Last updated: October 6, 2026
These ZyG Partner Terms of Use (the “Partner Terms”), together with each Order Form (as defined below), the Schedules hereto and the terms incorporated by reference (collectively, these “Terms”), are issued by ZyG Edge Inc. (“ZyG”) and govern the access to and use of the Platform and the Services (each as defined below) by the partner identified in the applicable Order Form (“Partner”), with effect from the Effective Date. By executing an Order Form (including by electronic signature or click-to-accept) or by accessing or using the Services, Partner agrees to be bound by these Terms. For purposes of these Terms, ZyG and Partner will be referred to each as a “Party” and together as “Parties”.
ZyG has developed an end-to-end technology platform and related services, as set forth herein and in the Order Form (as defined below), to scale eCommerce products (the “Platform”), and partners with brands and product owners to scale their direct-to-consumer eCommerce products by executing online aspects of such scaling through the Platform (the “Services”). Partner manufactures, or has manufactured by a third party, certain Products (as defined below) and wishes to use the Services with respect to such Products, subject to and in accordance with these Terms.
Definitions
In addition to terms defined elsewhere in these Terms, the following capitalized terms shall have the meanings set forth below. The preamble set forth above forms an integral part of these Terms and shall have the same force and effect as the operative provisions hereof.
"Affiliate" 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.
"Applicable Data Protection Laws" means all applicable domestic and foreign laws, regulations, directives and governmental requirements relating to the data privacy, data security, or processing and protection of personal data, as amended from time to time. The terms “controller” and “Personal Data” as used in Section 13 (Data Privacy) shall have the meanings given to them in applicable Data Protection Laws.
“Business Day” means any day other than a Saturday, Sunday or a day on which banks are authorized or required to close in New York, New York or Tel Aviv, Israel.
“Cohort” means a group of End Users' purchases of Products during a defined period, the performance of which is tracked and measured independently by the Platform on a calendar monthly basis.
“Customer Data” means the customer database, customer lists, orders, and all personal data, relating to End Users generated in connection with the Products.
“Digital Assets” means all creatives, marketing materials, store content, landing pages and other materials, and any modifications, iterations and other derivative works that ZyG creates in connection with the Services.
“Effective Date” means the effective date specified in the Order Form or, if none is specified, the date on which the Order Form is executed by the last Party to sign it.
“End User(s)” means any individual that purchases or otherwise acquires Products, through the Account, the Exclusive Digital Channels or otherwise through the Services, excluding any subscriptions that exist prior to the Effective Date but regardless of such End User’s country of residence or location at the time of purchase.
“Launch Period” means the period of six (6) calendar months commencing on the first day of the calendar month in which the first Cohort commences.
”NCROAS” means new customer return on ad spend for a given Cohort, being the ratio of the Net Revenue generated from such End User divided by the actual Marketing Management spend for such Cohort, as determined and measured by the Platform.
“Net Revenue” means the actual revenue collected from End Users by ZyG on behalf of Partner for the Partner’s Products, including through the Account and Exclusive Digital Channels in a calendar month, after deduction of (i) any discounts and Chargebacks in respect of such Products and (ii) Third Party Platform Fees, and Sales Taxes.
“Intellectual Property Rights” means all industrial and other intellectual property rights, including but not limited to: (a) patents, patent applications, inventions, and trade secrets; (b) trademarks, service marks, trade dress, logos, trade or brand names, domain names, together with the goodwill symbolized by any of the foregoing; (c) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, and firmware; and (d) all other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the laws of any jurisdiction in any part of the world.
“Organic Revenue” means revenue generated by End Users who are not specifically acquired through paid advertising or paid marketing activities, as determined by ZyG based on its data.
“Open Cohort” means a Cohort in respect of which the Outstanding Cohort Balance has not yet been recovered in full.
“Order Form” means an ordering document executed by both Parties (including electronically) that references these Partner Terms and sets out the Products, the Territory, the Platform Fee and the other commercial terms applicable to the Services, substantially in the form made available by ZyG from time to time.
“Outstanding Cohort Balance” means, with respect to a Cohort, all amounts due to ZyG in respect of such Cohort that remain unpaid after application of the Waterfall, including, without limitation, the outstanding Cohort Financing Amount.
“Partner Data” means the Product information, pricing, inventory, and other data or materials that Partner provides to ZyG for use in connection with the Services, excluding the Partner Promotional Materials and the Partner Background IP.
“Partner Background IP” means all Intellectual Property Rights in and to: (a) the Products, and all trademarks, service marks, logos, trade names, and branding associated therewith; and (b) the Partner Promotional Materials.
“Partner Promotional Materials” means marketing and promotional materials for the Products that Partner submits to ZyG from time to time for use in the Services, at ZyG’s sole discretion, including, without limitation, written, graphic, coded, audio, and visual materials and other work product.
“Platform Fee” means ZyG’s fee, expressed as a percentage of the Net Revenue, at the rate determined for each Pricing Period in accordance with Schedule 3 (Platform Fee).
“Pricing Period” means each successive period of six (6) calendar months following the end of the Launch Period.
"Product" means a certain product that Partner makes available for sale to End Users through the Account or the Exclusive Digital Channels.
“Third Party Platform Fees” means all fees, charges, and costs imposed on or on behalf of ZyG by third party providers in connection with the operation, maintenance or use of the Account, the Exclusive Digital Channels or the applicable platforms used in the provision of the Services.
“Territory” means the territory specified in the Order Form.
"Waterfall" means the payment waterfall set out in Section 4.2 of these Terms, an illustrative example of which is set forth in Schedule 2 (Illustrative Waterfall).
“ZyG Data” means data, insights, and metrics that ZyG generates, derives, aggregates, or compiles based on the operation of the Platform and the provision of the Services, including aggregated or de-identified performance and benchmarking data, but excluding Partner Data and Customer Data.
"Portal" means ZyG's partner-facing reporting portal or dashboard through which ZyG makes data, reports and analytics relating to the Products and the Services available to Partner, as further described in Section 8.
Services
Account Administration. As part of the Services, ZyG shall establish, hold, and administer the digital account(s) and/or platform(s) on third-party eCommerce infrastructure, selected at ZyG’s election, through which the Products will be offered for sale to End Users (the “Account”). The Account shall not include the Exclusive Digital Channels detailed below. During the Term, and notwithstanding anything to the contrary herein (i) ZyG shall be the merchant of record in connection with the Products for the Account and the Exclusive Digital Channels operated through the Platform within the Territory for the purposes of the Services; (ii) ZyG shall be the sole owner of the Account(s); and (iii) Partner shall be and remain the brand owner and manufacturer of the Products and shall bear all obligations, responsibilities, and liabilities arising from or relating to the Products, including product warranties, product liability, consumer protection obligations and regulatory compliance relating to the Products, including their manufacture, facility registration and listing, quality, safety, labeling substantiation, marketing and other regulatory compliance. ZyG's role as merchant of record is limited to the transactional and payment functions described in this Section 2.1 and shall not be construed as ZyG assuming any responsibility or liability for the Products.
Exclusivity of Services. During the Term, Partner hereby appoints ZyG as its exclusive digital platform, operator and provider of the Services with respect to the Products in the Territory, through all online marketplaces, platforms, accounts and other e-commerce channels that are owned by or registered to Partner (collectively, the “Exclusive Digital Channels”). Exclusive Digital Channels shall not include physical retail channels and the marketplaces designated for such retail channels. Accordingly, during the Term, Partner shall not, directly or indirectly, and shall not authorize or permit any third party (including any distributor, reseller or agency) to: (a) sell, market, advertise, re-sell or distribute the Products to consumers online in the Territory other than through the Account and the Exclusive Digital Channels as operated by ZyG under these Terms; (b) operate or manage any Exclusive Digital Channel or establish any new online channel for the Products in the Territory; or (c) engage any provider of services, infrastructure or platforms similar to the Services with respect to the Products in the Territory.
