Tough Commerce Inc.TOUGH COMMERCE PLATFORM AGREEMENT

In connection with the use of the Tough Commerce Platform (as defined below) you and/or your organization or corporation (“Supplier”, as further defined below or “you”, “your”) and Tough Commerce Inc. (“Tough Commerce”, “we”, “us”), hereby agree to the terms and conditions contained herein (collectively, the “Tough Commerce Platform Agreement”).

BY ACCEPTING THIS TOUGH COMMERCE PLATFORM AGREEMENT BY SIGNING THE APPLICABLE TOUGH COMMERCE PLATFORM SUBSCRIPTION FORM (AS DEFINED BELOW) WHICH REFERENCES THE TOUGH COMMERCE PLATFORM AGREEMENT, SUPPLIER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS, AND HAS THE AUTHORITY TO AGREE TO, AND IS CONFIRMING THAT IT IS AGREEING TO, COMPLY WITH AND BE BOUND BY, ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, TOGETHER WITH ANY TOUGH COMMERCE PLATFORM SUBSCRIPTION FORM AND INCLUDING TOUGH COMMERCE’S PRIVACY POLICY, ALL OF WHICH ARE INCORPORATED BY REFERENCE AND DEEMED TO BE PART OF THE ENTIRE TOUGH COMMERCE PLATFORM AGREEMENT ENTERED INTO BETWEEN TOUGH COMMERCE AND SUPPLIER. IF, AFTER READING THE TERMS OF SERVICE, SUPPLIER DOES NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, SUPPLIER SHALL NOT USE, OR ACCESS THE TOUGH COMMERCE PLATFORM.

IF YOU ARE AN AGENT OR EMPLOYEE OF THE SUPPLIER THEN YOU HEREBY REPRESENT AND WARRANT THAT: (I) THE INDIVIDUAL ACCEPTING THE TOUGH COMMERCE PLATFORM AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS TOUGH COMMERCE PLATFORM AGREEMENT ON SUPPLIER’S BEHALF AND TO BIND THE SUPPLIER, AND (II) THE SUPPLIER HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THE TOUGH COMMERCE PLATFORM AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.

