Polar Master Services Terms

1. Acceptance of the Polar Master Services Terms

These Polar Master Services Terms, together with the Polar Data Processing Addendum, the Polar Privacy Policy, the Polar Acceptable Use Policy and any Order Form, if applicable (collectively, the “Agreement”), govern the website and services provided and/or made available to you ("Supplier" or "you") by Polar Software, Inc. and its Affiliates (“Polar”; “we”, or “us”).

As of the date you first access our website: https://polar.sh (the “Website”) or sign up for, download, install or otherwise access or use our Services(the ”Effective Date”) , you agree that you have read, understand, and accept this Agreement, and you agree to be bound by the terms contained herein and all terms, policies and guidelines incorporated in the Agreement by reference.

If you do not agree to this Agreement, you do not have our permission to, and may not, access our Website or use the Services in any way. Your accessing the Website and/or use of the Services in any way means that you agree to this Agreement, and this Agreement will remain in effect from the Effective Date until terminated according to its terms.

ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

We may make changes to this Agreement from time to time. When we do, we will revise the “Last Updated” date given above. Changes are effective immediately and the new version of the Agreement will supersede all previous versions. If we make material changes, we will notify you by placing a notice on our site or sending you an email to the address specified in your Supplier Account.

You may choose to terminate this Agreement in accordance with Section 17 if you do not agree with the changes. Continued use of our Services after the changes are effective will constitute your acceptance of the updated Agreement.

Except for changes by us as described here, no other amendment or modification of this Agreement will be effective unless in writing and signed by both you and us.

2. Services

2.1. You appoint Polar as your non-exclusive reseller of the Product across all territories where Polar operates.

2.2. In respect of its appointment as a reseller, Polar will provide the following Services:

(i) establishing you as a supplier of Products on Polar's platform and establishing a Supplier Account which provides you with access to the Supplier Dashboard and allows you to view all sales made by Polar and the payments which are due to you for sales of the Product by Polar;

(ii) acting as your non-exclusive reseller of the Product via Polar Checkout across all territories where Polar operates;

(iii) facilitating Product fulfillment by you to Buyers through connecting you to Buyers to enable such Buyer to download and/or access the Product, as applicable; and

(iv) order support and handling Sales Tax, disputes and Chargebacks as between you, Polar and Buyers. 

2.3. From time to time, you may choose to activate optional Additional Services. The Additional Services may be activated via the Supplier Dashboard.

3. Fees

3.1. For each Transaction, subject to Network Rules and applicable law, Polar shall pay you the Standard Price less:

(i) any Sales Tax due or incurred;

(ii) the Polar Fee; and

(iii) any other charges payable by you pursuant to this Agreement.

such amount being the "Supplier Fee."

3.2. The Polar Fee and any charges for Additional Services shall be set out in the Polar Fee Schedule.

4. Tax

4.1. Polar is the reseller of the Product. This structure allows Polar to handle all Sales Tax collection, reporting and remittance. If required to by law, Polar will withhold any and all required taxes, fees and other such amounts from sales proceeds of the Product.

4.2. You understand that Sales Tax for any Product will be calculated, collected, and remitted on the basis of the Product Information provided for each Product. You shall indemnify, defend, and hold harmless Polar from and against all taxes, interest, penalties, assessments, costs of defense, and reasonable attorneys’ fees arising from inaccurate or incomplete Product Information or misclassification and any jurisdictional or nexus challenges attributable to Supplier’s conduct or Product characteristics.

4.3 You will be responsible for any income tax you owe in connection with your use of the Services. In order to satisfy our tax obligations, we collect tax identification information and, in certain circumstances, report this information and payments to tax authorities as legally required. You agree that you will provide us with any information and documents for accurate tax determination and compliance, as we request or as otherwise required. If you fail to provide up to date and accurate tax information, we reserve the right to suspend payments to your Payment Account and/or to terminate your Supplier Account. This includes your providing to Polar adequate information required under applicable laws, such as IRS Forms W-8 and/or W-9 or other information to establish exemptions from withholding. You can see, and make updates to, your tax documentation by visiting your Supplier Account. You will also be responsible for complying with any Payment Processor’s (as defined below) terms and conditions regarding tax withholding and reporting, if applicable.

5. Intellectual Property

5.1. We grant you a non-exclusive and non-transferable right and license during the term of this Agreement to access and use the Supplier Dashboard and your Supplier Account solely to the extent necessary to receive the Services and perform your obligations under the Agreement. We grant you a non-exclusive and non-transferable right and license during the term of this Agreement to place the then-current Polar Trademarks on your website for the purposes of using Polar Checkout, provided that at all times you comply with any brand guidelines made available to you by or on behalf of Polar with respect to such use.