Channel Transition and Operational Control. To give effect to ZyG’s exclusive appointment and management with respect to the Exclusive Digital Channels under Section 2.2, and to the maximum extent permitted under the applicable Account Policies of the relevant Exclusive Digital Channels, Partner shall: (a) grant ZyG the highest level of administrative access and operational management permitted under the Account Policies (e.g., via "User Permissions" or similar authorized secondary access mechanisms) necessary to exclusively manage and operate the Exclusive Digital Channels within the Territory with respect to the Products; (b) authorize and assist ZyG in establishing and administering the payment and payout mechanisms for the Account and the Exclusive Digital Channels, and grant ZyG the authority necessary to manage and control the collection, receipt, and flow of revenues generated through such Exclusive Digital Channels, in accordance with the Account Policies; (c) execute such documents and take such further actions as ZyG may reasonably request to effectuate such transition of operational control, including cooperating fully and promptly with any identity, tax, or bank verification procedures mandated by the platform or its integrated payment processors in connection with the integration of ZyG’s Services; and (d) strictly refrain from accessing, modifying, or interfering with the settings, listings, payment gateways, or operations of the Exclusive Digital Channels pertaining to the Territory during the Term, except as expressly requested in writing by ZyG or as required to comply with Partner’s obligations under these Terms.
Account Integrity and Ownership. ZyG’s right to use, operate, and administer the Exclusive Digital Channels to provide the Services is granted pursuant to the license under Section 11.3. Partner shall retain ultimate legal ownership of the Exclusive Digital Channels and the Partner Background IP associated therewith, and nothing in these Terms shall be construed as transferring ownership of such Exclusive Digital Channels or Partner Background IP to ZyG; provided, however, that during the Term, ZyG shall have the exclusive right to manage and operate the Exclusive Digital Channels within the Territory in accordance with these Terms.
Changes. ZyG shall be entitled, at its sole discretion, to modify, update or introduce any changes or updates to the Platform, Account or the Services, at any time without prior notice to the Partner.
Order Forms.
The Territory, the allocation of fulfillment and customer support responsibilities, and the other commercial terms applicable to the Services shall be set out in one or more Order Forms executed by both Parties (including electronically).
Each Order Form shall constitute a separate agreement that incorporates by reference these Partner Terms (including the Schedules), as in effect on the date the Order Form is executed and as subsequently updated in accordance with Section 18.10. In the event of any conflict or inconsistency between these Partner Terms and an Order Form, these Partner Terms shall prevail, unless the Order Form expressly states, that it is intended to supersede that provision of these Partner Terms with respect to the Product(s) covered by such Order Form. Termination of any Order Form shall not affect any other active Order Form, and any rights or obligations that have accrued prior to such termination shall survive. References in these Partner Terms to “the Order Form” are to the Order Form applicable to the relevant Products.
Scale
ZyG shall use commercially reasonable efforts to scale the digital sales and distribution channels for the Products in the Territory. ZyG may, in its reasonable discretion, determine the pace, channels and manner of such scaling.
Consideration; Payment
Platform Fee. In consideration of the Services, ZyG shall be entitled to the Platform Fee at the rate(s) specified in the Schedule 3 (Platform Fee), which applies to the Net Revenue of all Cohorts during that Pricing Period. ZyG shall determine the applicable rate for each Pricing Period in accordance with Schedule 3 and shall make the determination available to Partner through the Portal. Partner hereby authorizes ZyG to deduct the Platform Fee, together with any applicable taxes thereon, directly from the Net Revenue it processes and collects, prior to remitting the net balance of the Net Revenue to Partner under and in accordance with Section 4.2 below. Partner agrees and acknowledges that all Platform Fees are non-refundable.
Payment Waterfall. All revenues generated by a Cohort, together with any other amounts received, processed and collected by or on behalf of ZyG with respect to such Cohort (collectively, “Cohort Revenues”), shall be applied and distributed, with respect to each Cohort separately and following the end of each calendar month, in the following order of priority until each category is paid or satisfied in full before proceeding to the next: (i) first, all Third-Party Platform Fees, Chargebacks, and applicable taxes, including Sales Taxes; (ii) second, the Platform Fee due to ZyG pursuant to Section 4.1; and (iii) third, third-party Fulfillment Costs incurred with respect to such Cohort. The Cohort Revenues remaining after deduction of clauses (i) through (iii) shall constitute the “Retained Revenues.” For so long as there remains any outstanding Cohort Financing Amount in respect of a financed Cohort, the Retained Revenues of such Cohort shall be allocated as specified in the Order Form. All Retained Revenues not payable to ZyG under this Section 4.2 shall be remitted to Partner in accordance with Section 4.3 (subject to ZyG’s rights under Sections 6.3 and 6.8). If Cohort Revenues are insufficient to satisfy all amounts due under any priority level, such amounts remain outstanding and shall be recoverable by ZyG from subsequent Cohort Revenues attributable to such Cohort (and subject to Sections 6.3 and 6.8 ).
Time of Payment. Any amounts due by ZyG to the Partner for any calendar month, after applying the Waterfall, and subject to Section 4.4 and to any applicable law and regulation, shall be paid by ZyG to the Partner within thirty (30) days following the end of such calendar month.
Minimum Payment Threshold. Notwithstanding Section 4.3, ZyG shall not be required to remit any amounts to Partner in any month in which the aggregate amount payable to Partner is less than One Hundred U.S. Dollars (USD $100.00) (or the equivalent in the applicable currency). Any amounts below such threshold shall be carried forward and aggregated with amounts payable in the following month(s) until the threshold is met.
Currency. All amounts payable to Partner under these Terms shall be remitted in the currency in which such amounts were received by ZyG from End Users or the applicable payment processor. ZyG shall have no obligation to convert any amount into any other currency. If Partner requests conversion of any remittance into a different currency, all currency exchange fees, conversion costs, and any other charges imposed in connection with such conversion shall be borne solely by Partner and may be deducted by ZyG from the amounts otherwise payable to Partner.
No Obligation to Accept Payment. Nothing herein or in the Waterfall shall obligate ZyG to accept any payment from any End User, and ZyG may, in its sole discretion, deny any payment by any End User on legitimate grounds, including, but not limited to, for reasons of suspected fraud, money laundering, terrorist financing or any other illegal behavior.
Taxes
Taxes on Fees. The Platform Fees and any other payments to be made to ZyG under these Terms are exclusive of any taxes. ZyG may add to the Platform Fees any applicable sales taxes or value added taxes that ZyG is legally obligated to charge. If applicable, Partner may provide ZyG with an exemption certificate or equivalent information acceptable to the relevant taxing authority, in which case ZyG will not charge or collect the taxes covered by such certificate.
Own Taxes. Each Party shall be solely responsible for its own taxes, levies, duties, and other governmental charges arising from or related to its activities under these Terms, including income taxes, franchise taxes, and any other taxes imposed on such Party’s income or operations.
Sales Taxes. ZyG shall be responsible for the collection and remittance of all sales taxes, use taxes, value-added taxes, and all similar transactional taxes imposed on the sale of Products to End Users in the Territory, to the extent required and permissible by applicable law (collectively, the "Sales Taxes"). Partner shall fully cooperate with ZyG and provide all necessary information and documentation to enable ZyG to determine, collect, and remit Sales Taxes, including product tax classification information and tax exemption certificates. Partner shall indemnify and hold harmless ZyG from and against any liability, penalty, interest, or cost arising from Partner’s failure to provide accurate tax classification information or from any determination that the Products are subject to additional or different tax treatment than represented by Partner. Notwithstanding the foregoing, ZyG shall not be liable for any failure to collect or remit Sales Taxes as a result of inaccurate or incomplete information provided by Partner or any third party on its behalf.
