Data Import Agreement

Last Updated: January 7, 2020

1. Introduction.
   1. This data import agreement (this “Data Import Agreement”) forms part of a binding contract between you and Lovingly, LLC (“we,” “us” or “Lovingly”), a Delaware limited liability company with a principal place of business located at 1399 Route 52, Suite 100, Fishkill, New York 12524.
   2. This Data Import Agreement generally governs your use of Lovingly’s data import services (the “Data Import Services”) to migrate your Customer Data from an external source into your account with Lovingly. This migration will help you to seamlessly use your external Customer Data with your Lovingly account and will help Lovingly improve its ability to support and grow your business.
   3. We work hard to ensure that the Data Import Services are compatible with current retailer systems and that they will efficiently transfer your data to your Lovingly account. However, given the rapid pace of technological change, we cannot guarantee that your data will always be error free after migration. Sections 5 and 6 below discuss this limitation in more detail.
   4. This Data Import Agreement incorporates the documents and terms described in Section 2 below. Specifically, your right to use Data Import Services is granted pursuant to the Retailer Terms of Service. This Data Import Agreement, together with such incorporated documents and terms is referred to as this “Agreement.”
2. Incorporated Documents; Conflicts.
   1. This Data Import Agreement incorporates the following documents by reference:
      1. the Retailer Terms of Service; and
      2. any other agreements, exhibits, appendices, addenda or other terms incorporated by reference in any of these agreements.
   2. If there is any conflict between the terms of this Data Import Agreement, the Retailer Terms of Service or any other incorporated terms or documents, such terms or documents will have the following order of precedence (from most to least controlling):
      1. this Data Import Agreement (for matters pertaining exclusively to your use of the Data Import Services);
      2. the Retailer Terms of Service; and
      3. any other terms or document incorporated herein.
3. Definitions.
   1. “Customer” means any individual or entity that has browsed, inquired about or purchased your products or services.
   2. “Customer Data” means information, images, text, files, materials, content and other data that Customers have transmitted, uploaded or sent to you, including but not limited to, names, addresses, phone numbers, email addresses, and card messages.
   3. “Retailer Terms of Service” means the terms of service located at https://www.lovingly.com/legal/us/retailer-terms, which describe the general terms of the commercial relationship between you and Lovingly.
4. Right to Customer Data.
   1. You hereby represent and warrant that you have all right, title and interest in the Customer Data necessary to transfer it to, and use it in connection with, your Lovingly account.
   2. To the extent that any Customer has granted you any right, title, interest or license to use their Customer Data, you hereby extend such right, title, interest or license to Lovingly. In addition, you shall not object to our use of Customer Data to provide or improve services to you or other retailers, market to Customers, or to detect and analyze fraud. Notwithstanding the foregoing, neither you nor Lovingly shall use any Customer Data in a manner that violates the privacy policy located at https://www.lovingly.com/legal/privacy-policy/.
5. Warranty Disclaimer. THE DATA IMPORT SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITH NO REPRESENTATION OR WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, LOVINGLY AND ITS EMPLOYEES, MANAGERS, OFFICERS AND AGENTS (COLLECTIVELY, THE “LOVINGLY PARTIES”) DISCLAIM ANY IMPLIED OR STATUTORY WARRANTY, INCLUDING ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. THE LOVINGLY PARTIES MAKE NO WARRANTY OF ANY KIND THAT THE DATA IMPORT SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
6. Limitation of Liability.
   1. No Consequential or Incidental Damages. IN NO EVENT SHALL ANY OF THE LOVINGLY PARTIES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH YOUR USE OF THE DATA IMPORT SERVICES OR ANY BREACH OF THIS DATA IMPORT AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT LOVINGLY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
   2. Maximum Liability. IN NO EVENT SHALL THE LOVINGLY PARTIES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS DATA IMPORT AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID BY YOU TO LOVINGLY PURSUANT TO THIS AGREEMENT IN THE LAST CALENDAR YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
   3. If Remedy Fails Essential Purpose. THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 6 SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS DATA IMPORT AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

Acknowledgement. You acknowledge and agree that the parties entered into this Data Import Agreement in reliance upon the limitations of liability set forth in Section 6, that the same reflect an allocation of risk between the parties, and that the same form an essential basis of the bargain between the parties.