Product Genius subscription terms
Version 2.1 — Effective
Published at https://productgenius.ai/legal/terms.
These Subscription Terms (the “Terms”) govern access to and use of the Product Genius platform. They are entered into between Gamalon, Inc. d/b/a Product Genius, a Delaware corporation with offices at 1 Washington Mall, Suite 1086, Boston, MA 02108 (“Product Genius”, “we” or “us”) and the entity that accepts these Terms (“Customer” or “you”). Each is a “Party.”
These Terms take effect on the earliest of: (a) Customer installing or using the Product Genius application; (b) Customer clicking to accept them; or (c) both Parties executing an Order Form that references them. They bind both Parties equally from that moment. Where an Order Form is executed, that execution governs the relationship and paragraphs (a) and (b) do not apply; these Terms are not separately signed. If you are executing on behalf of an entity, you represent that you have authority to bind that entity, and “Customer” means that entity.
1. Definitions
1.1 “Affiliate” means an entity that controls, is controlled by, or is under common control with a Party, where “control” means ownership of more than 50% of voting securities.
1.2 “AUP” means the Product Genius Acceptable Use Policy at https://productgenius.ai/legal/aup.
1.3 “Authorized User” means an individual employee or contractor of Customer or its Affiliates whom Customer permits to access the Subscription Service through Customer’s account.
1.4 “Confidential Information” means non-public information disclosed by one Party to the other, in any form, that is identified as confidential or that a reasonable recipient would understand to be confidential given its nature and the circumstances of disclosure. Customer’s Confidential Information includes, without limitation, Customer Data, merchandising and pricing strategies, product assortment and sourcing information, sales and financial data, customer and supplier lists, marketing plans, business plans and forecasts, and any information disclosed by or on behalf of Customer during implementation, configuration, or Professional Services engagements. The Subscription Service, Documentation, security and audit materials, and the pricing terms of any Order Form are Product Genius’s Confidential Information.
1.5 “Customer Data” means data that Customer, its Authorized Users, or its Shoppers submit to, or that Product Genius collects on Customer’s behalf through, the Subscription Service or in connection with Professional Services, including product catalogue and inventory data, transaction and order data, Shopper behavioral and preference data, merchandising rules and configurations, pricing information, and any data derived from the foregoing that is attributable to Customer. Customer Data does not include Outputs, Usage Data, or Product Genius Technology (each as described in Sections 5.6, 5.8 and 5.9).
1.6 “Documentation” means the then-current technical and user documentation Product Genius makes generally available for the Subscription Service.
1.7 “DPA” means the Product Genius Data Processing Agreement at https://productgenius.ai/legal/dpa, which is incorporated into these Terms by reference.
1.8 “Enterprise Terms Exhibit” means the Product Genius Enterprise Terms Exhibit, if and only if it is attached to or expressly referenced in an Order Form.
1.9 “Feedback” means suggestions, enhancement requests, or other input regarding the Services that Customer or its Authorized Users provide to Product Genius.
1.10 “Fees” means the amounts payable for the Services as set out in an Order Form or, for a Self-Service Subscription, as presented at the point of purchase.
1.11 “Order Form” means an ordering document executed by both Parties that identifies the Services purchased, the Fees, and the subscription term. Pre-printed or additional terms on a Customer purchase order have no effect.
1.12 “Personal Data” has the meaning given in the DPA.
1.13 “Professional Services” means implementation, configuration, integration, training, or advisory services described in an Order Form.
1.14 “Security Incident” has the meaning given in the DPA.
1.15 “Security Measures” means the technical and organizational measures set out in Schedule 2 to the DPA.
1.16 “Self-Service Subscription” means a paid subscription to the Subscription Service for which the Parties have not executed an Order Form. A Trial is governed by Section 3 and is not a Self-Service Subscription.
1.17 “Services” means the Subscription Service, Support, and any Professional Services.
1.18 “Shopper” means an individual visitor to or customer of Customer’s online store.
1.19 “SLA” means the Product Genius Service Level Agreement at https://productgenius.ai/legal/sla, which applies only where an Order Form or Enterprise Terms Exhibit expressly invokes it.
1.20 “Subscription Service” means the Product Genius personalization and merchandising platform identified in an Order Form or subscribed to through a supported application marketplace, including its Documentation and any Product Genius-supplied components.
1.21 “Support” means the technical support described in Section 4 and, where applicable, the SLA.
1.22 “Usage Data” means data about the configuration, performance, and use of the Subscription Service, in aggregated or de-identified form, that does not identify Customer, any Authorized User, or any Shopper.