Cohort Financing
Cohort Financing. ZyG may elect, at its sole discretion, to make available and provide to Partner financing for the purposes of Marketing Management (as defined below) (the “Cohort Financing”). The maximum amount that ZyG may extend under the Cohort Financing (the “Cohort Financing Amount”) shall be as agreed between the Parties on a quarterly or monthly basis and subject to available inventory. The Cohort Financing Amount shall be held, managed, and disbursed by ZyG and shall be used exclusively for marketing activities to promote the Products in the Territory. The disbursement of the Cohort Financing Amount shall be reviewed and approved by the Parties on the basis of a monthly budget and in good faith.
No Cross-Collateralization. ZyG shall not cross-collateralize between Partner's Cohorts; provided, however, that the foregoing prohibition on cross-collateralization shall not limit or restrict ZyG’s right to recover amounts from other Cohorts pursuant to (i) Section 6.3 (Partner Default on Cohorts); and (ii) Section 6.8 (Recoupment from Organic Revenue).
Partner Default on Cohorts. Notwithstanding anything to the contrary, a “Partner Default” shall arise where any Cohort is adversely affected as a result of Partner’s breach of these Terms or failure to perform its obligations hereunder (including, without limitation, failure to maintain adequate Inventory levels, delivery of defective Products, failure to supply, or material misrepresentation regarding the Products). For the avoidance of doubt, a Partner Default shall arise only with respect to Inventory that Partner has expressly accepted or committed to supply in accordance with these Terms (including, without limitation, any Allocated Inventory under Section 7.8). ZyG shall be entitled to recover from Partner all costs incurred by ZyG in connection with the affected Cohort(s), including any portion of the Cohort Financing Amount provided by ZyG in respect of such affected Cohort(s). ZyG may, in its sole discretion and notwithstanding anything to the contrary herein, recover such amounts by any one or more of the following methods: (a) set-off against any other revenues or distributions otherwise payable to Partner from any other Cohort(s); or (b) set-off against any other amounts due or payable to Partner under these Terms.
Repayment of Cohort Financing Amount. The Cohort Financing Amount shall be repaid to ZyG from Cohort Revenues in accordance with the order of priority set forth in the Waterfall (Section 4.2). Repayment shall occur on a monthly basis, with ZyG applying Cohort Revenues to the repayment of outstanding amounts in accordance with the Waterfall until the Cohort Financing Amount has been repaid in full. Without derogating from any other provision of these Terms, ZyG shall have full recourse against Partner for any outstanding Cohort Financing Amount only in the event of a Partner Default pursuant to Section 6.3 or a termination by ZyG under Section 17.3. Any outstanding Cohort Financing Amount or Outstanding Cohort Balance upon or following termination or expiration of these Terms shall be recoverable by ZyG solely through the Waterfall during the Tail Period in accordance with Section 17.5, unless Partner elects to pay the buy-out amount under Section 17.2, and any balance remaining at the end of the Tail Period shall be extinguished in accordance with Section 17.5(d).
Cohort Financing Opt-Out. Notwithstanding anything to the contrary in this Section 6, either Party may elect, in its sole discretion, by written notice to the other Party, not to proceed with the financing, deployment or use of any Cohort Financing (a “Cohort Financing Opt-Out”). With respect to any Cohort subject to a Cohort Financing Opt-Out: (i) ZyG shall not spend, and shall not be required to spend, any Cohort Financing in respect of such Cohort (for the avoidance of doubt, Partner retains the ability to make any marketing expenditures with respect to such Cohort); (ii) there shall be no Cohort Financing repayment, and Partner shall have no reimbursement, recoupment or other payment obligation in respect of any spend, with respect to such Cohort; and (iii) the Platform Fee applicable to such Cohort shall be reduced to 10% of Net Revenue.
Use of Cohort Financing Amount. ZyG shall be entitled, in its sole discretion, to use the Cohort Financing Amount in any Account or Exclusive Digital Channel, for any performance-marketing-related purpose, to acquire new End Users and meet return-on-ad-spend goals, including, without limitation, Meta, Google, TikTok, Snapchat, AppLovin, Amazon and influencers ("Marketing Management"). ZyG may deploy the Cohort Financing Amount at such times and in such manner as it deems appropriate and may engage third-party service providers (including any social platform) to perform any marketing or promotional activities on its behalf as reasonably required by ZyG in connection with the provision of the Services.
No Guarantee of Results. Partner acknowledges and agrees that the results of Marketing Management, including, without limitation, End User acquisition rates, conversion rates, return on ad spend, and overall marketing performance, are dependent upon numerous factors beyond ZyG’s control, including market conditions, consumer preferences, competitive dynamics, Product quality, pricing, Inventory availability, and third-party platform policies and algorithms. Accordingly, ZyG makes no representation, warranty, or guarantee of any kind, whether express or implied, with respect to the results, effectiveness, or outcome of the Marketing Management or any marketing activities funded by the Cohort Financing.
Recoupment from Organic Revenue. Notwithstanding anything to the contrary, ZyG shall be entitled to recoup the Outstanding Cohort Balance of any Open Cohort by deducting and retaining the Organic Revenue generated by one or more subsequent Cohorts, subject to the following conditions: (a) ZyG may exercise such right only after the expiration of twelve (12) calendar months following the commencement of such Open Cohort; (b) the amount to be recouped shall not exceed fifty percent (50%) of the Organic Revenue generated from any subsequent Cohort. All amounts so recouped shall be credited toward the Outstanding Cohort Balance of the applicable Open Cohort until such Outstanding Cohort Balance has been recovered in full.
Inventory and Fulfillment
Inventory Ownership. All inventory of Products (“Inventory”) shall at all times remain the sole and exclusive property of Partner, including without limitation during any period in which such Inventory is held at or transferred to the premises of ZyG, its Affiliates, or any of its suppliers or other third parties. No provision of these Terms shall be construed to transfer, convey, or create any ownership interest in favor of ZyG or any other third party with respect to such Inventory (other than in favor of End Users upon completion of a sale in accordance with these Terms).
Inventory Management and Pricing. Partner shall be responsible for maintaining Inventory levels sufficient to support anticipated demand and expected growth and shall use commercially reasonable efforts to procure, manufacture, or otherwise produce sufficient Inventory to meet such demand. The Parties shall engage in ongoing discussions at reasonable intervals regarding Inventory-related matters, including inventory planning, volume limits, and the Partner's manufacturing schedules. Partner acknowledges that pricing optimization is an integral component of the Services and agrees to cooperate with ZyG in good faith with respect to pricing of the Products. Subject to ZyG’s recommendation, Partner shall determine pricing of Products through the Platform. For avoidance of doubt, Partner shall not have direct operational control over the Platform or the Account.
Fulfillment. Fulfillment of Products under these Terms shall be performed by the Party specified in the Order Form, either by Partner pursuant to Section 7.4 or by ZyG pursuant to Section 7.5. In any event, Partner shall bear all costs incurred in connection with the fulfillment and delivery of Products to End Users, including without limitation costs for shipping, pick and pack, storage, warehousing, packaging materials, handling, labeling, and carrier fees and inventory insurance (collectively, “Fulfillment Costs”).
Fulfillment by Partner. Where the Order Form specifies that Partner is responsible for fulfillment, Partner shall fulfill all Products sold under these Terms, whether directly or through a third-party logistics provider (“TPL”) approved by ZyG (such approval not to be unreasonably withheld), in each case in accordance with the fulfillment standards, service levels, and policies as specified in Schedule 1 (the “Fulfillment Standards”). Partner shall ensure, and shall ensure that its TPL: (a) maintain sufficient service levels to support the anticipated order volumes and delivery timelines required by the Platform and the Fulfillment Standards; (b) maintain adequate insurance coverage; (c) maintain complete and accurate records of all Inventory held by or on behalf of Partner (including all Allocated Inventory (as defined in Section 7.8)), by Product, batch or lot number and expiry date, and current Inventory levels; (d) upon ZyG’s request, promptly provide ZyG with copies of the underlying warehouse or TPL records; and (e) notify ZyG in writing immediately upon becoming aware of any discrepancy between the Inventory levels reported to ZyG and the Inventory actually held, or of any actual or anticipated shortage, damage, loss or other risk to the availability of any Inventory (including any Allocated Inventory). Partner shall use commercially reasonable efforts to fulfill orders in accordance with the delivery timelines communicated by ZyG. If ZyG determines, in its reasonable discretion, that Partner or its TPL is not maintaining the Fulfillment Standards, ZyG may, upon ten (10) days’ prior written notice to Partner, assume responsibility for the fulfillment of the Products in accordance with the provisions of Section 7.5. ZyG shall have no liability for any delays, errors, or failures in fulfillment caused by Partner or its TPL.
