer’s systems and data from malware. Customer is responsible for the use of the Services by any person who gains access to the Services as a result of Customer’s failure to use reasonable security precautions, or who uses credentials established by Customer or its Authorized Users.
9.3 Backups. Customer is advised to maintain an independent backup of all Customer Content at a reasonably secure location.
10. Indemnification
10.1 By Athos Commerce. Athos Commerce will indemnify and defend Customer and its Authorized Users from and against any losses, damages, liabilities, judgments, awards, settlements, penalties, interest, fines, costs and fees, or any other expenses of whatever kind, including reasonable attorneys’ fees, which arise from a third-party claim, demand, suit, action, investigation, or allegation that the Services, as provided by Athos Commerce and used in accordance with the Agreement, infringe the Intellectual Property rights of a third party. If the Services become, or seem likely to become, the subject of any such claim, Athos Commerce may: (a) procure a license for Customer’s continued use of the Services; (b) modify or replace all or any part of the Services without charge to customer or any material loss of functionality; or (c) if neither of the foregoing is reasonably practicable, to terminate the Services and provide Customer with a refund of any fees paid for the terminated Services beyond the date of their termination.
10.2 By Customer. Customer will indemnify and defend Athos Commerce and its officers, employees, and agents from and against any losses, damages, liabilities, judgments, awards, settlements, penalties, interest, fines, costs and fees, or any other expenses of whatever kind, including reasonable attorneys’ fees, which arise from a third-party claim, demand, suit, action, investigation, or allegation that the Customer Content, as provided by Customer and used in accordance with the Agreement, infringe the Intellectual Property rights of a third party.
10.3 Indemnification Process. The indemnitor’s obligations under this Section 10 are conditioned on the indemnitee: (i) providing prompt written notice of any applicable claim, provided that the indemnitor shall only be excused of its obligations to the extent that a delay in notice prejudiced the indemnitor’s ability to defend the claim; (ii) giving the indemnitor full control over defense of the claim; and (iii) providing reasonable cooperation to the indemnitor at the latter’s expense. The indemnitor may not settle any claim without the indemnitee’s prior consent, not to be unreasonably delayed or withheld. An indemnified party may participate in the defense of a claim with counsel of its choice at its option and expense.
11. Limitations of Liability
11.1 Limitations. Neither party shall be liable (under any contract, indemnity, statutory obligation, or other legal theory of any kind) for: (i) indirect, incidental, consequential, or punitive damages; (ii) cover, lost profits, loss of business, loss of revenue, loss or corruption of data; (iii) any defect, delay, or failure of a third-party product or service; (iv) loss or damages proximately caused by the other party or for which the other party owes it a duty of indemnification; or (v) except for fees owed to Athos Commerce for the Services, any aggregate amount in excess of the fees paid or payable by Customer in the 12 month period during which the liability accrued. Notwithstanding the foregoing, nothing in this Agreement excludes or limits a party’s liability for fraud, gross negligence, willful misconduct, or any other liability which cannot be limited or excluded by law.
12. General Terms
12.1 Assignment. Neither party may assign the Agreement in whole or in part, whether by operation of law or otherwise, without the other party’s prior written consent; provided, however, either party may assign this Agreement in its entirety (including all Orders), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
12.2 Relationship of the Parties. The parties are independent contractors. Neither party is the agent of the other, and neither party is authorized to make any representations, contract, or commitment on behalf of the other. The use of the words “partner” or “partnership” in this Agreement or otherwise refers only to a business relationship, and does not create or reflect any legal partnership, joint venture, or other fiduciary or other special relationship between the persons described as partners. The parties do not agree to any exclusivity in regards to the subject matter of this Agreement and each party is free to contract with third parties, including competitors of the other party, for transactions of the type covered by this Agreement in any market, worldwide. There are no third-party beneficiaries under the Agreement.
12.3 Publicity. Athos Commerce may identify Customer in its marketing and sales materials and include Customer’s name and logo in an appropriate area of its website and marketing materials, provided that it does not state or imply that Customer endorse the Athos Commerce Services. Athos Commerce will use and display Customer’s name and logo in accordance with Customer’s trademark usage guidelines communicated to Athos Commerce in writing. Any goodwill accruing from Athos Commerce’s use of Customer’s name or logo shall accrue to Customer.