5.2. You hereby grant to Polar a non-exclusive, royalty-free license during the term to: (i) market, resell, and distribute the Product to Buyers; (ii) use, reproduce, display, and transmit Product Information and Supplier Trademarks in connection with the Services and to identify Supplier as a client and to use Supplier’s Trademarks in client lists, websites, and marketing materials, subject to reasonable trademark usage guidelines provided in writing by Supplier; and (iii) create, use, and maintain derivative works of integration materials, metadata, Product Information, and related materials solely as necessary to provide or improve the Services. Polar may sublicense the foregoing rights to Polar’s Affiliates and to third-party service providers (including Payment Processors, acquirers, Card Networks, fraud screening vendors, support providers, and hosting providers) solely to perform or support the Services.

5.3. Polar agrees not to:

(i) modify the Product or create derivative works thereof;

(ii) merge the Product with other software or Services; 

(iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code (if applicable) for the Product; 

(iv) disclose to third parties the results of any benchmarking tests performed on the Product without your prior written consent (if applicable); or 

(v) otherwise use, copy or distribute the Product except as expressly allowed hereunder.

For clarity, these restrictions apply to Supplier’s Product and do not restrict Polar’s use of Polar’s own technology or data analytics derived from Polar Checkout, provided no Supplier Confidential Information is disclosed.

5.4. Supplier shall indemnify, defend, and hold harmless Polar, its Affiliates, and their respective officers, directors, employees, and agents from and against any losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from any claim that the Product, Supplier Trademarks, Supplier URLs or Product Information infringes, misappropriates, or otherwise violates any Intellectual Property Right of a third party. If the sale and/or use of the Product is or is likely to be enjoined, Supplier shall promptly, at its expense, (i) procure the right for Polar to continue providing the Services in connection with the Product; (ii) modify the Product to be non-infringing without materially diminishing functionality; or (iii) replace the Product with a non-infringing product of substantially equivalent functionality. Supplier’s obligations under this Section are not subject to any limitation of liability.

Polar will promptly notify Supplier of any such claim and provide reasonable cooperation at Supplier’s expense. Supplier shall control the defense and settlement of the claim, provided Supplier may not settle any claim that imposes an admission of liability on Polar, requires payment by Polar, or imposes non-monetary obligations on Polar without Polar’s prior written consent.

5.5. Other than expressly provided for in this clause 5, you and your licensees retain ownership of all right, title and interest in and to the Product, Product Information and any related documentation and Supplier Trademarks, and all Intellectual Property Rights therein, and Polar shall acquire no rights therein except as expressly set forth in the Agreement. You will own all rights, title and interest in all developments of and enhancements to the Product. Polar will take no action which may adversely affect or impair your ownership of such materials and rights. Similarly, Polar and its licensees retain ownership of all right, title and interest in and to the Polar Dashboard, Polar Checkout and the Services and any related documentation, Polar Trademarks and all Intellectual Property Rights related thereto, and you shall acquire no rights therein except as expressly set forth in the Agreement.

6. Transactional and Product Support

6.1. Polar agrees to provide first tier transactional support to Buyers (“Transactional Support”). Transactional Support includes handling requests for refunds, Chargebacks, payments, subscription cancellations, reconciliation and initial order-related support. For the avoidance of doubt, any ongoing customer service and after-sales support in respect of the Product, including, but not limited to, technical and/or delivery level support (e.g., Service Level Agreements) in accordance with the terms agreed between you and each Buyer (“Product Support”) shall be your sole responsibility.

6.2. You agree to provide all reasonably requested information, documents, and assistance within 72 hours to enable Polar to provide Transactional Support, enable refund or Chargeback representment and to ensure the swift and effective resolution of any Buyer query or complaint.

6.4. You warrant that you will provide any Product Support. You shall maintain access to the Product through the end of each paid subscription period or provide pro-rated refunds if the Product is not available, to mitigate Chargebacks and ensure compliance with applicable law.

7. Payments

7.1. Polar will report to you and pay you in USD, unless use of another currency has been agreed between you and Polar. If a payment requires currency conversion Polar will disclose the conversion rate and any foreign exchange margin charged in advance of the conversion.

7.2. Polar will initiate payments of Supplier Fees on your request, provided the balance due equals or exceeds the then-current minimum payment threshold. Please be advised that payments are made through third-party payment processors (each a “Payment Processor”) and your receipt of payments may be subject to delays of 10 Business Days or longer following our initiation. Notwithstanding the foregoing, subject to applicable law and Network Rules, Polar may establish, increase, or maintain a reserve, delay or suspend payments, or require Supplier to prefund liabilities, in Polar’s reasonable discretion, based on risk factors including, without limitation, Chargeback rates, refund rates, Product risk, regulatory inquiries, suspected fraud, or failure to provide requested information. For Suppliers who have been suspended and any Transactions which Polar has determined in its sole discretion are high-risk, such payment delays may be up to 120 days. Where practicable, Polar will provide notice of any reserve, delay, or suspension and the reasons therefor, subject to applicable law and Network Rules. Polar may withhold, reverse, or set off amounts against any actual or reasonably anticipated liabilities, including Chargebacks, refunds, Card Network fines, taxes, penalties, investigation costs, and reasonable attorneys’ fees.