ZyG Fulfillment. Notwithstanding Section 7.4, in the event that the Order Form specifies that ZyG shall be responsible for the fulfillment of the Products to End Users, or ZyG assumes responsibility for fulfillment pursuant to Section 7.4, then, subject to the terms and conditions of these Terms: (a) Partner shall deliver Inventory to ZyG’s designated warehouse or fulfillment center in the Territory, in accordance with delivery schedules and specifications communicated by ZyG; (b) title to and risk of loss of the Inventory shall remain with Partner at all times and shall not transfer to ZyG; and (c) the Fulfillment Costs incurred by ZyG or its third-party logistics providers shall be deducted under the Waterfall at ZyG's actual cost.
Fulfillment Cost Reimbursement. Where Partner is responsible for fulfillment pursuant to Section 7.4, the following shall apply:
(i) Invoicing and Documentation. Partner shall submit invoices to ZyG on a monthly basis (or at such times as ZyG may reasonably require) for Fulfillment Costs actually incurred during the applicable period. Each invoice shall be accompanied by reasonable supporting documentation, including invoices from the TPL (if applicable), carrier invoices, and such other evidence of costs incurred as ZyG may reasonably request.
(ii) Reimbursement. Subject to ZyG’s verification and approval, ZyG shall reimburse Partner for documented Fulfillment Costs. Such reimbursement shall be made in accordance with the Waterfall set forth in Section 4.2.
Exporter and Importer of Record. Partner shall be the sole exporter of record and importer of record with respect to all Products shipped into and sold within the Territory under these Terms. Partner shall be exclusively responsible for: (a) compliance with all applicable export control laws, import laws and regulations, customs requirements, and trade sanctions in all relevant jurisdictions, including, without limitation, those of the jurisdiction from which Products are shipped; (b) obtaining all necessary export and import licenses, permits, and authorizations; (c) the accurate classification of Products for customs, tariff, and export control purposes; (d) the preparation and filing of all required export and import documentation, including customs declarations; (e) the payment of all duties, tariffs, taxes, and other charges arising in connection with the export and import of Products; and (f) compliance with the requirements of the U.S. Food and Drug Administration ("FDA") (where the Territory includes the United States) and any other competent regulatory authority, including, where applicable, all prior notice, facility registration and U.S. agent disclosure and registration requirements. Partner shall not export, import, re-export, or otherwise transfer any Products in violation of any applicable laws or regulations. ZyG shall have no liability arising from or in connection with Partner’s obligations as exporter of record or importer of record.
Inventory Allocation. ZyG may from time to time make available to Partner through the Portal a proposed allocation of Inventory to the Services, specifying the Products, quantities and the location(s) at which such Inventory is or will be held (each, an “Inventory Allocation”). Partner’s acceptance of an Inventory Allocation in the Portal shall constitute a binding commitment of Partner under these Terms, and the Inventory specified in such Inventory Allocation shall, from the date of such execution or acceptance, be reserved exclusively for sale to End Users through the Services. Inventory Allocation that has been accepted, shall be deemed to be Inventory that Partner has expressly accepted and committed to supply for purposes of Section 6.3. Any failure by Partner to maintain the Inventory Allocation shall constitute a material breach of these Terms by Partner, whether or not such failure has affected, or is expected to affect, any Cohort or Partner’s performance against the Fulfillment Standards.
Portal Access
Subject to the terms and conditions of these Terms and the terms and policies within the Portal, ZyG hereby grants to Partner a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Portal solely for the purpose of: (a) viewing data, reports, analytics, and performance metrics (including NCROAS and the other metrics used to determine the Platform Fee under Schedule 3) related to the Products and the Services as determined by ZyG; and (b) monitoring sales activity, Inventory limits and End User engagement; and (c) reviewing, accepting and executing Inventory Allocations, and submitting Inventory reports and related information, in accordance with Sections 7.4 and 7.8. This license is personal to Partner for its internal use only and may not be assigned or transferred. ZyG may, in its sole discretion and at any time, suspend, limit, or revoke Partner’s access to the Portal, in whole or in part, upon written notice to Partner. Partner shall access the Portal only through the login credentials and access methods provided or approved by ZyG and shall not attempt to access any portion of the Portal or any data not expressly made available to Partner. Partner acknowledges that the Portal and all data, features, and functionalities therein are proprietary to ZyG and that Partner acquires no rights therein except the limited license expressly granted herein. Upon termination or expiration of these Terms (and, in respect of Open Cohorts, the end of the Tail Period), this license shall immediately terminate, and Partner shall cease all access to and use of the Portal. Partner acknowledges that the reports and data provided within the Portal are provided on an “as is” basis, and that ZyG makes no representation or warranty regarding the accuracy, completeness, or timeliness of such reports and data.
Representations and Warranties
ZyG Representations and Warranties. ZyG represents and warrants that (i) it is a company duly organized under applicable laws; (ii) it has the authority to accept and be bound by these Terms; and (iii) the acceptance and performance of these Terms does not conflict with any known contractual or other legal obligation applicable to ZyG; and (iv) the Services are provided in compliance in all material respects with laws and regulations applicable to ZyG.
Partner Representations and Warranties. Partner represents and warrants that (i) it is a company duly organized under applicable laws; (ii) it has the authority to accept and be bound by these Terms; (iii) the acceptance and performance of these does not conflict with any contractual or other legal obligation applicable to Partner; (iv) it shall at all times use the Services in compliance with applicable laws and regulations, the terms of these Terms and any and all guidance provided by ZyG; (v) it has all rights, licenses and consents required under any applicable law to provide ZyG with the Partner Data; (vi) Partner owns, or holds valid and enforceable rights and licenses to all Intellectual Property Rights in and to the Products and the Partner Background IP (including the Products' brand) sufficient to grant the licenses set out in these Terms and allow the performance of the Services as set forth herein, and Partner has obtained and shall maintain throughout the Term and for any applicable period in connection with these Terms, all rights, licenses, and third-party consents necessary for ZyG to use, host, copy, reproduce, modify, adapt, display, and create derivative works of the Partner Background IP and Partner Data, and to otherwise exercise the licenses granted to ZyG under these Terms, in each case in connection with the provision of the Services; (vii) neither Partner nor any person who owns, controls, or acts on behalf of the Partner is or has been, identified on any list of prohibited or restricted parties or jurisdictions under applicable laws or regulations, or by any relevant governmental authority, including, without limitation, lists maintained by the United Nations Security Council, the US government (including the US Treasury Department's Specially Designated Nationals List and Foreign Sanctions Evaders List), the Israeli government, the UK government, the European Union (EU) or its member states; (viii) each Product is fully developed, completed, safe and market-ready for commercial sale, use and distribution, and is not a prototype, beta-version, test product, or otherwise in a pre-commercial stage; (ix) Partner has, and shall maintain throughout the Term, sufficient scalable manufacturing capabilities to meet reasonably anticipated demand for the Products, whether through its own facilities or pursuant to binding manufacturing agreements with third-party manufacturers (and Partner shall, at ZyG’s reasonable request, provide reasonable supporting documentation evidencing such manufacturing capabilities or agreements); (x) the Partner has obtained, and Partner shall maintain throughout the Term (and for such period thereafter as required by applicable law with respect to Products sold during the Term), all valid regulatory approvals, registrations, clearances, permits, licenses and authorizations required for Partner and ZyG (as applicable), under applicable law for the manufacture, marketing, labeling, sale, commercialization, distribution and use of the Products in the Territory; (xi) Partner shall maintain complete, accurate, and up-to-date books and records relating to the Products, including records of manufacture, quality control, regulatory compliance, and product safety testing, and shall make such records available to ZyG for inspection upon reasonable notice; and (xii) it has developed, designed, produced, manufactured, labeled, distributed, marketed and sold Products in compliance with all applicable laws, regulations and applicable industry standards. Partner shall promptly notify ZyG of any actual or suspected sanctions, recall, anti-money laundering, export control, banking, or regulatory issue relating to Partner, its Affiliates, beneficial owners, Products, jurisdictions of operation, or supply chain. ZyG may immediately suspend the Services, freeze remittances until the matter is resolved to ZyG’s reasonable satisfaction, or terminate these Terms if ZyG reasonably determines that continuing the relationship may expose ZyG to legal, regulatory, reputational, banking, processor, or sanctions-related risk.
