Terms of Service

By signing up for a Nautical Account (as defined below), by using any Nautical Services (as defined below), or by executing any Order Forms, you agree to be bound by the following terms and conditions (the “Terms of Service”).Before signing up for a Nautical Account or using any Nautical Services, you must read, agree to, and accept all the terms and conditions contained in or expressly referenced by these Terms of Service. This includes our Acceptable Use Policy (“AUP”) (https://www.nauticalcommerce.com/legal/aup), Privacy Policy (https://www.nauticalcommerce.com/legal/privacy), API License and Terms of Use (“API Terms”) (https://www.nauticalcommerce.com/legal/api-terms), Support Policy (https://www.nauticalcommerce.com/legal/support-policy) and Data Processing Addendum (“DPA”) (https://www.nauticalcommerce.com/legal/dpa).

Definitions

“Account” shall mean the customer account created with Nautical Commerce, which includes the customer's profile, access credentials, and settings. The Account allows the customer to access and utilize the Nautical Commerce Services, manage their store, interact with other users, and utilize the various features and functionalities provided by the platform.

“App Store” shall mean the online marketplace provided by Nautical where Merchants or Sellers can browse, purchase, and integrate Third-Party Apps and Third Party Services with the Services. The App Store includes a variety of apps and services designed to enhance and extend the functionality of the Services.

“Buyer” shall mean the marketplace customers who purchase products or services on the marketplace that uses the Services.

“Dashboard” shall mean the administrative interface provided by Nautical, also referred to as the Admin Portal, which is accessed by the operating users of Sellers or Merchants. The Dashboard includes all administrative tools, settings, and functionalities necessary for managing and operating the marketplace on the Nautical platform. This interface is distinct from the APIs and Storefront, and constitutes the primary Services offered by Nautical for marketplace administration and management purposes.

“Documentation” refers to the supporting documentation to the Terms of Service and the Order Form, including, but not limited to, the Acceptable Use Policy, the Data Processing Addendum, and the API License and Terms.

“End User” shall mean any user of the Services, including but not limited to seller users and merchant users.

“Merchant”, “Customer” (also referred to as Marketplace Operators and Marketplace Admins) shall mean the individuals, affiliates or entities that manage and operate the Services.

“Platform Vendors”: shall mean the service and software providers selected by Nautical as part of its technology stack. These vendors are used to support and enhance the functionality, security, and performance of the Nautical Commerce platform and are distinct from Third Party Services or Third Party Apps chosen by You.

“Sellers” shall mean the companies or individuals selling products or services through the Merchant’s marketplace that uses the Nautical Services.

“Services” (also referred to as the Nautical Platform or Software) shall mean the services provided by Nautical as described below in the section titled “Scope of Services”. The Scope of Services details the specific services and functionalities covered under these Terms of Service.

“Third Party Apps”: shall mean any software vendors or applications that you or your Sellers choose to use and engage, including, but not limited to, any services that were integrated into the App Store, referred to, or recommended by Nautical Commerce.

“Third Party Services” shall mean any services that you or your Sellers choose to use and engage, including, but not limited to, any services that were referred or recommended by Nautical Commerce.

“We”, “Us”, “Our”, “Nautical” shall mean the contracting party and platform services provider Nautical Commerce, Inc.

“You”, “Your” shall mean the individual End User of the Nautical services or the business entity utilizing the Nautical services that you are an End User of, and any of its affiliates.

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1. Scope of Services

1.1 Nautical provides a marketplace commerce platform designed to support both merchants and sellers through a range of features and tools. These features collectively constitute the "Services" and include, but are not limited to, the following:

1. Online Store Building and Customization: Tools for creating and customizing online stores to reflect merchants' brand and business requirements.
2. Multi-vendor Product and Inventory Management: Centralized management of merchandising, product listings, stock levels, and inventory across multiple vendors.
3. Seller Administration and Management: Administrative tools for managing seller accounts, including user roles and seller details.
4. Seller Portal: A portal for sellers to manage their products, orders, inventory, and other business activities.
5. Multi-Vendor Checkout: Functionality to support a checkout process for products from multiple vendors in a single checkout.
6. Payment Processing: Solutions for handling Buyer payments across various payment methods.
7. Multi-Vendor Order Fulfillment and Management: Tools to manage the order fulfillment process, from order receipt to payout, for multiple vendors.
8. Shipping Management: Integration with shipping carriers to handle logistics, shipping options, and tracking.
9. Payout Management: Tools to manage and execute payouts to sellers based on sales and other criteria.
10. Business Operations Management: Solutions to oversee day-to-day business operations, including administrative tasks and vendor coordination.
11. Buyer Engagement: Features to engage with existing and potential buyers, including communication tools and buyer relationship management (CRM).
12. Reporting: Reporting tools to generate insights and analytics on sales, inventory, and other key performance indicators.
13. App Store: Access to a marketplace of third-party applications and services designed to enhance and extend the functionality of the Nautical Platform through the App Store.