7.3. When we pay you in connection with the Services, we use a Payment Processor to make payment to you through a payment account (the “Payment Account”) linked to your Supplier Account. The processing of payments will be subject to the terms, conditions and privacy policies of the applicable Payment Processor which you agree to be bound by when agreeing to the Agreement or using the Polar Services. You can see more information on our current Payment Processors on our Payment Processor Page, which is incorporated into this Agreement. We are not responsible for any error by, or other acts or omissions of, the Payment Processor. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment.

7.4. Where any credit is due to a Buyer due to service level or similar failure by you or in the Product, no credit will be given to you for any previously applied Polar Fee and the Polar Fee will be applied to the gross amount of any amounts charged prior to deduction of any credit.

8. Set Off

8.1. Subject to applicable law and Network Rules, and without prejudice to any other rights or remedies we may have, you hereby authorize Polar to set off by whatever means the whole or any part of your liability to us under this Agreement against any funds, sums or other amounts owed to you under this Agreement, including, but not limited to:

(i) liability for refunds and Chargebacks and associated costs and fees incurred in accordance with clause 10.4;

(ii) any fines issued for non-compliance with the Network Rules;

(iii) liabilities for breach of our Acceptable Use Policy; 

(iv) liabilities for fraudulent or illegal use of our Services; or

(v) other liabilities as set out in this Agreement.

8.2. You agree that we may exercise the right of set-off in clause 8.1 at any time, without further notice to you, whether your liability is present or future, liquidated or unliquidated, actual or contingent. In the event such set-off does not fully reimburse us for the liability owed, you shall immediately pay us a sum equal to any shortfall.

8.3. If there are insufficient funds in your Payment Account, in Polar’s sole discretion, at any time to cover potential refunds, Chargebacks, charges or other liabilities you may owe to us (together "Liabilities"), you agree to either add additional funds to your Payment Account as requested by Polar, or agree that we may exercise the right of set-off in clause 8.1 at any time without notice to you, whether such liability is present or future, liquidated or unliquidated, actual or contingent. In the event such set off does not fully reimburse us for the liability owed, you shall immediately pay us a sum equal to any shortfall, and we reserve the right to suspend part or all of the Services until the deficit is paid.

8.4. Polar is not obliged to pay any Supplier Fees associated with activities or Products which it considers in its sole discretion to be fraudulent, unlawful or illegal under any relevant law or regulation or which infringe upon the established rights of a third party. We may suspend your Supplier Account and retain any Supplier Fees, or terminate this Agreement, if: 

(i) we determine in our sole discretion that you are ineligible for the Services because of significant fraud risk, or any other risk of unlawful or illegal activity associated with the Product or your Supplier Account;

(ii) we determine in our sole discretion that you have intentionally or willfully taken any action which materially misleads or directly defrauds a Buyer or Polar;

(iii) any applicable law or Network Rules requires us to do so;

(iv) we determine in our sole discretion that the sale of the Product infringes upon the established rights of a third party; or 

(v) we are otherwise entitled to do so under this Agreement.

9. Supplier Obligations

9.1. You shall promptly, on our request, provide accurate, complete and updated information about Supplier and its business, which may include information about its financial status and creditworthiness, its activities, its shareholders (and ultimate beneficial owners), its compliance with applicable laws, the Product and Supplier URLs (as defined below), as we or our third-party KYC/KYB verification partners request from time to time (the "Supplier Information").

9.2. You shall ensure that the Supplier URLs provide clear and accurate information about the Product, clearly reflect Polar's status as a reseller and comply with Polar’s policies, the Network Rules and applicable law.

9.3. Polar may, in its discretion, request changes to the Supplier URLs (including any policies and/or terms displayed on the Supplier URLs) to:

(i) ensure it is clear that Polar acts as a reseller of the Product;

(ii) ensure compliance with Polar's policies, the Network Rules and/or applicable law; and/or

(iii) prevent or reduce Chargebacks.

9.4. Supplier shall provide correct and complete information about the Product to Polar including (for each Product): a Product description and specification, tax categorization, pricing, the relevant Supplier URL, and any other information which Polar requests from time to time (together the "Product Information"). Supplier may amend its existing Product Information or add new Products or Supplier URLs from time to time, in which case the same obligations as apply to existing Product Information shall apply.

9.5. Supplier shall ensure that all Product Information and Supplier URLs include clear and conspicuous disclosures required by applicable U.S. federal and state consumer protection laws and laws governing automatic renewal and negative option offers (including, as applicable, the Restore Online Shoppers’ Confidence Act and state automatic renewal laws), including material terms, pricing, renewal intervals, cancellation timing and method, refund eligibility and that charges will recur until canceled. Supplier shall provide a direct, readily available online cancellation mechanism that is effective immediately or at the next billing cycle as required by law.