  1. Definitions

    2. In the Tough Commerce Platform Agreement:
    1. "Account(s)" means one or more Supplier accounts for the Tough Commerce Platform to perform various functions (the “Admin Account(s)”) created by one or more Users on behalf of Supplier pursuant to Section 4.1 hereof for the purposes of using the Tough Commerce Platform, configuring supplier storefront and/or performing administrative tasks as required.
    2. “Tough Commerce Payment Service” means the third-party payment processing service subcontracted by Tough Commerce to process orders, securely store payment card information, and provide related services.
    3. “Tough Commerce Platform” or “Platform” means Tough Commerce’s proprietary hosted software-as-a-service offering comprised of all Tough Commerce applications or derivatives software created by Tough Commerce, including “widget storefront”, “web storefront”, “app storefront”, “admin or management portal”, or “driver mobile application” (collectively, the “Tough Commerce Storefront Applications”) which resides on a server operated by or on behalf of Tough Commerce and which will be remotely accessible over the Internet by Supplier and its Users, together with the Software and any ancillary services available in connection therewith, as may be updated from time to time by Tough Commerce in its sole discretion.
    4. “Tough Commerce Platform Subscription Form” means Tough Commerce’s form of ordering document specifying Supplier’s Subscription to the Tough Commerce Platform and provisioning of the Supplier Storefront that is entered into between Tough Commerce and Supplier pursuant to mutually agreed upon terms and conditions.
    5. “Brokete Privacy Policy” means Tough Commerce’s Privacy Policy located at https://brokrete.com/privacy.
    6. “Customer” means a direct customer of Supplier that has read and agreed to the terms and conditions of a Customer Agreement for use of the Supplier Storefront.
    7. “Customer Agreement” means the agreement or terms and conditions between Supplier and Customer for use of the Supplier Storefront.
    8. “Customer Data” means Customer data and Personal Information, as applicable, submitted by Customer in Customer’s use of the Supplier Storefront.
    9. “Data Protection Laws” means all laws and regulations, including laws and regulations of Canada and the United States (including the Personal Information Protection and Electronic Documents Act (Canada) and the Canadian Anti-Spam Legislation (CASL), applicable to the Processing of Personal Information under this Agreement.
    10. “Intellectual Property Rights” means any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing (i) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask works, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights, (v) all other intellectual and industrial property and proprietary rights (of every kind and nature throughout the universe and however designated), whether arising by operation of law, contract, license or otherwise, and (vi) all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force throughout the universe (including without limitation rights in any of the foregoing).
    11. “Party” or “Parties”shall mean Tough Commerce and Supplier, individually or collectively.
    12. “Personal Information” means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws.
    13. “Processing” means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
    14. “Products” means any construction materials and/or product or services offered by Supplier to Customer for purchase and delivery through use of the Supplier Storefront.
    15. “Service Level Agreement” means the level of service to be provided by Tough Commerce to Supplier and as described in Schedule B.
    16. “Specifications” means the specifications for the Supplier Storefront as set forth in the applicable Tough Commerce Platform Subscription Form, as such may be amended from time to time upon the mutual agreement of Tough Commerce and Supplier.
    17. “Software” means Tough Commerce’s proprietary software program in machine-readable object code format and other related software for such program(s).
    18. “Storefront” or “Supplier Storefront” means the Supplier-branded e-commerce product or marketplace (provided that the branding of the Storefront shall include “Powered by Tough Commerce™”) generated by using the Tough Commerce Platform and used by Supplier to showcase, display and sell Products and services directly to Customers.
    19. “Subscription” means the right granted by Tough Commerce to Supplier to access and use the Platform in accordance with this Agreement and the applicable Tough Commerce Platform Subscription Form, for the Term specified in the applicable Tough Commerce Platform Subscription Form.
    20. “Supplier Data” means Product information provided by Supplier to Tough Commerce as required for the Supplier Storefront.
    21. “Support Services” means the support and maintenance terms on which Tough Commerce provides technical support for the Tough Commerce Platform to Supplier as described in Schedule A.
    22. “Support” means the terms on which Tough Commerce provides Support Services to Supplier includes the Service Level Agreement.
    23. “Term” means the period of time that Supplier is authorized by Tough Commerce to access and use the Tough Commerce Platform as described in the applicable Tough Commerce Platform Subscription Form.
    24. “Transition Period” means a period of ninety (90) days commencing on the effective date of notice of termination from one party to the other party, or prior to any expiration of this Agreement.
    25. “User” means an authorized representative of Supplier that has been provided a username and password in order to use the Tough Commerce Platform.
  2. APPOINTMENT AND GRANT OF RIGHTS AND LICENSES
    1. Grant of Rights by Tough Commerce. Subject to the terms and conditions, including, without limitation, payment of the applicable Fees (as herein defined), Tough Commerce hereby grants to Supplier, and Supplier accepts, a non-exclusive, worldwide, non-transferable, non-sublicensable, right and license during the Term to:
      1. access and use, and to permit Users to access and use, the Tough Commerce Platform;
      2. tmarket the Supplier Storefront to prospective Customers;
      3. supply the Products to Customers as ordered by Customer through use of the Supplier Storefront; and
      4. exercise the rights granted to Supplier in this Section 2.1 with respect to the Tough Commerce Platform under Supplier’s own branding, trademark(s), logos, or Product names, in accordance with the terms and conditions set out in Section 2.2 below.
    2. White Label and Co-Branding Rights.
      1. The Supplier Storefront will be provided to Supplier by Tough Commerce as a Supplier-branded version and shall be branded with Supplier’s own brand, trademarks and logos, as specified in the Specifications, at all times when offered to prospective Customers. Supplier may attach to or display in association with its own private label branding, including its trademarks, logos and trade names (“Supplier Marks”) to the Supplier Storefront, packaging and all manuals, marketing and technical materials relating thereto.
      2. Notwithstanding Section 2.2(a), the Supplier Storefront will be co-branded as “Powered by Tough Commerce™” in such locations within the user interface as the parties may agree upon from time to time.