Restrictions and Additional Obligations
Cooperation. Partner shall fully cooperate with ZyG and upon request shall promptly provide ZyG with all accurate, up-to-date and complete information and documentation, including any information concerning the Products, in order to provide the Services or addressing any third-party or regulatory request, including without limitation all information relating to the Products’ composition, specifications, manufacturing, labeling, marketing claims, regulatory status, safety, inventory, fulfillment, warranties, and compliance with applicable laws, and any other assistance reasonably requested by ZyG. Partner acknowledges and agrees that Partner shall be identified and presented to End Users as the brand owner and manufacturer of the Products on the Account and the Exclusive Digital Channels and under the applicable End User-facing terms of service (the "End User Terms"), and shall be identified as the entity which is solely responsible and liable for the Products and their performance and all information, representations, warranties, claims, and obligations relating thereto. ZyG may amend the End User Terms from time to time to the extent reasonably necessary to operate the Services or comply with applicable law or the requirements of the applicable platforms. ZyG shall be entitled to rely on all information and materials provided by Partner without independent verification and shall have no liability arising from any inaccurate, incomplete, misleading, or outdated information provided by or on behalf of Partner.
Restrictions. Partner shall not, and shall not allow anyone on its behalf or any third party to, do (or attempt to do) any of the following: (i) copy, modify, duplicate, distribute, display, perform, sublicense, republish, retransmit, reproduce, create derivative works of, or otherwise use the Platform, Portal or the Services or any content thereon, except as explicitly permitted by these Terms; (ii) transfer, sell, further develop, or use the Platform, Portal or the Services, other than as specifically set forth in these Terms; (iii) infiltrate, hack, decipher, decompile, disassemble, or reverse-engineer the Platform, Portal or the Services or any part thereof; (iv) circumvent, disable, or otherwise interfere with features of the Platform, Portal or the Services (including, without limitation, any features related to security or access); and (v) use any robot, spider, search or retrieval application, or any other manual or automatic device or process to retrieve, index, data-mine, or in any way reproduce or circumvent the navigational structure or presentation of the Services.
Account Policies. Partner shall comply with all terms of service, acceptable use policies, and other policies of the online digital platform supporting the Account (e.g. Shopify), the Exclusive Digital Channels (e.g. Amazon), and any Third Party Service used in connection with the Account or the Exclusive Digital Channels (“Account Policies”). Any violation by Partner may result in suspension or termination of the Account or the Exclusive Digital Channels, and ZyG shall have no liability for any resulting loss. Any fine, penalty, or cost imposed by any platform or Third Party Services provider as a result of Partner's violation of Account Policies shall be subject to Partner's indemnification obligations under Section 14.2.
Product Responsibility. Partner acknowledges and agrees that the Products are goods developed, designed, produced, manufactured, labeled, substantiated, packaged, sold and distributed solely by or on behalf of Partner, and that ZyG does not develop, design, produce, manufacture, label, substantiate, test, inspect, certify, warrant, endorse or otherwise assume any responsibility or liability for any Product. Accordingly, ZyG hereby disclaims, and shall have no liability whatsoever, whether in contract, tort (including negligence), strict liability, product liability, statutory liability or otherwise, for any claim, damage, loss, cost or expense arising out of or relating to the Products, including any alleged or actual defect, non-conformity, failure, recall, injury, death, property damage, unfair or deceptive advertising, labeling, or misleading marketing based on the information provided by Partner, or violation of applicable law. Without limiting Partner’s obligations under these Terms, Partner shall remain solely responsible for all warnings, manufacturing, packaging, regulatory compliance, testing, certifications, labeling, marketing, marketing claims, advertising substantiation, import compliance, export compliance, and consumer protection obligations relating to the Products. Partner shall bear all costs and liabilities associated with any Product correction, market withdrawal, stock recovery, recall, regulatory inquiry, FDA inspection, untitled letter, warning letter, enforcement action, consumer claim, or any other third-party claim relating to the Products or Partner Background IP, and, to the extent Partner or its TPL is responsible for fulfillment under these Terms, any fulfillment of the Products.
Third Parties. ZyG hereby disclaims all liability, regardless of the form of action, for the acts or omissions of any third party (including unauthorized users) that are not solely due to ZyG’s willful misconduct, whether such acts or omissions occur during the use of the Services or otherwise. ZyG shall not be liable for any actions or omissions of third-party platforms, processors (including payment processors) or service providers.
Insurance. Partner shall, at its own expense, maintain in full force and effect throughout the Term and for any period thereafter during which liability may arise, insurance policies including, at a minimum: (i) Commercial General Liability insurance, including bodily injury, property damage, personal and advertising injury, products and completed operations liability, and Blanket Contractual Liability coverage, with limits of liability of not less than USD 1,000,000 per occurrence and USD 2,000,000 in the aggregate for the policy period; and (ii) Umbrella/Excess Liability with limits of not less than USD 5,000,000 per occurrence and in the aggregate. In addition, Partner shall maintain, at its own cost, All Risks Property and Business Interruption insurance on the Products and Partner’s property, at full replacement value, including while stored at, handled at or in transit to or from ZyG's or third party's facilities and platform. All such policies shall be primary and non-contributory with respect to any insurance maintained by ZyG, its Affiliates or any third party service provider, and the Commercial General Liability and Umbrella/Excess Liability policies shall include ZyG, ZyG Edge Ltd., their affiliates, directors, officers, employees, agents, and representatives as additional insureds. Partner shall waive, and shall cause its insurers to waive, all rights of subrogation against ZyG and the other additional insureds and with respect to the All Risks Property and Business Interruption insurance, also any warehouse or cargo service provider, to the extent permitted by law. Upon ZyG's request, Partner shall furnish certificates of insurance to the address for insurance notices specified in the Order Form and, if reasonably requested, copies of relevant policy endorsements evidencing compliance with the insurance requirements set forth herein. Partner waives and releases ZyG from any claims in respect of losses or damages covered, or which should have been covered, under the insurance policies required to be maintained by Partner.
Regulatory Compliance and Notifications. Without limiting Partner’s representations under Section 9.2 or its indemnification obligations under Section 14.2, Partner shall: (i) comply with all applicable laws, regulations, and industry standards governing the Products in the Territory, including consumer protection, product safety and labeling; (ii) notify ZyG in writing immediately (and in any event no later than one (1) Business Day) of any change in the regulatory status of, or any regulatory inquiry, investigation, or enforcement action relating to the Products or their sale through the Platform; (iii) ensure that all Product information, claims, images, and materials provided to ZyG are truthful, accurate, substantiated, and comply with applicable laws, it being agreed that ZyG shall not be liable for claims arising from inaccurate or unsubstantiated Product information (including any marketing materials) provided by Partner; and (iv) immediately notify ZyG in writing upon becoming aware of any defect, hazard, safety concern, recall, or regulatory inquiry relating to any Product. Partner shall be solely responsible for all costs associated with any product recall or corrective action relating to the Products and shall cooperate with ZyG in removing affected Products from the Account or the Exclusive Digital Channels. ZyG may, in its sole discretion, immediately suspend the sale of, or remove from the Account or the Exclusive Digital Channels, any Product upon becoming aware of any safety concern, potential recall, or any circumstance that, in ZyG’s reasonable determination, poses legal, regulatory, reputational, or compliance risk to ZyG, without prior notice and without liability to Partner.