9.6 Supplier shall cooperate with Polar to ensure that the distribution of Buyer notices, including notices of subscription price changes and notices regarding the imposition or change of applicable Sales Tax, disclosures and renewal reminders (together “Buyer Notifications”), and cancellation functionality are coordinated within Polar Checkout. In the event that Supplier elects to disable some or all Buyer Notifications in order to manage such communications directly with Buyers (such election, "Supplier-Managed Communications"), Supplier assumes full and sole responsibility for providing all Buyer Notifications that would otherwise have been provided by Polar as Supplier-Managed Communications. Supplier shall ensure that all Supplier-Managed Communications comply with: (i) all applicable laws; (ii) the timing requirements prescribed by such laws; (iii) the Network Rules; and (iv) Polar's policies. Polar reserves the right, in its sole discretion and upon reasonable notice to Supplier, to re-enable Buyer Notifications and resume direct communications with Buyers if Polar determines that: (i) Supplier has failed to comply with its obligations under this Section; (ii) Supplier-Managed Communications have resulted in an excessive rate of Chargebacks, refunds, or consumer complaints; or (iii) re-enablement is necessary to ensure compliance with applicable law, the Network Rules, or requirements of any Payment Processor, acquirer, or Card Network.

9.7 Supplier represents and warrants unconditionally that all Supplier Information and Product Information it provides to Polar is correct and up to date and undertakes to provide Polar with at least thirty (30) calendar days' prior written notice of any material change to the information provided.

9.8. Polar reserves the right to reject or suspend the sale of any existing, new or changed Product if:

(i) Polar determines (in its absolute discretion) that the Product falls outside of the Acceptable Use Policy or is otherwise outside of Polar’s risk tolerance;

(ii) Supplier fails to provide Product Information or Supplier Information requested to Polar’s satisfaction; or

(iii) Supplier fails to make changes to the Supplier URL(s) requested by Polar in accordance with clause 9.3.

9.9. Supplier shall not label any alternative payment flows that collect, store, or process cardholder data or as “Polar Checkout”.

10. Refunds and Chargebacks

10.1. You acknowledge and agree that as Polar is the seller of the Product to Buyer, you shall not issue any invoice or make any demand for payment to any Buyer in a Transaction. If you agree with Buyer to issue a refund or repay any of the Standard Price, you will not make this payment directly to Buyer but will initiate the payment through your Supplier Dashboard.

10.2. As the seller, Polar shall be entitled to cancel a Transaction and grant Buyer a refund of the full price paid if:

(i) Buyer requests a refund within ten (10) days of the date of a one-off Transaction or, in the case of a subscription service, within 30 days from the date on which the subscription was last renewed AND Polar determines, in its sole discretion, that a refund is in the best interest of both Polar and Supplier having reviewed the stated reason for the refund request and any usage information;

(ii) Polar reasonably believes that the Transaction was made in error or fraudulently;

(iii) Polar reasonably believes the Transaction may become subject to a Chargeback;

(iv) Supplier has not responded to Polar’s request for Transactional Support assistance within 72 hours pursuant to Section 6.2; or

(v) required by any applicable law, regulation, Payment Processor or Network Rules.

10.3. If Polar determines, in its sole discretion, that one or more of the Products, or the Products as a whole, have an excessive Chargeback or refund rate, Polar shall be entitled to immediately:

(i) suspend the sale of all or a portion of the Product(s) through one, multiple or all payment methods;

(ii) implement additional content or controls to the Polar Checkout and/or associated processes (such as email notifications to Buyers);

(iii) terminate the Services with immediate effect in accordance with clause 17.3; and/or

(iv) share information about your business and/or your Payment Account and/or Supplier Account with its Payment Processor, acquirers and the Card Networks.

10.4. Polar may utilize Chargeback prevention services offered by Payment Processors or other third-party service providers to receive early notification of a potential Chargeback before such Chargeback is formally initiated (each a "Chargeback Prevention Alert"). For each Chargeback Prevention Alert received, Supplier shall reimburse Polar for a Chargeback prevention fee of $25 USD (the "Chargeback Prevention Fee"), as may be updated by Polar on notice. If, following receipt of a Chargeback Prevention Alert, the underlying dispute does not result in an actual Chargeback, Polar shall credit or refund the Chargeback Prevention Fee to Supplier. For the avoidance of doubt, if the dispute proceeds to an actual Chargeback, the Chargeback Prevention Fee shall be non-refundable and shall be in addition to any amounts owed by Supplier under Section 10.5.

10.5 If Polar is subject to a Chargeback or issues a refund, Supplier shall reimburse Polar for: (i) the full amount of the Chargeback or refund including any additional amounts required to cover the Polar Fees which Polar shall be entitled to retain regardless of any such Chargeback or refund; (ii) all associated fees, penalties, and assessments (including from Card Networks, acquirers, and Payment Processors); (iii) reasonable representment and investigation costs; and (iv) a per-incident fee of up to $30 USD, as updated by Polar on notice, in each case as permitted by applicable law and Network Rules.