1.23 “Volume Limits” means the usage entitlements stated in an Order Form or applicable plan — for example sessions, monthly active shoppers, storefronts, or brand configurations.
2. Access to the Subscription Service
2.1 Grant. Subject to these Terms and payment of Fees, Product Genius grants Customer a limited, non-exclusive, non-transferable, worldwide right during the subscription term to access and use the Subscription Service, and to permit Authorized Users to do so, for Customer’s internal business purposes and in accordance with the Documentation.
2.2 Volume Limits and overage. Customer’s use is licensed up to the Volume Limits. Usage in excess of the Volume Limits is chargeable at the overage rate stated in the Order Form or, if none is stated, at no more than one hundred ten percent (110%) of the applicable per-unit rate in the Order Form, from the start of the billing period in which the excess occurred, invoiced in arrears. Product Genius will notify Customer promptly when usage exceeds eighty percent (80%) of the Volume Limits and again when it becomes aware of material overage. Product Genius will not suspend or degrade the Subscription Service for exceeding Volume Limits without first giving Customer THIRTY (30) days’ notice and an opportunity to true up or reduce usage.
2.3 Changes to the Subscription Service. Product Genius may modify the Subscription Service from time to time. Product Genius will not make a modification that materially degrades the core functionality Customer has subscribed to during a paid subscription term. If Product Genius does so, Customer may terminate the affected Order Form — or, for a Self-Service Subscription, its subscription — on notice and receive a pro-rata refund of prepaid, unused Fees.
2.4 No reliance on future functionality. Customer’s purchase is not contingent on the delivery of future functionality or on any public or private statement regarding future functionality.
2.5 Affiliates. Customer’s Affiliates may use the Subscription Service under Customer’s account or execute their own Order Forms referencing these Terms. Customer remains responsible for its Affiliates’ compliance.
2.6 Beta and preview features. Product Genius may make pre-release, beta, preview, or early-access features available (“Beta Features”). Beta Features are optional, are provided “AS IS” and excluded from Sections 2.3, 9.1, and the SLA, and may be modified, limited, or discontinued at any time without liability. Section 9.3 (Security and compliance warranty) continues to apply to Beta Features. Beta Features are Product Genius’s Confidential Information. Customer’s use of a Beta Feature is at its own discretion and risk. The DPA, including the Security Measures in Schedule 2 to it, applies to Beta Features in full — Product Genius does not reduce its data protection or security obligations for pre-release functionality.
2.7 Adding storefronts, brands, and entitlements. Customer may expand its subscription at any time during a subscription term — for example by adding storefronts, brands, environments, or usage entitlements.
To expand, Customer sends a written request (email is sufficient) to its Product Genius contact. Product Genius will respond in writing confirming what is being added, the applicable fees, any change to Volume Limits, and the start date. That written confirmation, once accepted by Customer in writing, amends the applicable Order Form for the added items.
Added items are co-terminus with the existing subscription term, with fees pro-rated from the start date, and renew with the rest of the subscription. Fees for added items are the rates stated in the Order Form where those rates apply, and otherwise the rates set out in the confirmation.
The Subscription Terms, the DPA, and any Enterprise Terms Exhibit already in place extend automatically to the added storefronts, brands, and environments. Expanding does not require a further legal or security review, and does not change these Terms in any other respect.
2.8 Platform dependencies. The Subscription Service integrates with Customer’s e-commerce platform and depends on that platform’s continued availability, APIs, and policies. Customer will maintain the application installation, the API scopes and permissions the Subscription Service requires, and any theme or storefront integration, and will notify Product Genius before knowingly making a change that would affect them. Product Genius is not in breach of Sections 2.3, 9.1, or the SLA to the extent a failure results from a change to, restriction by, or unavailability of Customer’s e-commerce platform outside Product Genius’s reasonable control. If a platform change materially and permanently prevents Product Genius from delivering the Subscription Service, either Party may terminate the affected Order Form on notice and Product Genius will refund prepaid, unused Fees.
3. Trials, pilots, and proofs of value
3.1 Trial access. Product Genius may make the Subscription Service available at no charge for an evaluation period (a “Trial”). The duration of the evaluation period will be agreed by the Parties in writing before the Trial begins. A Trial may be made available (a) through a supported application marketplace or otherwise without an executed Trial Order Form, in which case no signed document is required and this Section 3 governs the Trial in full; or (b) under a Trial Order Form executed by both Parties, in which case Section 3.6 applies.