1.2 These Services are supported by our API, which provides additional integration and customization capabilities (refer to the API Terms and License for details).

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2. Account Terms

2.1 The term of these Terms of Service will begin on the date of your completed registration or Order Form for use of a Service and continue until terminated by us or by you, as provided below (the “Term”).

2.2 To access and use the Services, you must register for, or be given, a Nautical account (“Account”). During the registration process, you are required to provide your full legal name, business address, phone number, a valid email address, and any other required information. Nautical reserves the right to reject your application for an Account or to cancel an existing Account at our sole discretion, for any reason.

2.3 By creating a Nautical Account we grant you a nonexclusive, limited, commercial, nonsublicensable, nontransferable right and license to internally access and use the Services only as provided herein and the Documentation.

2.4 The account subscription shall automatically renew for additional successive periods of equal duration to the subscription Term (the “Term”) unless terminated.

2.5 If you are a sole proprietor aged 13 or older but not old enough to enter into a contract (usually 18), your parent or legal guardian must act as your Representative. If you are a legal entity owned by someone aged 13 or older but not old enough to contract, your Representative must have board or officer consent. The parent, guardian, board, or officer is responsible and legally bound to this Agreement. You must not use the Services if you are under 13 years of age.

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3. Your Responsibilities

3.1 Any contract of sale made through the Services is directly between you and your customer. Nautical Commerce is not a party to this contract. You are the Merchant of Record for all items you sell through the Services. This means you are responsible for the sale and any related legal obligations.

3.2 You are solely responsible for the creation, maintenance, and operation of your marketplace store on our platform. You must ensure that all materials, goods, and services listed on your store are accurate, true, and complete. This includes product descriptions, prices, fees, taxes, and compliance with all applicable laws and regulations.

3.3 You are responsible for all aspects of transactions between you and your customers, including:

1. Authorization of Charges: Ensuring that the customer’s payment is authorized.
2. Refunds and Returns: Handling any refunds and returns as per your store policy.
3. Fulfillment: Ensuring orders are fulfilled correctly and timely.
4. Customer Service: Providing customer service for any issues arising from the transaction.
5. Fraudulent Transactions: Managing any fraudulent transactions.
6. Legal Disclosures and Compliance: Making required legal disclosures and ensuring regulatory compliance.
7. Violation of Laws: Addressing any alleged or actual violations of applicable laws, including consumer protection laws.
8. You represent and warrant that your store, your materials, and the goods and services you sell through the Services (i) Will be true, accurate, and complete (ii) Will not violate any applicable laws, regulations, or third-party rights.
9. For the avoidance of doubt, Nautical Commerce will not be the seller or merchant of record. We will have no responsibility for your store or the items sold to customers through the Services.
10. You are solely responsible for ensuring that the goods or services you sell through the Services comply with all applicable laws and regulations. This includes (i) Accurate descriptions and pricing (ii) Calculating and applying taxes and fees correctly (iii) Disclosing any defects (iv) Making all required legal disclosures (v) Ensuring regulatory compliance (vi) Managing offers or promotional content.
11. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use.
12. You are responsible for keeping your password secure. Nautical Commerce cannot and will not be liable for any loss or damage resulting from your failure to maintain the security of your account and password. We may request additional security measures at any time and reserve the right to modify these requirements at our discretion.
13. You must (a) notify Nautical Commerce promptly upon becoming aware of any unauthorized use of any password or account of any of its End Users or Buyers (or any other breach of security of the Software or its infrastructure), and (b) notify Nautical Commerce promptly upon becoming aware of, and stop, any unauthorized copying, distribution or other misuse of any aspect of the Software by or through the accounts of any of its End Users or Buyers.