11. Representations and Warranties

11.1 You represent and warrant to Polar that:

(i) the Supplier Information and Product Information you have provided is, and continues to be, accurate and up to date;

(ii) you are the owner of each Product or that you are legally authorized to act on behalf of the owner of such Product for the purposes of the Agreement;

(iii) the Product complies with our Acceptable Use Policy and the sale of the Product is in compliance with all Network Rules and applicable laws and you shall provide Buyers with Product Support and access to Transactional Support in a manner as it is required by applicable law, including by way of a direct link to enable cancellation of a Product, if required by applicable law;

(iv) you own and operate the Supplier URL(s) listed in your application for a Supplier Account and/or as otherwise approved by Polar from time to time;

(v) you will not use the Services to facilitate the sale of Products on websites or applications other than the Supplier URL(s);

(vi) the Product is free from defects and fit for any purpose agreed between you and Buyer or otherwise fit for any purpose for which such Product is generally used;

(vii) you have the necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder and to permit Polar to perform the Services contemplated under the Agreement;

(viii) there is no action, suit, regulatory action, or proceeding at law or in equity now pending or, to your knowledge, threatened by or against or affecting you which would substantially impair your right to carry on your business as contemplated herein or adversely affect your financial condition or operations;

(ix) neither you, nor any controlling entity or person associated with your business, has ever been or is currently:

(a) suspended or terminated by a Payment Processor, acquirer, Card Network, financial institution or other operator of a payment system due to fraud, unfair or deceptive acts or practices, a breach of law, regulation or Network Rules; or

(b) subject to any action taken in the prior ten (10) years by any regulatory agency or body involving fraud or unfair or deceptive acts or practices.

(x) your use of the Services and the delivery and performance by you of your obligations under the Agreement do not and will not conflict with or violate any agreement or other instrument with a third party applicable to you or otherwise infringe upon the rights of any third party (including Intellectual Property Rights);

(xi) you have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including, without limitation, any relevant Data Protection Laws) relating to you, the Products, your use of the Services, and your actions and omissions related to the Services and the Products; 

(xii) you will implement the Polar Checkout in strict compliance with Polar's policies and guidance, and you will not conceal information required under Polar's policies, the Network Rules or applicable law from Buyers;

(xiii) you have not and will not engage in any tactics to avoid fraud and risk monitoring programs established by Polar or any Payment Processor, acquirer, Card Network, financial institution or other operator of a payment system, including, but not limited to, balancing or distributing sales transaction volume or sales transaction activity among multiple Supplier Accounts where the purpose of such balancing is to avoid fraud and risk management programs; using shell companies to apply for additional Supplier Accounts; or attempting to reduce excessive Chargebacks through the use of services that prevent Chargebacks without also assessing the cause of the excessive Chargeback rate;

(xiv) you will properly display the full Polar Checkout to each Buyer and will ensure that no part of the Polar Checkout presented to Buyers is changed, obscured, contradicted or otherwise altered by any content or function of the Supplier URL;

(xv) you do not and will not engage or instruct/engage others on your behalf to engage in Outbound Telemarketing of any kind, regardless of whether the relevant Products or Services are or will be resold through Polar;

(xvii) you will at all times comply with all applicable Polar policies and the Data Processing Addendum; and

(xviii) you and your owners, officers, and directors: (i) are not the subject of, and are not located in a country or territory subject to, sanctions administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of State, or other applicable authority; (ii) you shall comply with all applicable export control, re-export, and sanctions laws (including the Export Administration Regulations) and shall not make Products available to prohibited end users or end uses; and (iii) you shall comply with anti-bribery and anti-corruption laws, including the U.S. Foreign Corrupt Practices Act.

12. Indemnity

12.1 You agree to indemnify, defend and hold harmless Polar, its Affiliates and their respective employees, officers and directors from and against any and all claims, liabilities, penalties, settlements, judgments, fees (including reasonable legal fees) arising from or in relation to:

(i) any information that you or anyone using your Supplier Account may submit or access in the course of using the Services, including Supplier Information;

(ii) your breach of any representation or warranty in, or violation of the terms of, the Agreement or any agreement or other instrument with a third party applicable to you;

(iii) any violation or failure by you to comply with all applicable laws and regulations in connection with your use of the Services, whether or not described herein; and

(iv) any disputes in respect of the Product.

12.2 Polar will promptly notify you of any such claim and provide reasonable cooperation at your expense. You shall control the defense and settlement of the claim, provided you may not settle any claim that imposes an admission of liability on Polar, requires payment by Polar, or imposes non-monetary obligations on Polar without Polar’s prior written consent.

13. Disclaimer of Warranties and Limitation of Liability

13.1. Polar disclaims any and all warranties, representations and conditions, whether express, implied or statutory regarding the Services to the full extent permitted by law. Without limiting the generality of the foregoing, the Services are provided "as-is" and without warranties of any kind, including, without limitation, any warranties of performance or implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Further, Polar does not make, and has not made, any representation or warranty that the Services are accurate, complete, reliable, current, error-free, or virus-free or that the operation of the Services will be uninterrupted. Some jurisdictions do not allow exclusion of an implied warranty, so this disclaimer may not apply to you.