3.2 Trial terms. Except as a Trial Order Form provides otherwise, during a Trial:
- (a) the Subscription Service is provided “AS IS” and Section 9.1 does not apply; Sections 9.2 (Mutual warranties) and 9.3 (Security and compliance warranty) continue to apply in full;
- (b) the SLA does not apply;
- (c) either Party may terminate the Trial at any time on notice;
- (d) Product Genius’s total aggregate liability arising out of or relating to the Trial — whether in contract, tort (including negligence), warranty, strict liability, statute, or on any other basis — is US$0.00 (zero US dollars), which applies in place of Section 11.2. Without limiting that, Product Genius has no liability for lost or anticipated profits, revenue or savings, loss of goodwill, business interruption, loss or corruption of data, or for the performance, availability, accuracy or output of the Subscription Service during a Trial; and
- (e) Customer’s sole and exclusive remedy for any failure of, defect in, or dissatisfaction with the Subscription Service during a Trial is to stop using it and terminate the Trial under paragraph (c).
Paragraphs (d) and (e) reflect the fact that no Fees are payable for a Trial and are a fundamental basis on which Product Genius makes Trials available; they apply even if a limited remedy is held to fail of its essential purpose. Nothing in this Section 3.2 excludes or limits liability for fraud, gross negligence, or willful misconduct; any liability that cannot lawfully be excluded or limited; Product Genius’s liability arising from a Security Incident or breach of the DPA (including the Security Measures), which is subject to Section 11.4; or any liability owed directly to a data subject or a supervisory authority under applicable data protection law, which the Parties cannot limit as between themselves.
3.3 What still applies during a Trial. Notwithstanding Section 3.2, the DPA (including the Security Measures in Schedule 2 to it) and Sections 7 (Confidentiality) and 5 (Data) apply in full during a Trial. Product Genius does not reduce its data protection or security obligations because Customer is not yet paying.
3.4 Conversion and Trial data. Customer may convert a Trial to a paid subscription by executing an Order Form. If a Trial expires without conversion, Product Genius will delete Customer Data associated with the Trial in accordance with the DPA. Configuration and results generated during a Trial carry over if Customer converts within SIXTY (60) days of Trial expiry.
3.5 Results. Performance results observed during a Trial are specific to Customer’s storefront, catalogue, and traffic during the evaluation period and are not a warranty or prediction of future results.
3.6 Trial Order Forms. Where the Parties execute a Trial Order Form, that document governs the Trial and prevails over this Section 3 to the extent of any inconsistency, including as to the trial period, scope, and the limitation of Product Genius’s liability. This Section 3 continues to apply to the extent the Trial Order Form is silent. Sections 3.3 and 3.5 apply to every Trial and are not varied by a Trial Order Form.
4. Support
Where an Order Form or Enterprise Terms Exhibit invokes the SLA, Product Genius will provide Support in accordance with the SLA, using commercially reasonable efforts to respond within the target response times stated in the applicable Order Form. Where no Order Form or Enterprise Terms Exhibit invokes the SLA, Product Genius will provide Support through its standard channels during business hours (9:00 a.m. to 6:00 p.m. US Eastern, business days), which is Customer’s sole Support entitlement.
5. Data
5.1 Ownership. Customer retains all right, title, and interest in Customer Data. These Terms grant Product Genius no rights in Customer Data other than those expressly stated.
5.2 License to operate the Services. Customer grants Product Genius and its sub-processors a worldwide, limited-term, non-exclusive license to host, copy, transmit, process, and display Customer Data solely to provide, secure, and support the Services and as permitted by the DPA.
5.3 Personal Data. Where Product Genius processes Personal Data on Customer’s behalf, the DPA applies and governs that processing. In the event of a conflict between these Terms and the DPA as to the processing of Personal Data, the DPA controls.
5.4 Data minimization. Product Genius operates the Subscription Service on a data-minimization basis, which includes no persistence of Shopper direct identifiers and a pseudonymous identifier that is re-identifiable only by Customer. This commitment is a material term of these Terms, and Section 4.5 of the DPA states it in operative detail.
5.5 Customer responsibilities. Customer is responsible for: (a) the accuracy and legality of Customer Data; (b) obtaining all consents, providing all notices, and honoring all opt-outs required by law for Product Genius to process Customer Data as contemplated by these Terms and the DPA, including any notice and choice required for personalization and profiling; and (c) configuring the Subscription Service in accordance with its own privacy commitments to Shoppers.
5.6 Usage Data. Product Genius may generate and use Usage Data to operate, secure, support, analyse, and improve its products and services, and to produce aggregated benchmarks. Product Genius will not publish or disclose Usage Data in a form that identifies Customer, any Authorized User, or any Shopper, except as expressly permitted by the DPA.