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4. Nautical Rights

4.1 From time to time, Nautical Commerce may provide updates, patches, enhancements, or fixes for the Services at no additional charge (“Updates”). These Updates will automatically become part of the Services and will be subject to these Terms of Service. Nautical Commerce reserves the right to determine the timing and content of any Updates and is not obligated to provide any such Updates. The Customer acknowledges that Nautical Commerce may make improvements and modifications to the Services at any time at its sole discretion.

4.2 Nautical does not pre-screen Materials and reserves the right to refuse or remove any Materials from the Services at our sole discretion. This includes situations where we determine that the goods or services you offer, or the Materials you upload or post, violate our AUP or these Terms of Service.

4.3 Nautical Commerce reserves the right to provide services to competitors and acknowledges that its employees and contractors may also be merchants on the platform, potentially competing with customers. However, all employees and contractors are strictly prohibited from using any Confidential Information obtained from customers as defined in section “Confidentiality”

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5. Fees

5.1 The Customer acknowledges and agrees that, in addition to the Platform Fee set out above, the Customer shall also be responsible for the following fees, as applicable, which are determined by your subscription contract (Together, these fees are referred to as the “Fees.”):

1. Platform Fee: The fee for accessing and using the Nautical platform.
2. Transaction Fee: Fees relating to the Net Captured Payments processed through the Nautical Software meaning total payments after discounts, canceled orders, sales taxes, as applicable. Includes shipping costs.
3. Support Fees: Fees associated with customer support services provided by Nautical, where applicable.
4. Additional Fees: Fees for the purchase or use of additional products or services, such as apps, shipping, themes, advertising, extended APIs or other services.

5.2 The Transaction Fee will be calculated at the end of the billing period during the Term, on the second day of the following period. The Net Captured Payments amount is rounded up to the nearest dollar.

5.3 If your Transaction Fee for a given billing period is negative due to refunds, chargebacks, or any other reason, the Transaction Fee for that period will be considered zero. You will not receive a refund or credit, and negative amounts will not carry over to future periods.

5.4 Nautical reserves the right to change the fees for the Services from time to time. In the event of any fee changes, we will provide you with a 30-day advance notice. This notice will be given through one or more of the following methods:

1. Email: An email will be sent to the Primary Email Account associated with your account.
2. Administrative Console: A notice will be provided through the Nautical administrative console.
3. Other Means: Similar means of communication may also be used to notify you of fee changes.

5.5 Any changes to the fees will take effect at the end of your current subscription term. For customers on month-to-month subscriptions, the changes will apply starting with the next monthly billing cycle. Nautical Commerce may increase its Platform Fee no more frequently than once in every 12-month period.

5.6 Nautical shall not be liable to you or any third party for any modifications, price changes, suspension, or discontinuance of the Services (or any part thereof).

5.7 You will be charged an App Activation Fee for each unique app that requires payment (“Premium App”) that is activated or remains active within a given billing period. The App Activation Fee is calculated and charged at the end of each billing period.

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6. Payment of Fees

6.1 Customer must keep a valid payment method on file with Nautical Commerce. All Fees will be automatically charged to the payment method on file (“Authorized Payment Method”), and will continue to charge the Authorized Payment Method for applicable Fees until the Services are terminated, and any and all outstanding Fees have been paid in full.

6.2 Subscription Fees are paid in advance and will be billed in 30-day intervals (each such date, a “Billing Date”). 

6.3 Transaction Fees, Support Fees, Sellers Fees and Additional Fees will be charged periodically at Nautical Commerce’s discretion. On each Billing Date, you will be charged for all outstanding Fees that have not yet been charged. These Fees will appear on an invoice sent to the Merchant via the Primary Email Address provided. Users have approximately two weeks to raise and resolve any billing issues related to Subscription Fees.

6.4 If we are unable to process payment using an Authorized Payment Method, we may attempt to process the payment again using any Authorized Payment Method. If we cannot successfully process the payment within 28 days of the initial attempt, we may suspend and revoke access to your Account and the Services. Your Account will be reactivated once you have paid any outstanding Fees, plus the Fees applicable to your next billing cycle. During any suspension period, you may not be able to access your Account or your storefront. If the outstanding Fees remain unpaid for 60 days following the suspension date, Nautical Commerce reserves the right to terminate your Account.

6.5 Unless otherwise indicated, all Fees and other charges are in U.S. dollars, and all payments will be in U.S. currency.