Third Party Services. Certain features and functionalities of the Services may be linked to third party products and services (“Third Party Services"). Partner acknowledges and agrees that the Third Party Services are beyond ZyG’s control, are subject to their own licenses, policies (including privacy policies) and legal terms and that ZyG does not endorse any Third Party Services. ZyG uses commercially reasonable efforts to select reputable and reliable Third Party Service providers and maintains standard contractual safeguards with such providers, however ZyG shall not be in any way responsible or liable with respect to any Third Party Services, their updates or lack thereof, their security, and any changes to such Third Party Services’ legal terms and policies, as made by the Third Party Services providers from time to time. ZyG’s integration or interaction with any Third Party Service does not in any way imply, suggest, or constitute any sponsorship or approval by ZyG, nor any affiliation between them. ZyG may add, replace, enable or disable integrations with and update Third Party Services at its sole discretion. When using Third-Party Services, Partner does so at its own risk.
Refunds and Chargebacks. ZyG shall administer all refunds, returns, and chargebacks in connection with Products sold through the Account or the Exclusive Digital Channels (collectively, the "Chargebacks") in accordance with the End User Terms and any related policy. The financial cost of all Chargebacks shall be borne by Partner and deducted from Net Revenue in accordance with Section 4. Partner shall cooperate with ZyG in resolving Chargeback disputes.
Intellectual Property Ownership
ZyG IP. ZyG and its licensors, as the case may be, own all right, title, and interest in and to the Platform, the Account, the Portal, the Digital Assets, the Services and all software and technical innovations that provide them, as well as all modifications, enhancements, upgrades, updates, features, and derivative works thereto, and all worldwide Intellectual Property Rights therein, including the trademarks, service marks, and logos contained therein, whether registered or unregistered (collectively, "ZyG IP"); provided, however, that ZyG IP shall not include any Partner Background IP that is incorporated into, displayed within, or otherwise used in connection with ZyG IP, and all such Partner Background IP shall remain the sole property of Partner. Partner may not remove, alter, or conceal any copyright, trademark, service mark, or other proprietary rights notices incorporated in the Platform (including the Account) or the Services, if any. Except as expressly granted herein, nothing in these Terms grants Partner or anyone on its behalf any right to use any trademark, service mark, logo, or trade name of ZyG or any third party. Nothing in these Terms shall be interpreted to provide Partner or anyone related to it with any rights in ZyG IP, the Platform, or Services, except for the limited right to use and receive the Services subject to the terms of the Agreement.
Partner Background IP. Partner and its licensors own all right, title, and interest in and to the Partner Background IP. Nothing in these Terms shall be interpreted to provide ZyG or anyone related to it with any rights in Partner Background IP, except for the limited licenses expressly granted herein.
License Grant to ZyG. Subject to the terms of these Terms, during the Term and the Tail Period and for such additional period as is necessary to fulfill ZyG’s obligations under these Terms, Partner grants ZyG a non-exclusive, worldwide, royalty-free, fully paid-up, transferable, and sublicensable license under and to Partner Background IP and Partner Data to use, host, copy, distribute, transmit, modify, adapt, reproduce, display and create derivative works of Partner Background IP and Partner Data as necessary to: (a) provide the Services in connection with the Products; (b) display the Products and Partner’s branding within the Account’s and the Exclusive Digital Channels’ interfaces; (c) operate and manage the Exclusive Digital Channels placed under ZyG’s exclusive management pursuant to Section 2.2, including the domains and content associated therewith; and (d) comply with ZyG’s obligations under these Terms and any applicable law.
Promotional Materials. From time to time, Partner may submit Partner Promotional Materials to ZyG for use in the Services, at ZyG's sole discretion, and agrees to do so upon ZyG's reasonable request. The Partner Promotional Materials, and any trademarks, logos, brand elements, or other Partner Background IP contained therein, are and shall remain the property of Partner. ZyG owns all modifications, enhancements, iterations, and other derivative works that ZyG creates based on or in reference to the Partner Promotional Materials, which shall constitute Digital Assets; provided, that any Partner Background IP incorporated into or reflected in such Digital Assets shall remain Partner Background IP and is licensed to ZyG solely as set forth in Section 11.3 (License Grant to ZyG).
Feedback. During the Term, Partner or anyone on its behalf may provide ZyG with comments, bug reports, ideas or other feedback in connection with the Account and Services (collectively, “Feedback”). Any Feedback shall be owned by ZyG and ZyG may use it in any manner it deems appropriate, including for commercial purposes and as part of improved or future Services, without any compensation.
Confidentiality
Confidential Information. Partner or ZyG (each, a "Recipient") may have access to certain Confidential Information of the other Party (each, a "Disclosing Party"). For the purposes hereof, "Confidential Information" means any proprietary, non-public, or trade secret information disclosed by the Disclosing Party to the Recipient, whether orally, in writing, electronically, or by any other means, which is designated as confidential or which, given the nature of the information or the circumstances surrounding its disclosure, would reasonably be understood to be confidential. Without limiting the generality of the foregoing, ZyG’s Confidential Information shall include, without limitation: (a) the Platform, Account, Services, and all related software, source code, object code, algorithms, data models, artificial intelligence and machine learning models, APIs, integrations, technical specifications, architecture, designs, and documentation; (b) all proprietary methodologies, processes, techniques, know-how, trade secrets, and inventions (whether patentable or not) relating to the development, operation, or improvement of the Platform, Account or Services; (c) business and product plans, pricing and fee structures, financial information, customer and partner lists, and marketing strategies; (d) ZyG Data; and (e) the terms of each Order Form. Partner’s Confidential Information shall include Partner Data, Partner Background IP, Partner Promotional Materials, and Partner’s other non-public business information specifically disclosed to ZyG in connection with these Terms. Notwithstanding the foregoing, Confidential Information shall not include information that: (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of Recipient; (ii) the Recipient can demonstrate by contemporaneous written records to have had rightfully in its possession prior to disclosure of the Confidential Information by the Disclosing Party; (iii) the Recipient rightfully obtains from a third party who has the lawful right to transfer or disclose it, without default or breach of these Terms or any confidentiality obligation; or (iv) the Recipient can demonstrate by contemporaneous written records to have independently developed without breach of these Terms and without any use of, access to, or reference to the Confidential Information of the Disclosing Party.
Nondisclosure Obligations. Except as expressly permitted herein, Recipient shall not use, copy, reverse engineer, disassemble, decompile, or disclose the Confidential Information to any third party, except solely for the purpose of performing its obligations or exercising its rights under these Terms (e.g. third-party service providers, including payment processors, e-commerce platforms, logistics providers, and marketing platforms). Recipient shall protect the Confidential Information using at least the same degree of care it uses to protect its own confidential information of like kind, but in no event less than a high degree of care. Recipient shall limit access to Confidential Information to those of its employees, contractors, or professional advisors and service providers who have a need to know and are bound by written confidentiality obligations no less restrictive than those set forth herein. Recipient shall be responsible for any breach of this Section 12 by any person to whom it discloses Confidential Information. The obligations set forth in this Section 12 shall survive termination or expiration of these Terms for a period of seven (7) years; provided, however, that with respect to any Confidential Information constituting a trade secret under applicable law, such obligations shall continue for so long as such information remains a trade secret.