    3. Restrictions. Supplier shall not (and shall not allow Users or any third party to): (a) possess, download or copy the Platform, including but not limited to any component which comprises the Platform; (b) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Storefront, except to the extent that enforcement is prohibited by applicable law; (c) sell, rent, lend, transfer, distribute, license, or grant any rights in the Platform in any form to any person without the written consent of Tough Commerce; (d) create any “links” to or “frame” or “mirror” of the Platform or any portion thereof; or (e) use the Storefront in violation of applicable laws.
  3. PROPRIETARY RIGHTS
    1. Reservation of Rights. The rights and licenses granted under this Agreement are as expressly set forth in this Agreement. Tough Commerce and its licensors own and shall retain all right, title and interest (including without limitation all Intellectual Property Rights), in and to the Software, Tough Commerce Platform, and Supplier Storefront. Supplier acknowledges and agrees that, except for the limited rights and licenses granted herein, Supplier does not own any Intellectual Property Rights in and to the Tough Commerce Supplier Storefront This Agreement does not involve or contemplate any transfer or assignment of any of Tough Commerce Intellectual Property Rights in and to the Tough Commerce Platform or Supplier Storefront to Supplier. Supplier shall have only the limited rights specifically granted to it by Tough Commerce under this Agreement.
    2. Usage Data. Notwithstanding anything to the contrary in this Agreement, Supplier acknowledges that the Supplier Storefront may provide Usage Data (as hereinafter defined) to Tough Commerce and Tough Commerce may monitor Supplier’s and its Customer’s use of the Supplier Storefront and collect and compile aggregated and anonymized data, information, analytics and diagnostic statistics relating to the provision and operation, and Supplier’s and its Customers’ use, of the Storefront (“Usage Data”). As between Tough Commerce and Supplier, all right, title, and interest in Usage Data, including all Intellectual Property Rights therein, belong to and are retained solely by Tough Commerce. Tough Commerce may use Usage Data to support (including to improve) the Supplier Storefront, develop new products and services, and for any other business purpose, without compensation to or the approval or consent of Supplier, provided that the Usage Data does not contain any Personal Information or Supplier Data.
    3. Feedback. Supplier may provide reasonable feedback to Tough Commerce including, but not limited to, suitability, problem reports, bug-fixed, suggestions and other information with respect to the of the Storefront (“Feedback”). Supplier hereby grants to Tough Commerce a fully paid-up, royalty-free, worldwide, assignable, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Tough Commerce Platform and any other Tough Commerce products or services, or for any other purposes, any Feedback provided by Supplier.
    4. Trademark Use. During the Term and subject to each Party’s written approval, each Party may (a) display the Marks of the other Party on its website; (b) describe the other Party’s business relationship on its website; and (c) include a link from its website to the other Party’s website.
  4. ACCOUNT ACTIVATION AND DELETION
    1. Accounts. Tough Commerce is responsible for the creation and provisioning of a User account (“Account”) to Supplier for use of the Tough Commerce Platform. Supplier is responsible for all activity that occurs in an Account. Supplier must be the older of: (i) 18 years, or (ii) at least the age of majority in the jurisdiction where the Supplier’s principal place of business is and from which you use the Tough Commerce Platform to open an Account.
    2. Passwords. Supplier understands that Tough Commerce will use the email address it provides on opening an Account or as updated from time to time as the primary method for communication with it (“Primary Email Address”). Supplier must monitor the Primary Email Address it provides to Tough Commerce and its Primary Email Address must be capable of sending and receiving messages. Supplier email communications with Tough Commerce can only be authenticated if it comes from its Primary Email Address. Supplier is responsible for keeping its password secure. Tough Commerce cannot and will not be liable for any loss or damage from your failure to maintain the security of Supplier’s Account and password.
    3. Account Deletion. Supplier may delete its Account if there is no outstanding payment due and payable to Tough Commerce. Supplier Data as referenced in Section 8.1 should be captured by Supplier prior to any deletion or termination of this Agreement in accordance with Section 12. After deletion of an Account or upon termination of this Agreement, Tough Commerce may, at its sole discretion, supply Supplier with Supplier Data upon Supplier’s request.
  5. SUPPORT AND SERVICE LEVELS
    1. Support Services. Tough Commerce shall provide the Support Services to Supplier in accordance with the Support Terms and shall use commercially reasonable efforts to maintain the service levels as provided for in the Service Level Agreement.
  6. PAYMENT OF FEES AND TAXES
    1. Fees. Supplier will pay the Fees (as defined in this Section 6.1) indicated in the Tough Commerce Platform Subscription Form, including but not limited to applicable fees relating to the value of sales made through the Supplier Storefront (“Transaction Fees” for credit card processing through the Tough Commerce Payment Service), and any fees relating to Supplier’s purchase or use of any additional services such as shipping, third party apps, API integration, implementation services, “buy now pay later” and custom feature or development services (“Additional Fees”). Together, the Subscription Fees, Transaction Fees and the Additional Fees are referred to as the “Fees”, as mutually agreed upon by the parties. Transaction Fees are non-refundable and apply even if orders or transactions are cancelled or refunded.
    2. Financial Information. The Tough Commerce Payment Service provider and not Tough Commerce shall be liable for the processing, proper handling, management, and use of Supplier’s financial information as required hereunder.
    3. Payment and Suspension for Non-Payment. Subject to Section 6.6 hereof:
      1. Fees are paid in advance and will be billed monthly in thirty (30) day intervals (each such date, a “Billing Date”). Supplier will be charged on each Billing Date for all outstanding Fees that have not previously been charged. Fees will appear on an invoice, which will be sent to Supplier via the Primary Email Address provided. Payment obligations are non-cancellable and non-refundable.
      2. Supplier must keep a valid payment method on file with Tough Commerce to pay for all incurred and recurring Fees. Tough Commerce will charge the applicable Fees to any valid payment method that the Supplier authorizes (“Authorized Payment Method”), and Tough Commerce will continue to charge the Authorized Payment Method for applicable Fees until this Agreement is terminated and any and all outstanding Fees have been paid in full.
      3. If Tough Commerce is not able to process payment of the Fees using the provided Authorized Payment Method, we will contact Supplier in writing and make a second attempt to process payment using another Authorized Payment Method. If the second attempt is not successful, we will make a final attempt within twenty (20) days following the second attempt. If our final attempt is not successful, Tough Commerce may immediately suspend and revoke access to the Supplier’s Account and use of the Tough Commerce Platform. Supplier’s Account will be reactivated upon his payment of any outstanding Fees, plus the Fees applicable to his next billing cycle. If Supplier is unable to cure such non-payment within sixty (60) days following the date of suspension, Tough Commerce reserves the right to terminate this Agreement in accordance with Section 13. Tough Commerce will not be liable to Supplier or to any third party for any claims or arising from or related to suspension of the Tough Commerce Platform resulting from Supplier’s non-payment. Any suspension of the rights hereunder by Tough Commerce under the preceding sentence shall not excuse Supplier from its obligation to make all payment(s) under the Agreement.