6.6 All Fees are exclusive of applicable federal, state, local, or other governmental sales, goods, and services taxes, fees, or charges now in force or enacted in the future (“Taxes”). You are responsible for all applicable Taxes arising from or related to your subscription to or purchase of Nautical Commerce’s products and services. If Nautical Commerce charges these Taxes, they are calculated based on the billing address you provide. These amounts are in addition to the Fees for the products and services and will be billed to your Authorized Payment Method.

6.7 You are solely responsible for determining, collecting, withholding, reporting, and remitting applicable taxes, duties, fees, surcharges, and additional charges that arise from or as a result of any sale on your Nautical Store or your use of the Services. Any contract of sale made through the Services is directly between you and the customer.

6.8 Your subscription to the Service and commitment to pay any fees are not contingent on the delivery of any future functionality or features.

6.9 Your commitment is not based on any oral or written comments regarding future functionality or features.

6.10 If the payment method fails, past due invoices are subject to interest on any outstanding balance at the lesser of 1.5% per month or the maximum amount permitted by law.

6.11 Nautical Commerce will be entitled to recover its reasonable legal fees and other expenses (including expert witness fees and expenses on appeal) related to any efforts made by Nautical Commerce to collect overdue amounts.

6.12 Nautical Commerce may suspend or limit Customer’s access to or use of the Service if Customer’s account is more than thirty (30) days past due (“Late Payment”).

6.13 Nautical Commerce does not provide refunds, and Fees are not subject to set-off.

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7. Privacy

7.1 By using our Service, you acknowledge and agree that Nautical Commerce’s collection, use, and disclosure of this personal information are governed by our Privacy Policy.

7.2 To the extent that Nautical Commerce processes personal information of your Buyers as a “data processor” or “service provider” under certain data privacy or protection laws, including the EU or UK General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA), Nautical Commerce’s collection and use of personal information are also subject to our Data Processing Addendum.

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8. Confidentiality

8.1 “Confidential Information” refers to any information related to a party’s business that is not publicly known. This includes, but is not limited to, business details, technical processes, formulas, software, customer lists, prospective customer lists, names, addresses, and other information about customers and potential customers, product designs, sales data, cost information (including processing fees), pricing lists, unpublished financial details, business plans, marketing data, and other proprietary information, regardless of whether it is labeled as confidential or proprietary. Nautical Commerce’s Confidential Information encompasses all non-public information you receive related to us or our Services, including details about our security programs and practices.

8.2 Each party agrees to use the other party’s Confidential Information solely as necessary to fulfill its obligations under these Terms of Service and in accordance with any other obligations outlined in these Terms, including this Section. Both parties agree to take all reasonable measures, equivalent to those taken to protect their own proprietary information, to prevent the unauthorized duplication, disclosure, or use of any Confidential Information. This includes sharing such information only with employees, agents, and subcontractors who need access to fulfill their obligations hereunder and who are bound by confidentiality obligations at least as stringent as those contained herein. Disclosure is also permitted as required by law, regulation, or court order, provided that the receiving party gives prompt written notice to the disclosing party (if legally permitted) and makes commercially reasonable efforts to ensure the information receives confidential treatment.

8.3 Confidential Information does not include information that the receiving party can demonstrate: (A) was already in the public domain or known by the receiving party at the time of disclosure, (B) is independently developed by the receiving party without reference to or use of the disclosing party’s Confidential Information, or (C) is lawfully obtained by the receiving party from a third party without violating any confidentiality obligations.

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9. Reviews

9.4 Any reviews of Third Party Services or Third Party Providers that you submit must be accurate to the best of your knowledge. Reviews must not be illegal, obscene, threatening, defamatory, invasive of privacy, infringing on intellectual property rights, or otherwise injurious to third parties or objectionable. Nautical Commerce reserves the right (but not the obligation) to remove or edit reviews regarding Third Party Services or Third Party Apps, but does not regularly inspect posted reviews.

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10. Intellectual Property

10.1 Nautical Commerce retains all rights, title, and interest in and to the Services, including all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Nautical Commerce for the purposes of these Terms. This includes any copies and derivative works. Any software distributed or provided to the Customer is considered part of the “Services” and is subject to all terms and conditions of these Terms of Service.

10.2 Any feedback you provide, including suggestions, ideas, or reviews, will not be confidential or entitled to compensation. By submitting feedback, you waive any rights to it, allowing us to use and modify it as we see fit, without needing further permission from you or any third party.