Permitted Disclosures. Notwithstanding the foregoing, Recipient may disclose Confidential Information solely to the extent required by applicable law, regulation, or a valid and governmental or judicial order (the “Order”); provided, that Recipient shall, to the extent legally permitted: (a) provide Disclosing Party with prompt prior written notice of such Order to enable Disclosing Party to seek a protective order or other appropriate remedy; (b) reasonably cooperate with Disclosing Party, at Disclosing Party’s expense, in opposing such disclosure, or limiting the scope of the required disclosure or seeking confidential treatment; and (c) disclose only the minimum portion of the Confidential Information that is legally required to be disclosed and only to those persons to whom disclosure is legally required. Any Confidential Information disclosed pursuant to this Section 12.3 shall otherwise remain subject to the confidentiality obligations hereunder.
Remedies. Each Party acknowledges that any breach or threatened breach of this Section 12 may cause irreparable harm to the Disclosing Party for which monetary damages would be an inadequate remedy. Accordingly, in addition to any other remedies available at law or in equity, the Disclosing Party shall be entitled to seek injunctive or other equitable relief to prevent or restrain any such breach or threatened breach, without the requirement of posting a bond or other security.
Return of Confidential Information. Upon termination or expiration of these Terms, or upon the Disclosing Party’s written request, the Recipient shall promptly, at the Disclosing Party’s election, either: (a) return all Confidential Information to the Disclosing Party; or (b) destroy all Confidential Information and certify such destruction in writing; provided that (i) Customer Data shall be handled in accordance with Section 13.1, (ii) each Party may retain Confidential Information to the extent required by applicable law or contained in routine electronic backups, and (iii) ZyG may retain and use ZyG Data and Digital Assets in accordance with these Terms, in each case subject to the continuing confidentiality obligations of this Section 12.
Data Privacy
Customer Data. As between the Parties, ZyG collects Customer Data through the Account and the Exclusive Digital Channels in its capacity as an independent controller and merchant of record. During the Term, ZyG shall make available to Partner, through the Portal or by periodic export, the Customer Data, and Partner shall use such Customer Data solely as permitted under Section 13.3. Within thirty (30) days after the end of the Tail Period (or, if there is no Tail Period, after the effective date of termination or expiration), ZyG shall deliver to Partner a copy of the Customer Data in a commonly used machine-readable format, following which Partner may use such Customer Data as an independent controller for any lawful purpose, solely in connection with the Products.
Independent Controllers. Each Party shall: (i) be an independent controller of Personal Data under the Applicable Data Protection Laws with respect to its own processing activities; (ii) comply with all applicable obligations under the Applicable Data Protection Laws; (iii) promptly notify the other Party of any circumstances in which such Party is unable or becomes unable to comply with any provision under this Section 13 (Data Privacy) or Applicable Data Protection Laws, or any actual or potential changes to Applicable Data Protection Laws, if this shall affect the other Party’s ability to comply with its obligations under this Section or Applicable Data Protection Laws.
Use of Customer Data by Partner. Except as expressly permitted under these Terms or required by applicable law, Partner shall not (i) use the Customer Data for any purpose unrelated to these Terms; and (ii) exploit the Customer Data independently of the Products or the Parties' relationship hereunder.
Data Ownership. ZyG owns all right, title and interest in and to the ZyG Data. As between the Parties, Partner owns all right, title and interest in and to the Partner Data, subject to the license granted to ZyG under Section 11.3 (License Grant to ZyG).
Privacy Policy. ZyG’s privacy policy, as made available to End Users on the Account (and, where applicable, through the Exclusive Digital Channels) and updated by ZyG from time to time (the "Privacy Policy"), governs ZyG’s collection and processing of personal data (including the Customer Data) in connection with the Products. The Privacy Policy is addressed to End Users; the Parties’ respective obligations to each other in respect of personal data are governed by this Section 13.
Data Subject Requests and Assistance. Each Party shall: (i) inform the other Party (without undue delay) in the event that it receives a data subject request related solely and exclusively to the other Party's respective processing activities and provide all reasonable assistance to ensure data subject requests are completed within the timeframe set out in Applicable Data Protection Laws; (ii) provide the other Party with reasonable assistance (having regard to the data available to it) to enable the other Party to comply with any data subject request and to respond to any other queries or complaints from data subjects; and (iii) provide the other Party with such assistance as the other Party may reasonably request from time to time to enable the other Party to comply with its obligations under the Applicable Data Protection Laws, including (without limitation) in respect of security, breach notifications, impact assessments, and consultations with supervisory authorities or other regulators.
Security Incidents. In the event that a Party suffers an actual or potential accidental or unlawful destruction, loss, alteration, or unauthorized disclosure of, or access to, Personal Data ("Security Incident") disclosed from the other Party, such Party shall notify the other Party without undue delay, and the Parties shall cooperate in good faith to agree upon and implement such measures as may be necessary to mitigate or remedy the effects of the Security Incident.
Indemnification
ZyG Indemnification. ZyG shall defend, indemnify, and hold harmless Partner and its Affiliates, and their respective officers, directors, employees, agents, successors and assigns (each, a “Partner Indemnitee”) from and against any third party claim, demand, action, or proceeding (each a “Claim”) and damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees and costs) that are finally awarded against a Partner Indemnitee or agreed in written settlement by ZyG (“Partner Loss”), in each case to the extent such Claim or Partner Loss directly arises from or is attributable to: (a) Partner’s use of the Platform or Services in accordance with these Terms infringing a patent or copyright, or misappropriating a trade secret, of such third party; (b) any Digital Assets created by ZyG in connection with the Services (including, without limitation, advertising creatives, store content, marketing materials, subscription communications, and related materials) infringing any Intellectual Property Rights of a third party. ZyG’s indemnification obligations under this Section 14.1 shall not apply to the extent any claim or Partner Loss arises from or is attributable in any manner to: (i) the Partner Background IP, including in case any Partner’s trademarks, logos, Product images or branding or other Partner Promotional Materials provided by Partner to ZyG infringe, violate or misappropriate third-party rights; (ii) Product information, descriptions, claims, or specifications provided by Partner that are inaccurate, misleading, or infringing or otherwise do not comply with applicable laws and regulations; (iii) Third Party Services integrated into the Platform, to the extent such claim arises from the acts or omissions of the third-party provider; or (iv) Partner’s violation of applicable law or regulations, or breach of its representations, warranties, or obligations under these Terms. If the Platform, the Services or any Digital Asset is, or in ZyG's reasonable opinion is likely to become, the subject of an infringement claim, ZyG may, at its option and expense, (x) procure the right for Partner to continue using it, (y) modify or replace it so that it is non-infringing without material loss of functionality, or (z) if neither (x) nor (y) is commercially reasonable or feasible, cease providing the affected element and, if this materially impairs the Services as a whole, either Party may terminate these Terms upon written notice. This Section 14.1 states ZyG's sole liability, and Partner's and Partner’s Indemnitees’ sole and exclusive remedy, for any Claim of infringement or misappropriation of third-party Intellectual Property Rights. This indemnification shall survive termination or expiration of these Terms.