5.7 Feedback. Feedback is provided voluntarily and Customer is under no obligation to provide it. Customer grants Product Genius a perpetual, irrevocable, non-exclusive, worldwide, royalty-free license to use, copy, modify, and incorporate Feedback into the Services, and to develop, improve, and provide the Services using it, without attribution to Customer. Subject to that license, providing Feedback transfers no ownership: as between the Parties, Customer retains all right, title, and interest in Customer Data, in Customer’s Confidential Information, and in any intellectual property rights Customer holds in the subject matter of any Feedback. Where Feedback is or contains Customer’s Confidential Information, Product Genius may use it as permitted by this Section but remains bound by Section 7 with respect to its disclosure, and this Section grants Product Genius no right to identify Customer as the source of any Feedback.
5.8 Product Genius Technology. Product Genius and its licensors own all right, title, and interest in and to the Services, including the Subscription Service, its software, models, model weights, algorithms, training methods, know-how, Documentation, and all improvements, derivatives, and modifications to any of them, together with all intellectual property rights in them (“Product Genius Technology”). These Terms grant Customer only the limited right to access and use the Subscription Service stated in Section 2.1. Product Genius Technology is not Customer Data, and nothing in these Terms transfers any ownership interest in it to Customer.
5.9 Outputs. “Outputs” means the recommendations, rankings, scores, merchandising selections, reports, and analytics the Subscription Service generates for Customer’s storefront. As between the Parties, Product Genius grants Customer a worldwide, non-exclusive, royalty-free right to use, display, and retain Outputs for Customer’s own commerce and merchandising purposes, during and after the subscription term. Product Genius retains ownership of the Product Genius Technology used to generate Outputs, and of the underlying models, embeddings, feature representations, and model artefacts, none of which is an Output or Customer Data. Because Outputs are generated by machine learning, they are probabilistic and are not warranted to be accurate or suitable for any particular purpose — Section 9.4 applies.
5.10 Aggregated and de-identified data. Product Genius may create and use aggregated or de-identified data derived from use of the Services, provided it does not identify Customer, any Authorized User, or any Shopper and cannot reasonably be used to re-identify them. Such data is not Customer Data or Personal Data.
5.11 Consent signals. Customer is responsible for obtaining and managing Shopper consent where applicable law requires it. Customer will configure its consent management mechanism so that applicable consent, opt-out, and preference signals are transmitted to the Subscription Service. Product Genius will give effect to signals it receives. Where Product Genius receives no signal, it will process in accordance with Customer’s configuration of the Subscription Service, and Customer is responsible for ensuring that configuration reflects the consents it has obtained.
6. Customer obligations and restrictions
6.1 Account security. Customer is responsible for activity occurring under its account and its Authorized Users’ credentials, and will notify Product Genius promptly of any suspected unauthorized access.
6.2 Restrictions. Customer will not, and will not permit any Authorized User or third party to: (a) sell, resell, sublicense, rent, or otherwise make the Subscription Service available to any third party except as expressly permitted; (b) reverse engineer, decompile, or attempt to derive the source code or underlying models of the Subscription Service, except to the extent that restriction is unenforceable under applicable law; (c) copy or create derivative works of the Subscription Service; (d) access the Subscription Service to build a competing product or service, or to benchmark it for publication without Product Genius’s consent; (e) introduce malicious code into, or attempt to gain unauthorized access to or disrupt, the Subscription Service; (f) remove or obscure any proprietary notice; or (g) use the Subscription Service in violation of the AUP or applicable law.
6.3 Sensitive data. Customer will not configure the Subscription Service to transmit to Product Genius, and will use reasonable measures to avoid transmitting, the categories of sensitive data identified in Section 2.1 of the AUP and Section 4.6 of the DPA, including payment card data, government identifiers, financial account credentials, protected health information subject to HIPAA, biometric or genetic identifiers, special categories of personal data within Article 9 of the GDPR, or precise geolocation. The Subscription Service is not designed to process these categories and Product Genius does not require them to deliver personalization.
6.4 Suspension. If Customer’s use materially threatens the security, integrity, or availability of the Subscription Service or violates the AUP, Product Genius may suspend the affected use. Except where an immediate threat requires otherwise, Product Genius will give Customer notice and a reasonable opportunity to remedy before suspending, will limit any suspension to the affected use, and will restore access promptly once the issue is resolved.