12.4 Force Majeure. Except for Customer’s payment obligations, neither party is in violation of the Agreement if a delay or failure to perform is due to a Force Majeure Event.
12.5 Notice. Any legal notices are deemed given, received and effective as of the time transmitted by electronic mail, or if that time does not fall on a business day, as of the beginning of the first business day following the time transmitted. Notices must be given in the English language. For Athos Commerce, all legal notices must be sent via first class United States mail to Athos Commerce’s physical address appearing on its website on the day the notice is transmitted, with a copy sent by electronic mail to legal@searchspring.com. For Customer, all legal notices must be sent via first class United States mail to Customer’s physical notice address, or if Customer’s physical address is outside of the United States, via a reputable and established international priority mail service on the date the notice is transmitted electronically. A party may change its address for notice by giving notice in the manner stated in this Section.
12.6 Governing Law. The Agreement is governed by the laws of the State of Texas, and the United States of America, as applicable, without giving effect to any conflicts of law principles that would require the application of the law of a different jurisdiction.
12.7 Dispute Resolution. Except for a request for temporary injunctive or other equitable relief, each party agrees that it shall not file a lawsuit or other legal action in connection with this Agreement unless it has first given the other party written notice of the dispute, and attempted to resolve the dispute through good faith negotiation. At the request of either party, the dispute will be submitted for non-binding mediation conducted by a mutually acceptable mediator in Bexar County, Texas. The mediator will be chosen by mutual agreement of the parties within 21 days after written notice by either party demanding mediation. Neither party shall unreasonably withhold or delay consent to the selection of a mediator. The parties will share equally the costs of the mediation, exclusive of any fees paid by a party to its internal or external legal advisors, accountants and experts in connection with the dispute. The use of any mediation procedures will not be construed under the doctrines of laches, waiver or estoppel to affect adversely the rights of either party. If the dispute is not resolved through negotiation or mediation within 45 days of the date of the initial demand for mediation, the parties are free to file a lawsuit or other action. Each party agrees that it shall bring any lawsuit or other legal action related to this Agreement in the State or Federal courts sitting in Bexar County, Texas. Neither party shall dispute the personal jurisdiction of such courts, and each party waives any objection it may have as to the venue of such court. To the extent permitted by applicable law, each party waives the right to a trial by jury in respect of any litigation arising out of this Agreement and the parties’ activities regarding this Agreement.
12.8 Updates. No right or remedy arising regarding this Agreement shall be waived by a course of dealing between the parties, or a party’s delay in exercising the right or remedy. A party may waive a right or remedy only by signing a written document that expressly identifies the right or remedy waived. Unless expressly stated in the waiver, a waiver of any right or remedy on one occasion will not be deemed a waiver of that right or remedy on any other occasion, or a waiver of any other right or remedy. Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Athos Commerce regarding future functionality or features. Customer acknowledges that Athos Commerce may modify or suspend any of its Services offerings at any time. If a modification or suspension materially and adversely affects Customer’s use of the Services, Customer may terminate the Agreement by giving written notice of the change no later than 30 days following the date of the change and receive a refund of any prepaid fees for unused services as Customer’s sole and exclusive remedy. Athos Commerce may amend these Services Terms at any time in its sole discretion by providing Customer with at least 30 days’ notice. If the amendment materially and adversely impacts Customer’s use of the Services, Customer may terminate the Agreement by giving written notice no later than 30 days following the date the amendment is published and receive a refund of prepaid fees for unused Services as Customer’s sole and exclusive remedy.
12.9 Integration. This Agreement is the entire agreement between Customer and Athos Commerce regarding Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of these Service Terms or an Order will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any preprinted term or condition stated in any business form is void. Customer’s use of the Services, both during any free use period and Customer’s paid term, is subject to all of the terms, conditions, and restrictions stated in the Agreement and any restrictions stated on a page on the Athos Commerce website that is part of Customer’s Order.