    4. Taxes. The Fees under this Agreement are exclusive of all federal and provincial sales, use and other applicable taxes, and all customs duties and fees, export taxes and fees and similar amounts (collectively, “Taxes”), and Supplier shall be responsible for the payment of all such Taxes. Supplier shall be solely responsible for the calculation and payment of any Taxes to the relevant taxing authority, and shall not reduce the amount of the fees payable for such tax payment. For greater clarity, Tough Commerce is solely responsible for taxes assessable against it based on its income, property and employees.
    5. Overdue Charges. Any payment not received from Supplier by the due date may accrue (except with respect to charges then subject to a reasonable and good faith dispute), at Tough Commerce’s discretion, late charges at the rate of 1.5% of the outstanding balance per month (18% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
    6. Payment Disputes. Supplier shall have two (2) weeks from the Billing Date to provide notice to Tough Commerce in regards to any payment dispute. Tough Commerce will not exercise its rights under Section 6.2 hereof if Supplier is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
    7. Bookkeeping Tough Commerce agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of one (1) year after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder.
  7. SUPPLIER DATA AND PRIVACY
    1. Ownership. As between Tough Commerce and Supplier, Supplier exclusively owns all rights, title and interest in and to all Supplier Data. Tough Commerce does not acquire any rights, title or ownership interest of any kind whatsoever, expressed or implied, in any of the Supplier Data. Supplier shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Supplier Data and the means by which Supplier acquired Supplier Data; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Supplier Storefront, and notify Tough Commerce promptly of any such unauthorized access or use; and (c) use the Platform only in accordance with applicable laws and government regulations.
    2. Supplier Data. Supplier is responsible for properly using the Tough Commerce Platform in a manner that provides security and redundancy of its Supplier Data to prevent unauthorized access to the Supplier Storefront and to prevent unauthorized access to Supplier Data, and ensuring the appropriate level of backup to prevent any loss of such data.
    3. Technical and Organizational Safeguards. In connection with the provision of the Tough Commerce Platform and Storefront, Tough Commerce will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Supplier Data, Customer Data and Personal Information, with the appropriate safeguards. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data and Supplier Data, as well as Personal Information, by Tough Commerce personnel except (a) to provide the Supplier Storefront and prevent or address service or technical problems, (b) as compelled by law and upon identification of lawful authority, or (c) as expressly permitted in writing by Supplier. Tough Commerce shall not access Supplier Data except to provide the Tough Commerce Platform to Supplier and prevent or address service or technical problems, or at Supplier’s request in connection with Customer support matters.
    4. Personal Information. Tough Commerce shall secure Personal Information with all necessary safeguards appropriate to the level of sensitivity of the Personal Information. Tough Commerce shall only Process Personal Information on behalf of and in accordance with Supplier’s documented instructions and Data Protection Laws for the following purposes: (i) Processing in accordance with the Agreement; (ii) Processing initiated by Supplier’s Users or Customers in their use of the Platform or Storefront, as applicable; and (iii) Processing to comply with other documented reasonable instructions provided by Supplier where such instructions are consistent with the terms of the Agreement. Tough Commerce shall, in connection with the provision of the Platform, comply with Data Protection Laws, as well as Tough Commerce’s Privacy Policy.
    5. Data Breach. Upon becoming aware of any unlawful access to any Personal Information, any unauthorized access to such facilities or equipment resulting in loss, disclosure or alteration of any Personal Information, or any actual loss of or suspected threats to the security of Personal Information (including any physical trespass on a secure facility, computing systems intrusion/hacking, loss/theft of a computing device, storage media or printed materials, or other unauthorized access) (each a “Security Incident”), Tough Commerce will promptly notify Supplier of the Security Incident (and in all circumstances at least as soon as it reports to similarly situated customers of Supplier, but in any event as soon as reasonably possible in the circumstances), and will investigate or perform required assistance in the investigation of the Security Incident and provide Supplier with detailed information about the Security Incident. Tough Commerce will take all commercially reasonable steps to mitigate the effects of the Security Incident, or assist Supplier in doing so; and will provide prior notice to Supplier of, and will not undertake any, proposed communications to third parties related to a Security Incident involving Personal Information without Supplier’s prior written approval, not to be unreasonably withheld, conditioned or delayed. Tough Commerce will work with and coordinate with Supplier on any such notices in any event. Tough Commerce will comply with this Section 7.5 at Tough Commerce’s cost unless the Security Incident arose from Supplier’s negligent or willful acts or Tough Commerce’s compliance with Supplier’s express written instructions.
    6. Supplier Data and Customer Data Portability and Deletion. Upon request by Supplier made during the Term hereof or within thirty (30) days after the effective date of termination of the Agreement, Tough Commerce will make the Supplier Data and Customer Data available to Supplier for export or download. After such thirty day (30) day period, Tough Commerce will have no obligation to maintain or provide any Supplier Data and Customer Data, and will thereafter delete or destroy all copies of Supplier Data and Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
    7. California Consumer Privacy Act (CCPA). If Supplier’s place of business is in the United States, Tough Commerce is a “Service Provider” as such term is defined under §1798.140(v) of the CCPA. As such Tough Commerce shall not retain, use or disclose any personal information (as defined in the CCPA) received from Supplier for any purpose other than the specific purpose of providing the Products specified in the Supplier Terms and Conditions or for such other business purpose as is specified in the Supplier Terms and Conditions.
  8. SUPPLIER RESPONSIBILITIES