7. Confidentiality
7.1 Obligation. Each Party will protect the other’s Confidential Information with at least the degree of care it uses for its own confidential information of similar importance, and no less than reasonable care. Neither Party will use or disclose the other’s Confidential Information except as necessary to perform its obligations or exercise its rights under these Terms.
7.2 Permitted disclosure. A Party may disclose Confidential Information to its employees, Affiliates, contractors, and professional advisors who need it and who are bound by confidentiality obligations at least as protective as this Section 7. The disclosing Party remains responsible for their compliance.
7.3 Exclusions. Confidential Information does not include information that: (a) was known to the recipient without obligation of confidence before disclosure; (b) becomes publicly available without breach; (c) is received from a third party without obligation of confidence; or (d) is independently developed without use of the discloser’s Confidential Information.
7.4 Compelled disclosure. A Party may disclose Confidential Information to the extent required by law or legal process, provided it gives the other Party prompt prior notice where legally permitted and reasonable cooperation, at the other Party’s expense, to seek protective treatment.
7.5 Duration and remedies. These obligations continue for FIVE (5) years after disclosure, and indefinitely for trade secrets and Customer Data. Each Party acknowledges that breach of this Section 7 may cause irreparable harm for which monetary damages are inadequate, and that the other Party may seek injunctive relief without posting bond.
8. Fees, billing, and taxes
This Section states how billing works. The amounts, billing frequency, payment terms, and billing method for a particular subscription are set out in the applicable Order Form, and where an Order Form states something different from this Section, the Order Form controls.
8.1 Fees. Customer will pay the Fees stated in the Order Form or, for a Self-Service Subscription, presented at the point of purchase. Except as expressly provided in these Terms, Fees are non-refundable and payment obligations are non-cancellable.
8.2 Billing method. Fees are billed either (a) through the application marketplace through which Customer installed the Subscription Service, or (b) directly by Product Genius by invoice, as stated in the Order Form. Where an Order Form specifies direct invoicing, that Order Form governs billing in place of marketplace billing for the Services it covers.
8.3 Invoices and disputes. Invoiced Fees are due within thirty (30) days of the invoice date unless the Order Form says otherwise. Customer may withhold an amount it disputes in good faith, provided it pays the undisputed balance, notifies Product Genius of the basis for the dispute before the due date, and cooperates to resolve it promptly.
8.4 Late payment. For undisputed amounts more than thirty (30) days overdue, Product Genius may charge interest at the lesser of 1.0% per month or the maximum permitted by law, and may suspend the Services on thirty (30) days’ written notice if the amounts remain unpaid.
8.5 Renewal pricing. For subscriptions under an Order Form, Product Genius may change Fees effective at the start of a renewal term by giving Customer written notice at least SIXTY (60) days before the end of the then-current term. Where an Order Form states a renewal price protection, that protection applies for the term stated in it. For a Self-Service Subscription, Product Genius may change Fees effective from the start of a billing period on at least THIRTY (30) days’ notice, and any change is additionally subject to the marketplace operator’s own approval process; Customer may decline the change by uninstalling the Product Genius application before it takes effect.
8.6 Taxes. Fees exclude taxes. Customer is responsible for all sales, use, VAT, GST, and similar taxes arising from its purchase, excluding taxes on Product Genius’s net income, property, or employees. Customer will provide a valid exemption certificate where applicable.
9. Warranties and disclaimers
9.1 Subscription Service warranty. Product Genius warrants that during a paid subscription term the Subscription Service will perform materially in accordance with its Documentation. If it does not, Product Genius will use commercially reasonable efforts to correct the non-conformity at no additional charge. If Product Genius fails to do so within THIRTY (30) days of Customer’s written notice, Customer may terminate the affected Order Form — or, for a Self-Service Subscription, its subscription — and receive a pro-rata refund of prepaid, unused Fees for the terminated portion of the term. This is Customer’s exclusive remedy for breach of this Section 9.1.
9.2 Mutual warranties. Each Party warrants that it has the legal power to enter into these Terms and that it will comply in all material respects with laws applicable to its performance, including applicable data protection, anti-corruption, and export control laws.
9.3 Security and compliance warranty. Product Genius warrants that it will maintain the Security Measures and will not materially reduce the overall level of security provided during a subscription term or Trial.
9.4 Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 9, THE SERVICES ARE PROVIDED “AS IS” AND PRODUCT GENIUS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PRODUCT GENIUS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ALL ERRORS WILL BE CORRECTED, OR THAT THE SERVICES WILL ACHIEVE ANY PARTICULAR CONVERSION, REVENUE, OR MERCHANDISING OUTCOME. THE SUBSCRIPTION SERVICE USES MACHINE LEARNING AND PRODUCES PROBABILISTIC OUTPUTS; CUSTOMER IS RESPONSIBLE FOR REVIEWING ITS CONFIGURATION AND FOR DECISIONS IT MAKES BASED ON THOSE OUTPUTS.