13.2. To the fullest extent permitted by applicable law, in no event will Polar, its partners, service providers, Affiliates or any of their respective directors, officers, employees or agents be liable to you for any special, incidental, indirect, punitive, exemplary or consequential damages, whether foreseeable or unforeseeable, which may arise out of or in connection with this Agreement, regardless of whether the relevant party has been apprised of the possibility or likelihood of such damages occurring, or whether claims are based or remedies are sought in contract or tort or otherwise. 

13.3. Polar’s aggregate liability is limited to the Polar Fee derived from your Transactions in the six (6) months preceding the event giving rise to liability, except for amounts finally awarded for Polar’s fraud or willful misconduct.

13.4. Notwithstanding the foregoing, neither party limits its liability in respect of (i) fraud or willful misconduct; (ii) death or personal injury; or (iii) any matter for which it would be unlawful for the parties to exclude liability.

14. Confidentiality

14.1. The parties acknowledge that they may share Confidential Information for the purposes of this Agreement. The receiving party shall not use, disclose, or otherwise take any advantage of such Confidential Information, except as expressly permitted in the Agreement.

14.2. Each party shall exercise the same degree of care to avoid the publication or dissemination of the other party's Confidential Information as it affords to its own Confidential Information of a similar nature which it desires not to be published or disseminated, which in any event shall not be less than reasonable care.

14.3. Confidential Information disclosed under the Agreement shall only be used by the receiving party for the purpose of the Agreement or the performance of its obligations hereunder. The receiving party agrees not to use the disclosing party’s Confidential Information for its own benefit or for the benefit of any third party.

14.4. The obligation of the parties not to disclose Confidential Information shall survive the termination or expiry of the Agreement.

14.5. Notwithstanding the foregoing, neither party shall be obliged to protect Confidential Information of the other party which:

(i) is rightfully received by the receiving party from another party without confidential obligation to such party, or

(ii) is known to or developed by the receiving party independently without use of the Confidential Information, or

(iii) is, or becomes, generally known to the public by other than a breach of duty hereunder by the receiving party.

14.6. The receiving party may disclose Confidential Information that is required to be disclosed pursuant to a requirement of a government agency or law so long as the receiving party provides prompt notice to the disclosing party of such requirement prior to disclosure (where permitted under applicable law).

14.7 Polar may also disclose your Confidential Information to Polar’s Affiliates and to third-party service providers (including Payment Processors, acquirers, Card Networks, fraud screening vendors, support providers, and hosting providers) solely to perform or support the Services.

15. Privacy

15.1. Polar will maintain administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of personal information, as described in our Privacy Policy and our Data Processing Addendum.

15.2.The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13 years of age. We do not knowingly collect or solicit personally identifiable information from children under 13 years of age; if you are a child under 13 years of age, please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under 13 years of age, we will delete that information as quickly as possible. If you believe that a child under 13 years of age may have provided us personal information, please contact us at: support@polar.sh.

15.3 You shall implement and maintain appropriate administrative, physical, and technical safeguards consistent with industry standards to protect Buyer and transaction data processed via the Services. You shall comply with all applicable U.S. privacy and Data Protection Laws, including, as applicable, the CPRA, you shall not sell or share personal information obtained through the Services except as expressly permitted herein and by applicable law and you shall obtain any required consents for processing, including for minors aged 13–16 where a sale or sharing would occur.

15.4. You shall promptly (and in any event within 72 hours) notify Polar of any actual or suspected unauthorized access to or acquisition of personal data processed in connection with the Services (a ‘Security Incident’), you shall cooperate in Polar’s investigation and remediation, and you shall bear all costs, fines, and assessments arising from any Security Incident to the extent caused by your acts or omissions. Polar shall have the right, upon reasonable notice, to audit your compliance with this Section no more than once annually or following a Security Incident.

15.5. Each party agrees that it shall, at all times during the term of the Agreement, comply with the terms of the Data Processing Addendum. Each party acts as an independent ‘business’ (or equivalent term) under applicable U.S. state privacy laws with respect to the personal information it independently collects and determines the purposes and means of processing. The parties do not intend to create a processor-service provider relationship. Each party shall honor consumer privacy rights requests it receives for personal information within its control and shall provide reasonable cooperation to facilitate compliance.

16. Dormant Accounts

If you have no sales of any Product for a period of six (6) consecutive months, Polar reserves the right to deactivate your Supplier Account. Dormant Supplier Accounts with a negative balance and no sales activity in the preceding fifteen (15) days will be deactivated immediately.

17. Termination

17.1. Either party may terminate this Agreement at any time by giving the other party at least 30 days’ prior notice in writing.

17.2. Either party may terminate this Agreement by immediate notice in writing to the other if:

(i) the other party commits a material breach of this Agreement which is not remediable, including, for the avoidance of doubt, compliance with the Acceptable Use Policy;

(ii) the other party commits a material breach of this Agreement which is remediable and is not remedied within thirty (30) days of receiving written notice of such breach;

(iii) any consent, license or authorization held by the other party is revoked or modified such that the other party is no longer able to comply with its obligations under the Agreement or receive any benefit to which it is entitled;

(iv) the other party becomes insolvent, makes an assignment for the benefit of creditors, or has a receiver appointed.