10.3 All feedback is provided "as is" without any warranty. By submitting feedback, you grant Nautical Commerce a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use your feedback for any purpose. This does not affect our right to develop, acquire, license, market, promote, or distribute products or services that may compete with yours.

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11. Restrictions

11.1 Except as expressly set forth in the Terms of Service, Customer shall not (and shall not permit any third party, including any End User to), directly or indirectly: 

1. Reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); 
2. Modify, translate, or create derivative works based on the Service; 
3. Copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; 
4. Remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; 
5. Use the Service to build an application or product that is competitive with any Nautical Commerce product or service; 
6. Interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or 
7. Bypass any measures Nautical Commerce may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). 

11.2 Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to: 

1. Its End User use of the Service, and 
2. Its Buyers use of the Service, and
3. Uploading Customer Data (as defined in the Data Processing Addendum) onto the Service.

11.3 Customer shall 

1. Use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and 
2. Shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights. 

11.4 Notwithstanding the foregoing, or any statement to the contrary contained herein, portions of the Software may utilize hardware, software, and/or modules provided by a third party other than Nautical Commerce, and such hardware, software, and/or modules may be subject to licenses (“Third-Party Licenses”) that govern their use and/or use of the Software.

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12. Indemnification and Limitation of Liability

12.1 You expressly understand and agree that, to the extent permitted by applicable laws, Nautical Commerce and its suppliers will not be liable for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data, or other intangible losses, arising out of or relating to the use of or inability to use the Service or these Terms of Service (however arising, including negligence).

12.2 In no event shall either party, nor its directors, employees, agents, partners, suppliers, or content providers, be liable under contract, tort, strict liability, negligence, or any other legal or equitable theory with respect to the subject matter of the Terms of Service for any lost profits, data loss, cost of procurement of substitute goods or services, or special, indirect, incidental, punitive, or consequential damages of any kind whatsoever, including but not limited to, bugs, viruses, trojan horses, or the like (regardless of the source of origination).

12.3 Furthermore, for any direct damages, the aggregate liability of either party shall not exceed the fees paid (or payable) by the customer to Nautical Commerce in the twelve (12) months prior to the event giving rise to a claim hereunder.

12.4 You agree to defend, indemnify, and hold harmless Nautical Commerce, its parent, subsidiaries, affiliates, partners, officers, directors, agents, employees, and suppliers (collectively, the “Indemnitees”) from any and all liabilities, claims, and expenses, including reasonable attorneys’ fees, arising from or related to any third-party claim due to or arising out of:

1. Your breach of these Terms of Service or any documents they incorporate by reference (including the Acceptable Use Policy).
2. Your violation of any law or the rights of a third party.
3. Any issues arising from transactions between you and your customers, including but not limited to refunds, fraudulent transactions, and alleged or actual violations of applicable laws (including Federal and State consumer protection laws).

12.5 Conditions for Indemnification:

1. Prompt Notice: Nautical Commerce will provide you with prompt written notice of any claim (your indemnification obligations are not relieved unless you are materially prejudiced by the delay in notification).
2. Control of Defense: You will have the option to assume sole control over the defense and settlement of any claim. However, Nautical Commerce may participate in the defense and settlement at its own expense.
3. Assistance: Nautical Commerce will provide you with reasonable information and assistance in connection with the defense and settlement of the claim, at your expense.

12.6 The foregoing obligations of Nautical Commerce do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent:

1. Not created or provided by Nautical Commerce (including without limitation any Customer Data),
2. Made in whole or in part in accordance to Customer specifications, 
3. Modified after delivery by Nautical Commerce,
4. Combined with other products, processes or materials not provided by Nautical Commerce (where the alleged Losses arise from or relate to such combination), 
5. Where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or
6. Customer’s use of the Service is not strictly in accordance herewith.

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13. Disclaimers

13.1 The use of the Services is at your sole risk. Service is provided "as is" and "as available" without any warranties of any kind, express or implied, including but not limited to:

1. Implied warranties of title, non-infringement, merchantability, and fitness for a particular purpose.
2. Any warranties implied by any course of performance, usage of trade, or course of dealing.

13.2 Nautical Commerce does not warrant that the Services will be uninterrupted, timely, secure, or error-free.

13.3 Nautical Commerce does not warrant that the results that may be obtained from the use of the Services will be accurate or reliable.