10. Indemnification
10.1 By Product Genius. Product Genius will defend Customer against any third-party claim alleging that the Subscription Service, as provided by Product Genius and used in accordance with these Terms, infringes that third party’s patent, copyright, trademark, or trade secret rights in the United States or any other jurisdiction in which Customer is authorized to use the Subscription Service, and will indemnify Customer for damages and reasonable attorneys’ fees finally awarded or agreed in settlement.
10.2 Exclusions. Section 10.1 does not apply to claims arising from: (a) use of the Subscription Service in breach of these Terms, the AUP, or law; (b) Customer Data or Customer’s catalogue, content, or storefront, but only to the extent the claim arises from the content of Customer Data itself and not from Product Genius’s processing of it through the Subscription Service; (c) third-party products, data, or services not provided by Product Genius; (d) modifications to the Subscription Service not made by Product Genius; (e) combination of the Subscription Service with items not provided by Product Genius, where the claim would have been avoided absent the combination, excluding integration with Customer’s e-commerce platform as contemplated by these Terms; (f) Customer’s custom specifications, which does not include standard configuration of the Subscription Service using its built-in features; or (g) continued use after Product Genius has notified Customer to stop because of a claim.
10.3 Remedies. If the Subscription Service is or may be held to infringe, Product Genius may at its expense procure the right for Customer to continue using it, modify or replace it so it is non-infringing without material loss of functionality, or, if neither is commercially reasonable, terminate the affected Order Form and refund prepaid, unused Fees. Sections 10.1 through 10.3 state Product Genius’s entire liability and Customer’s exclusive remedy for intellectual property infringement.
10.4 By Customer. Customer will defend Product Genius against any third-party claim arising from Customer Data or Customer’s use of the Subscription Service in breach of these Terms, the AUP, or applicable law, and will indemnify Product Genius for damages and reasonable attorneys’ fees finally awarded or agreed in settlement. This Section 10.4 does not apply to any claim to the extent it arises from Product Genius’s breach of the DPA (including the Security Measures), or from Product Genius’s negligence or misconduct.
10.5 Procedure. The indemnified Party will notify the indemnifying Party promptly in writing (though a delay relieves the indemnifying Party only to the extent it is prejudiced), give the indemnifying Party control of the defence and settlement, and provide reasonable cooperation at the indemnifying Party’s expense. The indemnifying Party will not settle a claim in a way that imposes a non-monetary obligation on, or admits fault by, the indemnified Party without its consent. The indemnified Party may participate with its own counsel at its own expense.
11. Limitation of liability
11.1 Exclusion of indirect damages. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, OR FOR LOST PROFITS, LOST REVENUE, OR LOSS OF GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY.
11.2 Cap. EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS AND ALL ORDER FORMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER FOR THE SERVICES IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, MEASURED AS FOLLOWS:
- (a) where the claim arises under or relates to a single Order Form, the Fees paid or payable under that Order Form;
- (b) where the claim arises under or relates to more than one Order Form, the Fees paid or payable under all Order Forms to which the claim relates, and a single cap applies across all such Order Forms and all claims relating to them; and
- (c) where Customer has a Self-Service Subscription, the Fees paid or payable by Customer for the Services.
For the purposes of this Section 11.2, Customer and its Affiliates are treated as a single Customer and share a single cap.
11.3 Exclusions from the cap. Section 11.2 does not apply to: (a) Customer’s obligation to pay Fees due; (b) either Party’s indemnification obligations under Section 10; (c) either Party’s gross negligence, willful misconduct, or fraud; (d) either Party’s breach of Section 7 (Confidentiality); or (e) liability that cannot be limited under applicable law. These exclusions apply equally to both Parties.
11.4 Security Incidents. For clarity, and except as expressly modified by an Enterprise Terms Exhibit, Product Genius’s liability arising from a Security Incident or from breach of the DPA (including the Security Measures) will not exceed TWO (2) times the Fees paid or payable by Customer for the Services in the twelve (12) months immediately preceding the Security Incident, in place of the limitation in Section 11.2.
11.5 Basis of the bargain. The Parties agree that the limitations in this Section 11 are a fundamental element of the pricing and an essential basis of the bargain, and apply even if a limited remedy fails of its essential purpose.