    1. Customer Agreement. Supplier shall ensure that Customer acknowledges the Customer Agreement for use of the Supplier Storefront. Supplier shall use reasonable commercial practices to enforce the Customer Agreement with Customers to protect Tough Commerce Intellectual Property Rights in the Storefront in the same manner and to the same extent as Supplier enforces its own Intellectual Property Rights. Supplier, and not Tough Commerce, is responsible for Customers’ use of the Supplier Storefront. Supplier will ensure that all Customers comply with any applicable obligations of Supplier under this Agreement and that any terms of any Customer Agreement are not inconsistent with this Agreement.
    2. Supplier Storefront.
      1. Supplier acknowledges and agrees that any purchase and sale made through the use of the Supplier Storefront is between Supplier and the relevant Customer. Supplier, for the purposes of this Agreement, shall be considered the seller, merchant or storefront owner of record for all Products on the Supplier Storefront and Tough Commerce is solely responsible for the creation, maintenance, hosting, operation, management, payment processing and accuracy of the Supplier Storefront.
      2. Supplier is solely responsible for Products sold on the Supplier Storefront, including Product descriptions, pricing, fees, taxes, defects, required legal disclosures, regulatory compliance, offers, or promotional content related to the Products.
    3. Use Guidelines. Supplier shall use the Tough Commerce Platform solely for its business purposes as contemplated by the Agreement and shall not interfere with or disrupt the integrity or performance of the Tough Commerce Platform or the data contained therein. Supplier may not use the Tough Commerce Platform for any illegal or unauthorized purpose nor may Supplier, in the use of the Tough Commerce Platform, violate any laws in its jurisdiction (including but not limited to copyright laws), the laws applicable to Supplier in their Customer’s jurisdiction, or the laws of Canada and the Province of Ontario.
    4. Product Configuration. Supplier is responsible for all Product configuration (pricing, quantity, availability, etc.) as listed on the Supplier Storefront. Tough Commerce is not responsible for the configuration of any Product and is not liable to customer or Supplier for any failure of Supplier to adequately configure the Products. If Tough Commerce has an implementation mandate to set up the Supplier Storefront, Supplier will have to approve such configuration and will be solely responsible for the accuracy of the configurations.
    5. Assistance. Supplier acknowledges that Tough Commerce’s ability to deliver the Tough Commerce Platform and Storefront, as applicable, is dependent on the accuracy and timeliness of Supplier’s information and assistance.
    6. Equipment. Supplier is solely responsible for acquiring, servicing, maintaining and updating all equipment, computers, software and communications services (such as Internet access) that are required to allow Supplier to access and use the Tough Commerce Platform and Supplier Storefront, and for all expenses relating thereto.
  9. CONFIDENTIALITY OBLIGATIONS
    1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of either Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, the Tough Commerce Platform, Supplier Data (which is the Confidential Information of the Supplier), business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
    2. Confidentiality. Subject to Section 9.4, and unless the Disclosing Party expressly agrees in writing otherwise, the Receiving Party will: (a) use the Disclosing Party’s Confidential Information only during the Term and only as necessary to perform the Receiving Party’s obligations under the Agreement; (b) disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s directors, officers, agents, employees and authorized subcontractors and their employees and only to the extent that such disclosure is necessary to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under the Agreement. Supplier shall not disclose any performance, benchmarking, or feature-related information about the Tough Commerce Platform.
    3. Protection. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
    4. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
    5. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies may be inadequate.
    6. Return of Confidential Information. Upon Disclosing Party’s written request upon expiration or termination of the Agreement (or at any earlier time upon written request by the Disclosing Party), the Receiving Party will: (a) promptly deliver to the Disclosing Party all originals and copies, in whatever form or medium, of all the Disclosing Party’s Confidential Information and all documents, records, data and materials, in whatever form or medium, containing such Confidential Information in the Receiving Party’s possession, power or control and the Receiving Party will delete all of the Disclosing Party’s Confidential Information from any and all of the Receiving Party’s computer systems, retrieval systems and databases; and (b) request that all persons to whom it has provided any of the Disclosing Party’s Confidential Information comply with this Section 9.6.
  10. WARRANTIES AND DISCLAIMERS
    1. Supplier Warranties. Supplier hereby represents and warrants to Tough Commerce that:
      1. Supplier has full power, corporate or otherwise, to enter into this Agreement, supply the Products, and perform its obligations hereunder;
      2. Supplier is accessing and using the Tough Commerce Platform solely for Supplier’s own use; and
      3. Supplier is responsible for complying with all rules, regulations and procedures of local, provincial, federal and foreign authorities applicable to Supplier and its business.
    2. Tough Commerce Warranties. Tough Commerce hereby represents and warrants to Supplier that:
      1. Tough Commerce has the necessary rights, title and interest to grant the rights and licenses in the Supplier Storefront to the Supplier hereunder;
      2. The Tough Commerce Platform and Supplier Storefront will function and perform substantially in accordance with the Specifications during the Term; and
      3. At the time of delivery, the Supplier Storefront will be free from any virus, disabling mechanism or protection feature designed to prevent its use including any clock, timer, counter, computer virus, worm, software lock, drop dead device, trojan horse routine, trap door, time bomb or any other codes o instructions that are designed to access, modify, replicate, distort, delete, damage or disable any such computer systems or any other software or hardware;
      4. Tough Commerce shall not breach or violate any applicable laws, including but not limited to any applicable privacy or Data Protection Laws;
    3. Warranty Disclaimers. THE WARRANTIES IN SECTION 10.1 AND 10.2 ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH HEREIN, PROVIDED HEREIN, THE SUPPLIER STOREFRONT IS PROVIDED “AS IS” AND “AS AVAILABLE.” TOUGH COMMERCE DOES NOT REPRESENT OR WARRANT THAT THE SUPPLIER STOREFRONT WILL MEET ANY OR ALL OF SUPPLIER OR CUSTOMER’S PARTICULAR REQUIREMENTS, THAT THE SUPPLIER STOREFRONT WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE SOFTWARE CAN BE FOUND IN ORDER TO BE CORRECTED.