13.4 Nautical Commerce is not responsible or liable for any Platform Vendors, including uptime guarantees, outages, or failures.

13.5 Nautical Commerce does not control the transfer of information or Customer Data over third-party communications facilities or infrastructure.

13.6 The Services may be subject to limitations, delays, and other problems inherent in the use of the Internet or electronic communications.

13.7 Nautical Commerce is not responsible for delays, delivery failures, or other damage, loss, or liability resulting from such problems.

13.8 Nautical Commerce is not responsible for any of your tax obligations or liabilities related to the use of Nautical’s Services.

13.9 Nautical Commerce does not warrant that the quality of any products, services, information, or other materials purchased or obtained by you through the Services will meet your expectations, or that any errors in the Services will be corrected.

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14. Dispute Resolution

14.1 The Terms of Service may be available in languages other than English. To the extent of any inconsistencies or conflicts between these English Terms of Service and Terms of Service available in another language, the most current English version of the Terms of Service at will prevail. Any disputes arising out of these Terms of Service will be resolved in English unless otherwise determined by Nautical (acting in its sole discretion) or as required by applicable law.

14.2 In the event of a dispute under or relating to this Agreement, either party may call for escalation by Notice to the other.  Within 5 business days of such Notice, each Party will designate an executive with authority to make commitments that would resolve the dispute (each a “Dispute Representative”).  The Dispute Representatives will meet in person or electronically within 10 business days of their designation and will negotiate in good faith to resolve the dispute.  Except as necessary to prevent irreparable harm or preserve rights or remedies, neither Party will initiate arbitration or litigation until 10 business days after the Dispute Representatives meet.

14.3 Any dispute or controversy that arises under this Agreement and which has not been resolved by discussions between the Dispute Representatives shall be submitted to non-binding mediation.  Such mediation shall be initiated prior to such dispute or controversy being presented to a court of law or for arbitration, provided however that doing so does not jeopardize a Party’s ability to bring such suit in those courts or seek relief via arbitration.  And, if suit or arbitration is brought prior to submitting the dispute or controversy to mediation or is brought during such mediation, then the Parties shall participate in mediation while such suit or arbitration is pending.  Each Party shall make good faith efforts to participate in and to find a resolution via such mediation, but neither Party is obliged to actually find such a resolution via such mediation.

14.4 Any dispute or claim that cannot be resolved under the process set out above shall be finally settled by arbitration.  The governing law of the arbitration shall be the substantive laws of the State of New York, without regard to the conflicts-of-law provisions thereof, and the arbitration shall be administered in New York, New York, in the United States, under the Comprehensive Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services, Inc. (”JAMS”) and the Federal Rules of Evidence (notwithstanding JAMS Rule 22(d) or any other JAMS Rule to the contrary).  

14.5 Notwithstanding the foregoing, each party shall have the right to institute an action at any time in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator(s), provided that 

1. the party instituting the action shall seek an order to file the action under seal (or at a minimum to do so for any filings containing Confidential Information or trade secrets); and 
2. a permanent injunction and damages shall only be awarded by the arbitrator(s).   

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15. Additional Services

15.1 From time to time, Nautical Commerce may, at its sole discretion, invite you to try pre-release or beta features that are in development and not yet available to all users (“Beta Services”). These Beta Services are separate from the standard Services and may come with additional terms and conditions, which Nautical Commerce will provide prior to your use of the Beta Services. 

1. All Beta Services and related discussions and materials are considered confidential and are subject to the confidentiality provisions of this agreement. You agree not to make any public statements or disclose your participation in the Beta Services without Nautical Commerce’s prior written consent. 
2. Nautical Commerce makes no guarantees regarding the functionality of the Beta Services and may discontinue them at any time at its sole discretion. Nautical Commerce will not be liable for any harm or damage arising from or in connection with the Beta Services. 
3. The Beta Services may differ from the final version, and Nautical Commerce may choose to modify, release, or not release a final version at its sole discretion.

15.2 Nautical may from time to time recommend, provide you with access to, or enable third party software, applications (“Third Party Apps”), products, services or website links (collectively, “Third Party Services”) for your consideration or use, including via the App Store. Such Third Party Services are made available only as a convenience, and your purchase, access or use of any such Third Party Services is solely between you and the applicable third party services provider.