11.6 Trials. During a Trial, Section 3.2(d) applies in place of Section 11.2.
12. Term and termination
12.1 Term. These Terms take effect when Customer first accepts them and continue until all Order Forms have expired or been terminated or, where Customer has no Order Form, until Customer’s subscription ends.
12.2 Subscription term and renewal.
- (a) Order Form subscriptions. The subscription runs for the term stated, and renews on the basis stated, in the Order Form.
- (b) Self-Service Subscriptions. Where Customer subscribes through an application marketplace without an Order Form, the subscription runs for the recurring billing period presented at the point of purchase and renews automatically for successive periods of the same length until Customer cancels. Uninstalling the Product Genius application cancels the subscription with effect from the end of the then-current billing period, and starts the deletion period in Section 9 of the DPA. No other notice is required, and Fees paid for the then-current billing period are not refunded.
12.3 Termination for cause. Either Party may terminate these Terms or an affected Order Form if the other Party materially breaches and fails to cure within thirty (30) days of written notice, or immediately if the other Party ceases business operations or becomes subject to an insolvency proceeding not dismissed within sixty (60) days.
12.4 Termination for convenience. Termination of an Order Form other than for cause is governed by that Order Form, including its term, renewal basis, non-renewal notice period, and any early termination rights stated in it. For a Self-Service Subscription, Section 12.2(b) applies and Customer may cancel at any time by uninstalling the Product Genius application. This Section does not limit either Party’s right to terminate for cause under Section 12.3.
12.5 Effect. On termination or expiry: Customer’s right to use the Services ends; Customer will pay all Fees accrued before the effective date of termination; and if Customer terminated under Section 12.3, Product Genius will refund prepaid, unused Fees. Termination of an Order Form does not terminate these Terms; termination of these Terms terminates all Order Forms.
12.6 Confidential Information. On written request following termination, each Party will return or destroy the other’s Confidential Information, except for copies retained in routine backups or as required by law, which remain subject to Section 7.
12.7 Survival. Sections 1, 5.1, 5.6, 5.7, 5.8, 5.9, 5.10, 6.2, 7, 8 (for amounts accrued), 9.4, 10, 11, 12.5–12.7, and 13 survive termination. The license in Section 5.9 to use Outputs survives termination as stated in that Section.
13. General
13.1 Order of precedence. If there is a conflict, the following order controls, but only to the extent of the conflict: (1) the Order Form or Trial Order Form, including its Negotiated Terms section; (2) the Enterprise Terms Exhibit, if attached; (3) the DPA, including the Security Measures in Schedule 2 to it, as to the processing and security of Personal Data; (4) the SLA, where invoked; (5) these Terms; and (6) the AUP.
13.2 Application marketplace distribution. Customer may install the Subscription Service through a third-party application marketplace, including the Shopify App Store. Customer’s relationship with that marketplace operator is governed by the marketplace operator’s own agreements with Customer, which are acknowledged but not incorporated into these Terms and are not part of the order of precedence in Section 13.1. These Terms and the DPA govern the relationship between Product Genius and Customer with respect to the Services. Nothing here limits Customer’s separate obligations to the marketplace operator, and nothing in a marketplace operator’s terms modifies these Terms as between Product Genius and Customer.
13.3 Changes to these Terms. Product Genius may update these Terms prospectively. For Customers with an active Order Form, the version of these Terms in effect on the Order Form effective date applies for the duration of that subscription term, and any material update takes effect at the start of the next renewal term only with Customer’s prior written consent; non-material updates take effect at the start of the next renewal term on at least SIXTY (60) days’ notice. For a Self-Service Subscription, Product Genius will give at least thirty (30) days’ notice by email or in-product, and continued use after the effective date constitutes acceptance. Product Genius will maintain dated archived versions at the URL in the header.
13.4 Governing law and forum. These Terms are governed by the laws of the State of Delaware, USA, excluding its conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods. The Parties submit to the exclusive jurisdiction of the state and federal courts located in the State of Delaware. The governing law of the Standard Contractual Clauses is addressed separately in the DPA and is unaffected by this Section 13.4.
13.5 Escalation. Before filing suit (other than for injunctive relief or non-payment), the Parties will escalate the dispute to a senior executive of each Party and attempt to resolve it in good faith for thirty (30) days.
13.6 Notices. Legal notices must be in writing and are effective on personal delivery, one business day after deposit with a recognized overnight courier (three business days internationally), or on the day of sending by email with “Legal Notice” in the subject line. Notices to Product Genius: legal@productgenius.io, with a copy to 1 Washington Mall, Suite 1086, Boston, MA 02108. Notices to Customer: the email address on the Order Form or, for a Self-Service Subscription, the account administrator’s email. Notices of termination and indemnifiable claims must also be sent by courier.