    4. Internet Connectivity Disclaimer. Tough Commerce makes the Tough Commerce Platform and Supplier Storefront available for access via the Internet. Supplier shall provide, at Supplier’s own expense, all necessary hardware, applications and Internet connectivity necessary to access the Tough Commerce Platform and Supplier Storefront over the Internet. Supplier is responsible for and shall ensure that Supplier’s computer equipment and an internet connection meets the minimum specifications published by Tough Commerce and/or Specifications. Supplier hereby acknowledges that the Tough Commerce Platform and/or Supplier Storefront may be interrupted due to (a) website downtime for scheduled maintenance at Tough Commerce’s sole discretion, or (b) interruptions in Internet connectivity or other website downtime caused by circumstances beyond Tough Commerce’s control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer or telecommunications failures, or delays involving hardware of software not within Tough Commerce’s control or network intrusions. Supplier hereby acknowledges and agrees that Tough Commerce shall not, in any way, be liable for, or have responsibility with respect to, any such service interruptions and releases Tough Commerce from any claims relating thereto.
  11. INDEMNITIES
    1. By Supplier. Supplier shall defend or settle at its own expense any and all third party claims or allegations (each a “Claim”) brought against Tough Commerce and its licensors and each of their respective shareholders, directors, officers, employees, contractors, consultants, agents and representatives (each a “Tough Commerce Indemnified Party”), to the extent that such Claim is based on (1) representations or warranties not consistent with this Agreement, (2) any additional unauthorized terms agreed to by Supplier in the Customer Agreement, (3) violation of any law, regulation, or order, including Supplier’s breach or violation of any applicable export or import laws or regulation, (4) any infringement or misappropriation of any patent, trademark, trade secret, copyright or any other Intellectual Property Right or proprietary right of any third party resulting from Supplier’s use of Supplier Data (including claims by Customers relating to Customer Data), or Supplier’s use of the Tough Commerce Platform in breach of this Agreement, infringes or misappropriates such third party’s Intellectual Property Rights or violates applicable law, Supplier’s modifications to the Supplier Storefront and where Tough Commerce would not have been subject to the claim in the absence of such modifications by Supplier, (5) a breach of Supplier’s obligations hereof, or (6) any fraudulent act, neglect or willful misconduct of Supplier’s agents or employees, in each case except and to the extent that Tough Commerce is liable as expressly provided in this Agreement and will indemnify Tough Commerce for (a) any costs or expenses (including legal fees) incurred in connection with a Claim, (b) damages and costs finally awarded against Tough Commerce in respect of a Claim, or (c) any amounts paid by Tough Commerce under a court-approved settlement of a Claim.
    2. By Tough Commerce:
      1. Intellectual Property Infringement Indemnity. Tough Commerce agrees to defend, indemnify and hold Supplier harmless against any and all damages, costs, liabilities, expenses and settlement amounts that may arise as against Supplier in connection with any and all third party claims, liabilities, losses, damages, expenses, or causes of action, including, without limitation reasonable legal fees and expenses or action by any third party, arising with respect of any claim that use by Tough Commerce or a Customer of the Supplier Storefront infringes such third party’s Intellectual Property Rights (an “IP Claim”). Tough Commerce shall have sole control of the settlement or defense of all IP Claims.
      2. Other Remedies. If (a) Tough Commerce becomes aware of an actual or potential IP Claim, or (b) Supplier provides Tough Commerce with notice of an actual or potential IP Claim, Tough Commerce may (or in the case of an injunction against Supplier, shall), at Tough Commerce’s sole option and determination: (i) procure for Supplier the right to continue to use the Platform; or (ii) replace or modify the Platform with an equivalent or better service so that Supplier’s use is no longer infringing; or (iii) if (i) and (ii) are not commercially available to Tough Commerce, Tough Commerce shall be entitled to require Supplier to stop using the Platform and terminate all licenses granted to Supplier for the Supplier Storefront, and will immediately make the Supplier Data and Customer Data available to Supplier for export or download as set forth in Section 7.6 of this Agreement.
      3. Entire Liability. Section 11.2 hereof contains Tough Commerce’s entire liability and Supplier’s sole remedies for an IP Claim.
  12. LIMITATION OF LIABILITY
    1. Limitation on Certain Damages. SUBJECT TO SECTION 12.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES RESULTING FROM LOSS OF USE OR PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF TOUGH COMMERCE OR THE SUPPLIER STOREFRONT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE.
    2. Limitation on Direct Damages. SUBJECT TO SECTION 12.3 HEREOF, IN NO EVENT SHALL EITHER PARTY’S MAXIMUM, CUMULATIVE AND AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, LOSSES AND DAMAGES EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM SUPPLIER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS CUMULATIVE LIMIT.
    3. Exclusions. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THE AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION CLAIMS, (III) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (IV) ANY CLAIMS FOR NON-PAYMENT, (V) A SECURITY INCIDENT OR DATA BREACH; (VI) FRAUD OR WILLFUL MISCONDUCT, OR (VII) BODILY INJURY OR DEATH.
  13. TERM AND TERMINATION
    1. Term. This Agreement shall commence on the Effective Date and continue in effect until the date indicated on the Tough Commerce Platform Subscription Form or until terminate in accordance with the provisions of this Agreement.
    2. Termination.
      1. For Cause. Either party may terminate this Agreement on for cause (i) upon thirty (30) days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period or (ii) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within ninety (90) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
      2. For Convenience. Either party may terminate this Agreement, in whole or in part, at any time without cause and without liability, except for any outstanding payment obligations, by providing at least ninety (90) days’ written notice to the other party.
    3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement for any reason, Tough Commerce shall provide reasonable cooperation and assistance to facilitate the orderly transition of services under the terms of this Agreement, upon written notice to the Supplier for at least ninety (90) business days prior to the effective date of termination or expiration and subject to the terms and conditions set forth herein. No expiration or termination will affect Supplier’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Supplier to any refund.
    4. Transition Period. During the Transition Period, Supplier shall be entitled to continue to have access to the Supplier Storefront solely for the purpose of providing support to Customers up until the effective date of termination or expiry of the Agreement. Customer Data and Supplier Data shall be retained for thirty (30) days after the effective date of termination or expiry of the Agreement in accordance with Section 7.6. After such thirty day (30) day period, Tough Commerce will have no obligation to maintain or provide any Customer Data and Supplier Data, and will thereafter delete or destroy all copies of Customer Data and Supplier Data in its systems or otherwise in its possession or control, unless legally prohibited.
  14. DISPUTE RESOLUTION