17.3. Polar may terminate this Agreement by immediate notice in writing to you if:

(i) it is requested by any of its Payment Processors or a Card Network;

(ii) Polar has reasonable suspicion, or knows, that any of the representations or warranties given in clause 11 was or has become incorrect or false;

(iii) it reasonably suspects fraudulent or criminal activity or non-compliance by you with applicable law or the Network Rules;

(v) one or more of the Products, or the Products as a whole, have a Chargeback Rate which Polar, in its sole discretion, deems to be excessive; or

(vi) in Polar's sole discretion, any of your Products fall outside of the Acceptable Use Policy or you have engaged in inappropriate or unprofessional behavior toward Polar or a Buyer including, but not limited to, in relation to Transactional or Product Support.

17.4. Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination.

18. Rights and Obligations on Termination or Suspension

18.1. Termination or expiration of this Agreement shall not release either party from the obligation to make payment of all undisputed amounts then or thereafter rightly due and payable. 

18.2. On termination of this Agreement or following a suspension in accordance with clause 8.3, 9.7 or 10.3(i), Polar may retain any Supplier Fees as it reasonably determines necessary to settle any outstanding liabilities under this Agreement and/or to cover future Chargebacks and refunds, including refunds which might result from a failure by you to provide and maintain the Products for the full length of any subscriptions running beyond the date of such suspension or termination.

18.3. On termination or expiration of this Agreement for any reason:

(i) Polar will cease to provide the Services and will disable access to any technology (including APIs) related to the performance of the Services, and all rights and permissions granted by Polar under this Agreement shall terminate;

(ii) Polar will, within thirty (30) days of your written request, return to you or destroy (a) all manuals, documentation, Product Information, fee schedules and other written materials provided by you; and (b) all of your Confidential Information, in each case provided that such materials or information are in its possession or under its control and unless Polar is required to retain such information for the provision of ongoing subscriptions to Buyers or to comply with or demonstrate compliance with applicable law.

18.4. Setoff rights, indemnities, confidentiality, privacy/security, tax, dispute resolution, and limitations of liability shall survive termination. Any retained amounts shall be released upon the later of: (i) nine (9) months following termination; (ii) resolution of all known Chargebacks and refunds; and (iii) expiration of the longest Buyer subscription active as of termination, less applicable deductions.

19. Definitions and Interpretation

"Acceptable Use Policy" means Polar’s acceptable use policy set out at: https://polar.sh/legal/acceptable-use-policy

"Additional Services" means the services referred to in clause 3.3;

"Affiliates" means any corporation, partnership, limited liability company or other form of legal entity, which directly or indirectly controls, is controlled by or is under joint control, from time to time;

"Buyer Terms" means the Polar Checkout Buyer Terms available at: https://polar.sh/legal/checkout-buyer-terms;

"Buyer" means a customer who purchases the Product using the Polar Checkout;

"Card" means any form of credit card, debit card or pre-paid card issued under a Card Network;

"Card Network" means Visa, MasterCard, American Express, Discover or comparable bodies which provide Cards and regulate Card acceptance and includes alternative payment methods such as Stripe and PayPal;

"Chargeback" means a procedure whereby an issuing bank or other financial institution charges all or part of an amount of a Checkout Buyer’s credit or debit card transaction back to the acquirer or merchant bank;

"Checkout Recovery" means the Additional Service offered by Polar through which Polar emails a prospective Buyer if they have commenced but not completed the purchase of a Product;

"Confidential Information" means information considered proprietary by the disclosing party, whether written or oral, in any form, including without limitation, information relating to the Services and/or Products, trade secrets, business plans, suppliers, customers, finances, personnel data, and other material non-public information;

"Data Protection Law" means all applicable U.S. federal and state privacy and data protection laws, including, as applicable, the California Consumer Privacy Act, as amended (“CPRA”), the Virginia Consumer Data Protection Act, the Colorado Privacy Act, and similar U.S. state privacy laws, and their implementing regulations;

"Data Processing Addendum" means Polar’s data sharing terms, set out at: https://polar.sh/legal/data-processing-addendum that govern the sharing of personal data between Polar and Supplier in accordance with the Data Protection Laws;

"Intellectual Property Rights" means patents, rights to inventions, copyright and neighboring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, Confidential Information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

"Network Rules" means the collective set of by-laws, rules, regulations, operating regulations, procedures and/or waivers issued by the Card Networks, as amended and/or supplemented from time to time;

"Outbound Telemarketing" means any plan, program, or campaign that is conducted to induce the purchase of Products by use of one or more telephones, and which involves a telephone call initiated by a person or entity other than the consumer;

"Polar" means Polar Software Inc. and its Affiliates;

"Polar Checkout" means the online checkout that Buyers use to purchase the Product, and includes payment methods such as credit card, PayPal, alternative payment methods and ACH;

"Polar Fee" means the margin payable to Polar for the Services in respect of each resale of a Product made by Polar;