15.3 Subject to your plan and payment of all applicable fees, Nautical Commerce will provide support, maintenance, and uptime for each Service in accordance with the then-current standard Support Policy.

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16. Termination

16.1 You may cancel your Account and terminate the Terms of Service at any time by contacting Nautical Support (support@nauticalcommerce.com) and then following the specific instructions indicated to you in Nautical’s response.

16.2 Without limiting any other remedies, we may suspend or terminate your Account or the Terms of Service for any reason, without notice and at any time (unless otherwise required by law), including if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the use of the Services. Termination of the Terms of Service will be without prejudice to any rights or obligations which arose prior to the date of termination.

16.3 All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, confidentiality, indemnity, and limitations of liability.

16.4 On termination of the Services by either party for any reason:

1. Unless otherwise provided in the Terms of Service, you will not be entitled to any refunds of any Fees, pro rata or otherwise;
2. any outstanding balance owed to Nautical for your use of the Services through the effective date of such termination will immediately become due and payable in full

16.5 You agree and acknowledge that your data may be irretrievably deleted if your account is ninety (90) days or more delinquent.

16.6 You are responsible for exporting your data before terminating or canceling your Account

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17. General Provisions

17.1 Nautical Commerce reserves the right, at our sole discretion, to update or modify any part of the Terms of Service at any time. If we make changes that materially affect your use of the Services or your rights under the Terms of Service, we will provide reasonable advance notice by sending an email to the Primary Email Address, or through similar means. However, we may implement changes that materially affect your use of the Services or your rights under the Terms of Service immediately for legal, regulatory, fraud and abuse prevention, security reasons, or to restrict products or activities we consider unsafe, inappropriate, or offensive.

17.2 Unless otherwise specified in our notice, any changes to the Terms of Service will become effective immediately upon posting the updated terms at this location. Your continued use of the Services after receiving notice of such changes or after the updated terms are posted constitutes your acceptance of the changes and agreement to be bound by the amended Terms of Service. If you do not agree to the revised Terms of Service, you must discontinue using the Services.

17.3 The Terms of Service, along with any documents referenced within them, form the complete and exclusive agreement between you and Nautical Commerce, governing your use of the Services and your Account. This agreement supersedes any prior agreements or communications between you and Nautical Commerce, including but not limited to, any previous versions of these Terms of Service.

17.4 The failure of Nautical Commerce to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service, including all terms and conditions and other documents it incorporates by reference, is deemed unlawful or unenforceable by a court of competent jurisdiction, that provision will be modified and interpreted to best achieve the objectives of the original provision to the fullest extent permitted by law. The remaining provisions of these Terms of Service will continue to be in full force and effect.

17.5 All terms and conditions in these Terms of Service will apply to and benefit both parties, as well as their heirs, successors, permitted assigns, and legal representatives. Nautical Commerce may assign these Terms of Service without notifying you or obtaining your consent. However, you may not assign or transfer these Terms of Service, or any of your rights or responsibilities under them, to any third party without obtaining prior written consent from Nautical Commerce, which may be granted or denied at Nautical Commerce's sole discretion.

17.6 If any provision, or part of a provision, within these Terms of Service is found to be invalid, illegal, or unenforceable for any reason, this will not impact the validity, legality, or enforceability of the remaining provisions. The rest of the Terms of Service will remain fully effective and will be interpreted as if the invalid, illegal, or unenforceable provision, or part thereof, was never included in the Terms of Service.

17.7 The Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in New York, NY. All notices under this Terms of Service shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.

17.8 Except as otherwise provided herein, any provision of these Terms of Service may be amended or waived only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.

17.9 Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Nautical Commerce may utilize subcontractors in the performance of its obligations hereunder.

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18. DMCA Notice and Takedown Procedure

18.1 Nautical Commerce supports the protection of intellectual property and asks you to do the same. Nautical Commerce responds to all notices of alleged copyright infringement. If a complainant believes you are infringing their intellectual property rights, they can send a DMCA Notice to Nautical Commerce’s designated agent using the Nautical Commerce form. 

18.2 Upon receiving a DMCA Notice, Nautical Commerce may remove or disable access to the content claimed to be a copyright infringement. Once provided with a notice of takedown, you can reply with a counter notification using the Nautical Commerce form if you object to the complaint. The original complainant has 14 business days after Nautical Commerce receives a counter notification to seek a court order restraining you from engaging in the infringing activity, otherwise Nautical Commerce may restore the material.