13.7 Assignment. Neither Party may assign these Terms without the other’s prior written consent, except that either Party may assign in connection with a merger, acquisition, reorganization, or sale of substantially all assets, provided the assignee assumes all obligations and, in the case of assignment by Customer, all amounts due are paid. Any other attempted assignment is void.
13.8 Subcontractors. Product Genius may use subcontractors and sub-processors to deliver the Services. Product Genius remains responsible for their performance and for their compliance with these Terms and the DPA. Sub-processors handling Personal Data are governed by Section 5 of the DPA.
13.9 Publicity and references.
- (a) Anonymized use — no consent or opt-out. Product Genius may describe Customer’s use of the Subscription Service and the results achieved, including performance metrics, in anonymized or de-identified form that does not identify Customer by name, logo, or in a manner from which Customer is reasonably identifiable — for example, “a national apparel retailer.” This right is perpetual and survives termination.
- (b) Named identification — prior consent required. Product Genius may identify Customer by name and logo as a Product Genius customer in a factual customer list on its website, in its application marketplace listing, in sales and investor presentations, at conferences and industry events, on social media, and in internal and diligence materials, only with Customer’s prior written consent.
- (c) Named case studies and results — prior consent required. Product Genius may publish a case study or customer story identifying Customer by name and brand mark describing Customer’s implementation and the results achieved, only with Customer’s prior written consent. Product Genius will send the proposed material to Customer’s primary contact for review before seeking such consent. If Customer objects, Product Genius will not publish the material unless the Parties agree on revisions.
- (d) Consent still required. Product Genius will not, without Customer’s prior written consent: (i) attribute a quotation to Customer or to any named individual; (ii) issue a press release naming Customer; (iii) use Customer’s name or marks in a way that states or implies Customer’s endorsement of any third party; or (iv) disclose Customer’s Confidential Information other than as permitted by paragraphs (a) to (c).
- (e) Relationship to confidentiality. Paragraphs (a) to (c) apply notwithstanding Section 7, and use permitted by them is not a breach of Section 7. Nothing in this Section permits disclosure of Customer Data, security materials, or pricing.
13.10 Relationship. The Parties are independent contractors. Nothing creates a partnership, joint venture, employment, or agency relationship, and neither Party may bind the other.
13.11 Force majeure. Neither Party is liable for delay or failure to perform (other than payment obligations) caused by events beyond its reasonable control, including natural disaster, war, terrorism, civil unrest, labor action, epidemic, governmental action, utility failure, or failure of a third-party network or hosting provider, provided it uses reasonable efforts to mitigate and resume performance. If a force majeure event prevents performance of a material obligation for more than sixty (60) consecutive days, either Party may terminate the affected Order Form on written notice and Product Genius will refund prepaid, unused Fees.
13.12 Export and sanctions. Each Party represents that it is not identified on any US government restricted-party list and is not owned or controlled by any such party. Customer will not permit access to the Services in violation of US or other applicable export control or sanctions laws.
13.13 US federal government end users. The Subscription Service is a “commercial product” and “commercial computer software” under 48 C.F.R. 2.101, provided with only the rights granted in these Terms, consistent with 48 C.F.R. 12.211, 12.212, and 227.7202. This Section supersedes any conflicting FAR or DFARS clause. Additional government rights require a written addendum.
13.14 Third-party beneficiaries. There are no third-party beneficiaries to these Terms.
13.15 Waiver and severability. A waiver is effective only if in writing and signed, and applies only to the specific obligation waived. Failure to enforce a right is not a waiver of it. If a provision is held unenforceable, it will be modified to the minimum extent necessary to make it enforceable, or severed, and the remainder will continue in effect.
13.16 Entire agreement. These Terms, together with the DPA, the AUP, the SLA where invoked, any Enterprise Terms Exhibit, any Order Form or Trial Order Form, and any exhibits attached to an Order Form, are the entire agreement between the Parties regarding the Services and supersede all prior proposals, representations, and understandings on that subject. Amendments must be in writing and signed by both Parties, except as permitted by Section 13.3. Electronic signatures and PDF copies have the same effect as originals.
13.17 Acceptance and signature. These Terms are accepted as described in the introductory paragraph above. These Terms are not separately executed and no signature page to them is required or provided: where the Parties execute an Order Form or Trial Order Form that references these Terms, or Customer subscribes through a supported application marketplace that references these Terms, that execution or subscription constitutes acceptance of these Terms by both Parties.