"Product" means Supplier's software product and/or digital content agreed to be resold and distributed by Polar, and any subsequent updates and upgrades thereto and includes any associated integration or implementation costs and/or service fees;

"Product Information" shall have the meaning set out in clause 9.4;

"Sales Tax" means any tax or levy chargeable or withheld on Transactions globally, including but not limited to VAT, GST, sales tax and sales & use tax, digital service tax or levy, and corporate withholding taxes, and any associated interest or penalties;

"Services" means the services provided by Polar as further described in clause 2;

"Standard Price" means the price paid by Buyer for the Product, as recommended by Supplier in the Supplier Dashboard;

"Supplier Account" means the account you will set up on the Polar platform in order to be able to use the Services;

"Supplier Dashboard" means the Polar dashboard where you are able to access your Supplier Account, view confirmed sales, amend account settings and access all reports;

"Supplier Fee" shall have the meaning set out in clause 3.1;

"Supplier Information" shall have the meaning set out in clause 9.1;

"Supplier URL(s)" means the address and content of any websites and/or mobile applications owned and operated by you where the Product will be sold using the Services;

"Trademarks" means trademarks, logos, service marks, trade names and logotypes whether registered or otherwise of either party or a Product; and

"Transaction" means a completed sale of the Product (excluding reversals, refunds and other Chargebacks) via Polar Checkout.

19.2. In this Agreement, unless the context requires otherwise:

(i) any clause, schedule or headings in this Agreement is included for convenience only and shall have no effect on the interpretation of the Agreement;

(ii) a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;

(iii) a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;

(iv) a reference to a ’company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;

(v) a reference to a gender includes each other gender;

(vi) words in the singular include the plural and vice versa;

(vii) any words that follow 'include', 'includes', 'including', ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

(viii) a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email); and

(ix) a reference to law is a reference to that law as amended, extended, re-enacted or consolidated from time to time and includes all subordinate legislation made from time to time under that legislation as amended or re-enacted.

20. General

20.1. This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral, in respect of its subject matter.

20.2. Each party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Agreement. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in this Agreement.

20.3. Polar may assign or transfer this Agreement, in whole or in part, to any Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all assets, without Supplier’s consent. Supplier may not assign or transfer this Agreement without Polar’s prior written consent; any prohibited assignment is void.

20.4. Neither party will be liable for any delay or failure to perform due to causes beyond its reasonable control, including acts of God, natural disasters, war, terrorism, labor disputes, governmental actions, utility or telecommunications outages, or failures of third-party hosting providers (a “Force Majeure Event”). The affected party will use commercially reasonable efforts to mitigate the effects of the Force Majeure Event and resume performance promptly.

20.5. Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.

20.6. Except as expressly provided in this Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

20.7. If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.

20.8. Each party shall comply with all laws, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorizations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with this Agreement.

20.9. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venturer of Polar, and you do not have any authority of any kind to bind Polar in any respect whatsoever.

20.10. Any notice (save for notices given in legal proceedings or arbitration) given to a party under or in connection with this Agreement shall be in writing or by email to the address given for the relevant party herein or such other address that a party notifies the other party of at any time and shall be given and deemed received by mail on the second Business Day after postage or, if given by hand, on delivery. Polar's email address for such purposes is legal@polar.sh and Supplier's email address is as provided in the Supplier Account.

20.11. As part of the Services, you may receive communications through the Services, including messages that Polar sends you (for example, via text or email). When signing up for the Services, you can always customize which messages you want to receive from us via your settings within your Supplier Dashboard.

20.12. Supplier shall maintain, at its own expense, throughout the term of the Agreement and for one (1) year thereafter, insurance coverage customary for providers of similar services, including commercial general liability, professional liability (errors and omissions) and cyber liability coverage. Upon request, Supplier shall provide certificates of insurance.

21. Governing Law and Arbitration Agreement

The Federal Arbitration Act governs this arbitration agreement. Any dispute, claim, or controversy arising out of or relating to this Agreement or the Services, including formation, enforceability, or arbitrability, shall be resolved by binding, individual arbitration administered by JAMS under its Streamlined Rules. The seat of arbitration shall be Delaware, and Delaware law (without regard to conflicts of law principles) shall govern this Agreement. The arbitrator shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this arbitration agreement (including class waiver). CLASS ACTION WAIVER: THE PARTIES AGREE THAT ANY PROCEEDINGS SHALL BE CONDUCTED ONLY IN THEIR INDIVIDUAL CAPACITIES, AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION. Notwithstanding the foregoing, either party may seek temporary, preliminary, or permanent injunctive relief in the state or federal courts located in Delaware to protect its Confidential Information, Intellectual Property Rights, or to enforce the arbitration agreement, without waiving arbitration. The parties consent to personal jurisdiction and venue in such courts for these limited purposes. Either party may bring an individual claim in small claims court in Delaware or the state of the defendant’s principal place of business if within that court’s jurisdiction. Within thirty (30) days of first acceptance of this Agreement, a party may opt out of this arbitration agreement by sending written notice to support@polar.sh.