    1. IN CONNECTION WITH A DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES SHALL ATTEMPT IN GOOD FAITH TO RESOLVE SUCH DISPUTE PROMPTLY BY NEGOTIATION THROUGH A REPRESENTATIVE FROM EACH PARTY. NEGOTIATIONS SHALL BE COMMENCED BY WRITTEN NOTICE BEING DELIVERED BY A PARTY TO THE OTHER PARTY THAT IDENTIFIES THE BASIS AND DETAILS OF SUCH DISPUTE. A REPRESENTATIVE FROM EACH PARTY FAMILIAR WITH THE CIRCUMSTANCES SURROUNDING THE DISPUTE SHALL MEET WITHIN TEN (10) BUSINESS DAYS AFTER RECEIPT OF SUCH NOTICE, OR SUCH OTHER DATE AS MAY BE MUTUALLY AGREED, AT A MUTUALLY ACCEPTABLE TIME AND PLACE, AND THEREAFTER AS OFTEN AS THEY REASONABLY DEEM NECESSARY, TO EXCHANGE RELEVANT INFORMATION AND TO ATTEMPT TO RESOLVE THE DISPUTE. IF SUCH REPRESENTATIVES ARE UNABLE TO RESOLVE A DISPUTE WITHIN TEN (10) BUSINESS DAYS AFTER SUCH MEETING, THE DISPUTE SHALL BE PROMPTLY SUBMITTED TO THE APPROPRIATE OFFICERS OF SUPPLIER AND TOUGH COMMERCE FOR RESOLUTION. IF THE DISPUTE REMAINS UNRESOLVED WITHIN FIVE (5) DAYS AFTER SUBMISSION TO SUCH PERSONS OR REMAINS UNRESOLVED WITHIN FORTY-FIVE (45) BUSINESS DAYS AFTER THE RECEIPT OF THE INITIAL DISPUTE NOTICE, WHICHEVER IS EARLIER, EITHER PARTY MAY RESORT TO LITIGATION OR SUCH OTHER DISPUTE RESOLUTION FORUM AS MUTUALLY AGREED IN WRITING BY AUTHORIZED REPRESENTATIVES OF THE PARTIES. NOTWITHSTANDING THE FOREGOING, EITHER PARTY MAY SEEK EQUITABLE REMEDIES IN ANY COURT OF COMPETENT JURISDICTION TO PROTECT ITS INTELLECTUAL PROPERTY OR CONFIDENTIAL INFORMATION.
  15. EXPORT RESTRICTIONS
    1. Supplier hereby represents and warrants that Supplier is not located in, under the control of, and is not a national or resident of, any country to which the export of the Software or related information would be prohibited by the laws and/or regulations of Canada and/or the United States.
  16. ANTI-CORRUPTION COMPLIANCE
    1. Each party acknowledges that it is aware of, understands and has complied and will comply with, all applicable Canadian and foreign anti-corruption laws, including without limitation, the Canadian Corruption of Foreign Public Officials Act (CFPOA) and U.S. Foreign Corrupt Practices Act of 1977, and similarly applicable anti-corruption and anti-bribery laws. Each party agrees that no one acting on its behalf will give, offer, agree or promise to give, or authorize the giving directly or indirectly, of any money or other thing of value, including travel, entertainment, or gifts, to anyone as an unlawful inducement or reward for favorable action or forbearance from action or the exercise of unlawful influence (a) to any governmental official or employee (including employees of government-owned and government-controlled corporations or agencies or public international organizations), (b) to any political party, official of a political party, or candidate, (c) to an intermediary for payment to any of the foregoing, or (d) to any other person or entity in a corrupt or improper effort to obtain or retain business or any commercial advantage, such as receiving a permit or license, or directing business to any person. Improper payments, provisions, bribes, kickbacks, influence payments, or other unlawful provisions to any person are prohibited under the Agreement.
  17. ASSIGNMENT
    1. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law, change of control or otherwise, without the prior written consent of the other party, which such consent shall not be unreasonably withheld; provided that either party may assign this Agreement without the other party’s written consent in the event of and in connection with: (i) a change of control; (ii) corporate reorganization; (iii) merger; (iv) the sale of all or substantially all of the outstanding shares of that Party; or, (v) divestiture of all of substantially all of that Party’s assets. Any attempt by a party to assign its rights or obligations under the Agreement in breach of this Section 18 shall be void and of no effect..
  18. GENERAL
    1. Force Majeure. Neither Tough Commerce nor Supplier shall be deemed to be in default of any provision of this Supplier Terms and Conditions (other than Supplier’s obligation to pay amounts due to Tough Commerce hereunder) for any failure in performance resulting from acts or events beyond its reasonable control, including acts of god, acts of civil or military authority, civil disturbance, strikes, fires, epidemics or pandemics, or other catastrophes.
    2. Survival. Section 1, Section 7-11, Section 13, and Section 19 shall survive any termination or expiration of the Agreement. No other provisions of the Agreement survive the expiration or earlier termination of the Agreement.
    3. Waiver. The failure of a Party to claim a breach of any term or condition of the Agreement shall not constitute a waiver of such breach or the right of such Party to enforce any subsequent breach of such term or condition. No failure or delay by either Party in exercising any right under the Agreement shall constitute a waiver of that right.
    4. Independent Contractors. The Parties to the Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
    5. Governing Law. All matters arising out of or relating to this Agreement shall be governed by the internal laws of the Province of Ontario and the laws of Canada applicable therein and the parties hereby attorn to the exclusive jurisdiction of the courts of such Province. The parties expressly disclaim all applicable choice of law or conflict of law rules . The application of the United Nations Convention on Contracts for the International Sale of Goods to this Supplier Terms and Conditions is expressly excluded and does not apply to the Agreement.
    6. Notices. Notices and other communications provided for herein will be in writing and will be delivered by hand or will be sent by electronic means (and if sent by electronic means, will be confirmed by registered mail, return receipt requested, or by overnight mail or courier, postage and delivery charges prepaid), to the addresses listed above or the Parties current business or resident address.
    7. Entire Agreement. The Agreement is the entire agreement between Supplier and Tough Commerce in respect to the subject matter hereof, superseding any other agreements or discussions, oral or written, and may not be changed except by a written agreement with Tough Commerce.
    8. Remedies. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
    9. Amendments. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW OR AS OTHERWISE AGREED IN THE TOUGH COMMERCE SUBSCRIPTION FORM, TOUGH COMMERCE MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING SUPPLIER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE TOUGH COMMERCE PLATFORM. UNLESS OTHERWISE INDICATED BY TOUGH COMMERCE ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO SUPPLIER OR IS POSTED ON THE PLATFORM (WHICHEVER IS THE EARLIER).
    10. Language of Supplier Terms and Conditions. The Parties hereto confirm that they have requested that the Agreement and all related documents be drafted in English. Any French translation hereof has been provided for information purposes only and does not have any legal value nor create any contractual relationship between the Parties. Les parties aux présentes ont exigé que la présente entente et tous les documents connexes soient rédigés en anglais. Toute traduction de celle-ci est non-officielle, est fournie à des fins d’information seulement et ne crée aucun lien contractuel entre les parties.
    11. Severability. If any provision of this Supplier Terms and Conditions is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term, condition or provision of the Agreement or invalidate or render unenforceable such term, condition or provision in any other jurisdiction.
Last update: June, 2023



SCHEDULE A
SUPPORT TERMS

Any term not defined herein but used in capitalized form has the meaning given to it in the Supplier Terms of Service.

  1. Support entitle a Supplier to the following:
    1. Telephone or electronic support in order to help suppliers locate and correct problems with the Software.
    2. Bug fixes and code corrections to correct Software malfunctions in order to bring such Software into substantial conformity with the functionality as specified in the Documentation and all extensions, enhancements and other changes that Tough Commerce, at its sole discretion, makes or adds to the Tough Commerce Platform and which Tough Commerce furnishes, without charge, to all other subscribers on the Platform.
    3. Up to three (3) dedicated contacts designated by Supplier in writing that will have access to Support Services.
  2. Response and Resolution Goals.
    1. “Business Hours” are 8am-4pm EST, Monday through Friday, except holidays.
    2. “Fix” means the repair or replacement of a Software component to remedy Problem.
    3. “Problem” means a defect in Software as defined in the Tough Commerce Platform.
    4. “Respond” means acknowledgement of Problem received containing assigned support engineer name, date and time assigned, and severity assignment.
    5. “Workaround” means a change in the procedures followed or data supplied by the supplier to avoid a Problem without substantially impairing Supplier’s use of the Software.
      1. Severity 1
        The production system is creating a significant impact to the supplier’s business function preventing that function from being executed. Tough Commerce will Respond within one (1) business day. Upon confirmation of receipt, a Tough Commerce support personnel begins continuous work on the Problem, and a Supplier resource must be available at any time to assist with problem determination. supplier Support will provide reasonable effort for Workaround or Fix within 48 hours, once the Problem is reproducible or once we have identified the Software defect. Tough Commerce may incorporate Fix in future releases of software.
      2. Severity 2
        The production system or application is moderately affected. There is no workaround currently available or the workaround is cumbersome to use. Tough Commerce will Respond within one (1) business day. supplier Support will provide reasonable effort for Workaround or Fix within seven (7) business days, once the Problem is reproducible. Tough Commerce may incorporate fixes in future releases of Software.
      3. Severity 3
        The production system or application issue is not critical: no data has been lost, and the system has not failed. The issue has been identified and does not hinder normal operation, or the situation may be temporarily circumvented using an available workaround. Tough Commerce will Respond within three (3) business days. Supplier support will provide reasonable effort for Workaround or Fix within 10 business days, once the Problem is reproducible. Tough Commerce may incorporate Fix in future releases of software.
      4. Severity 4
        Non-critical issues, general questions, enhancement requests, or the functionality does not match documented specifications. Tough Commerce will Respond within 4 business days. Resolution of Problem may appear in future releases of software.
  3. Supplier shall have access to support services through a support email ([email protected]) and our direct support phone number line 1.866.898.6151 is available at regular operating hours



SCHEDULE B
SERVICE LEVEL AGREEMENT

This Service Level Agreement applies to and is incorporated by reference into the Tough Commerce Platform Subscription Form made by and between Tough Commerce (as identified in the Agreement) and the supplier (as identified in the Agreement). Any term not defined herein but used in capitalized form has the meaning given to it in the Agreement.

Tough Commerce may modify this Service Level Agreement from time to time by posting such amended Service Level Agreement to Tough Commerce’s website, but will provide sixty (60) days advance notice to Supplier before materially reducing the benefits offered to Supplier under this Service Level Agreement.

During the term of the Tough Commerce Platform Subscription Form, Tough Commerce will use reasonable efforts to achieve a Monthly Uptime Percentage (as defined herein) of at least 99.5% for any calendar month. If Tough Commerce does not meet the Monthly Uptime Percentage, and so long as Supplier’s Account with us is current, Supplier will be eligible to receive the service credits described below. These service credits are Supplier’s exclusive remedy for any failure by Tough Commerce to meet the service levels as described herein.


  1. DEFINITIONS
    1. “Downtime” means the time in which any service listed above is not capable of being accessed or used by the supplier, as monitored by Tough Commerce.
    2. “Monthly Uptime Percentage” means the total number of minutes in a calendar month minus the number of minutes of Downtime suffered in a calendar month, divided by the total number of minutes in a calendar month.
  2. SERVICE CREDITS
    1. Credits are issued as a financial reimbursement if Tough Commerce does not meet the Monthly Uptime Percentage for a particular month of the ordered term. Upon approval of a claim we will provide the applicable remedy set forth below:
    2. Monthly Uptime Percentage Service Credit
      Less than 99.0% but >= 98.0% 5% of the monthly fee
      Less than 98.0% but >= 97.0% 10% of the monthly fee
      Less than 97.0% but >= 96.0% 15% of the monthly fee
      Less than 96.0% 20% of the monthly fee
    1. Exclusion from Downtime. The following are not counted as Downtime for the purpose of calculating Monthly Uptime Percentage:
      1. Service unavailability caused by scheduled maintenance of the platform used to provide the applicable service (Tough Commerce will endeavor to provide seven days’ advance notice of service-affecting scheduled maintenance); or
      2. Service unavailability caused by events outside of the direct control of Tough Commerce or its subcontractor(s), including any force majeure event, the failure or unavailability of supplier’s systems, the Internet, and the failure of any other technology or equipment used to connect to or access the service.
  3. SERVICE CREDITS

    4. To receive a service credit for a particular calendar month, Supplier must submit a claim by email to the support team within thirty (30) days of the end of the month during which the Service did not meet the Monthly Uptime Percentage, and include the following information:

    1. Supplier name and account number;
    2. the name of the service to which the claim relates;
    3. the name, email address, and telephone number of the supplier’s designated contact; and
    4. information supporting each claim of Downtime, including date, time, and a description of the incident and affected service, all of which must fall within the calendar month for which you are submitting a claim.
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