Partner Indemnification. Partner shall defend, indemnify, and hold harmless ZyG, its Affiliates, and their respective officers, directors, employees, agents, successors, and assigns (each, the “ZyG Indemnitee”) from and against any and all claims, demands, actions or proceedings and damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees and costs) suffered or incurred by any ZyG Indemnitee, whether in connection with a claim, demand, suit, action or proceeding brought by a third party or directly (“ZyG Losses”) in each case to the extent such ZyG Losses arise from or are attributable to: (i) the Products, including any actual or alleged defect, non-conformity, failure to warn, Product correction, Product market withdrawal, Product stock recovery, Product recall, bodily injury, death, or property damage related thereto, regardless of legal theory (including contract, tort, negligence, strict liability, product liability, or statutory liability) or the Partner Promotional Materials; (ii) any claim by an End User or other third party arising out of or relating to the Products (including their delivery or performance if conducted by Partner), or Partner’s relationship with End Users; (iii) any breach by Partner of its representations, warranties, or obligations under these Terms; (iv) any claims that the Partner Background IP infringes, violates or misappropriates any third party’s Intellectual Property Rights; or (v) any actual or alleged violation by Partner, its Affiliates or anyone acting on their behalf of any applicable law, regulation or regulatory requirement, industry standard or Account Policy, whether relating to the Products, the Partner Promotional Materials or Partner's acts or omissions under these Terms, including (a) consumer protection, unfair or deceptive acts or practices, false or misleading advertising, claim substantiation, endorsements, testimonials, affiliate marketing, material connection disclosures, labeling, packaging, warnings, safety, recalls, adulteration, misbranding and data protection laws; (b) any failure to obtain or maintain any regulatory approval, registration, clearance, permit, license or authorization required for the Products or for Partner's performance under these Terms; and (c) any fine, penalty, assessment or sanction imposed on any ZyG Indemnitee as a result of any of the foregoing. . Partner’s indemnification obligations shall apply regardless of whether ZyG is named as a party to any claim or proceeding and regardless of any negligence on the part of ZyG. This indemnification shall survive termination or expiration of these Terms.
Procedures. Either Party claiming indemnification under this Section 14 (as applicable, the "Indemnified Party") shall: (i) provide the other Party (the "Indemnifying Party") with written notice of a claim promptly upon becoming aware of the event or circumstances giving rise to the indemnity claim (including any third party claim), provided that any delay in providing such notice shall not relieve the Indemnifying Party of its obligations under this Section except to the extent the Indemnifying Party is materially prejudiced by such delay, (ii) allow Indemnifying Party to control the defense and settlement of the third party claim, provided that no settlement may be entered into without the consent of Indemnified Party (not to be unreasonably withheld, conditioned or delayed), unless such settlement includes a full and unconditional release of the Indemnified Party, does not impose any injunctive relief or other non-monetary obligation on the Indemnified Party, and does not include any admission of fault, wrongdoing, or liability on the part of the Indemnified Party, and further provided that, subject to attorney-client privileges, Indemnified Party may engage its own counsel at its own expense; and (iii) reasonably cooperate with Indemnifying Party, at Indemnifying Party's expense, in the defense and settlement of the claim.
If the Indemnifying Party fails to diligently defend the claim, or a conflict of interest exists between the Parties with respect to the claim, the Indemnified Party may, upon prior written notice to the Indemnifying Party and after providing Indemnifying Party the opportunity to cure for a period of no less than ten (10) Business Days, assume control of the defense, without waiving its right to indemnification (and in such case Indemnified Party may not settle the claim without the prior written consent of Indemnifying Party (not to be unreasonably withheld, conditioned, or delayed)).
WARRANTY DISCLAIMER
THE SERVICES ARE PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS. ZYG EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS IN RESPECT OF THE PLATFORM, PORTAL, ACCOUNT, SERVICES AND MARKETING MANAGEMENT INCLUDING, WITHOUT LIMITATION, EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY OR ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE REGARDING THE PLATFORM AND THE SERVICES. IN ADDITION, ZYG DOES NOT WARRANT THAT THE PLATFORM, ACCOUNT, PORTAL, SERVICES OR MARKETING MANAGEMENT WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, MARKETING MANAGEMENT, ACCOUNT OR PLATFORM, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY PARTNER FROM ZYG OR UNDER THESE TERMS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
ZyG does not represent, warrant, or guarantee any specific business, commercial, financial, or advertising results or any other outcomes in connection with the Services or Marketing Management, including any minimum level of sales, revenue, profitability, conversion rates, retention or achievement of any KPIs. Any projections, forecasts, estimates, analytics, benchmarks, or performance metrics provided by ZyG shall not constitute a guarantee, commitment, or warranty of future performance.
LIMITATION OF LIABILITY
EXCLUDING WILLFUL MISCONDUCT GROSS NEGLIGENCE AND FRAUD, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONSULTANTS HAVE ANY LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THESE TERMS, THE PLATFORM, PORTAL, ACCOUNT, SERVICES, MARKETING MANAGEMENT OR THE ARRANGEMENTS CONTEMPLATED HEREIN, INCLUDING IN RESPECT OF LOST PROFITS, LOST REVENUE, LOST BUSINESS OPPORTUNITIES, LOSS OF GOODWILL, OR LOST DATA, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY THEREOF; PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT LIMIT (A) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14 (INDEMNIFICATION); (B) EITHER PARTY’S LIABILITY FOR BREACH OF SECTION 12 (CONFIDENTIALITY); OR (C) ZYG’S RIGHT TO RECOVER LOST PROFITS OR LOST REVENUE ARISING FROM PARTNER’S BREACH OF SECTION 2.2 (EXCLUSIVITY OF SERVICES).
EXCLUDING A PARTY'S FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, PARTNER’S BREACH OF SECTION 2.2 (EXCLUSIVITY OF SERVICES), OR PARTNER'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14.2, AND PARTNER'S OBLIGATION TO PAY ANY AMOUNT DUE UNDER THESE TERMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY'S MAXIMUM CUMULATIVE LIABILITY UNDER THESE TERMS OR ANY CAUSE OF ACTION IS LIMITED TO THE AGGREGATE PLATFORM FEES ACTUALLY RECEIVED BY ZYG IN RESPECT OF THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM OR CAUSE OF ACTION.
THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 16 REFLECT A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND ARE AN ESSENTIAL BASIS OF THE BARGAIN WITHOUT WHICH ZYG WOULD NOT HAVE AGREED TO THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE.
No Third-Party Beneficiaries. ZyG’s duties, obligations, and responsibilities under these Terms are owed solely and exclusively to Partner. Except as otherwise expressly provided in these Terms or in the applicable Order Form, these Terms shall not be construed to create any rights, remedies, or obligations, whether expressly or by implication, in favor of any other person or entity, including, without limitation, any End Users.
Term and Termination
Term. These Terms shall be effective as of the Effective Date and remain in effect for a period of twelve (12) months (the "Initial Term"), unless a different initial term is specified in the Order Form. Following the Initial Term, the Agreement shall automatically renew for consecutive twelve (12) month periods (each, a "Renewal Term" and, together with the Initial Term, the "Term") unless either Party gives written notice of non-renewal at least sixty (60) days before the end of the then-current Term.
Termination for Convenience; Buy-Out. Either Party may terminate these Terms, for any reason, by providing the other Party at least thirty (30) days’ prior written notice. Upon any termination or expiration of these Terms, the Tail Period provisions of Section 17.5 shall apply to all Open Cohorts. Partner may, at any time during the Tail Period, terminate the Tail Period with respect to all Open Cohorts by paying to ZyG a one-time buy-out amount equal to 2.5 times the aggregate Outstanding Cohort Balance of all Open Cohorts as of the date of payment, which payment shall satisfy in full the Outstanding Cohort Balance of such Open Cohorts, whereupon ZyG shall have no further right to Cohort Revenues or to operate the Open Cohorts. Unless and until Partner has paid such buy-out amount in full, ZyG shall have the right (but not the obligation), following termination or expiration of these Terms, to continue to operate and manage the Open Cohorts in accordance with Section 17.5, including to process transactions, administer refunds and Chargebacks, communicate with End Users, fulfill outstanding obligations, and manage existing subscriptions and orders. Following the end of the Tail Period (or Partner’s payment of the buy-out amount), ZyG shall have no further right to the Cohort Revenues of the Open Cohorts.
Termination for Cause. These Terms may be terminated by either Party upon written notice if the other Party is in material breach of any of its obligations under these Terms and fails to cure such breach within ten (10) Business Days after receiving written notice thereof from the other Party. Notwithstanding the foregoing, either Party may terminate these Terms immediately upon written notice to the other Party if such other Party: (a) makes a general assignment for the benefit of its creditors; (b) commences, or has commenced against it, any proceeding under any bankruptcy, reorganization, insolvency, receivership, liquidation, dissolution, or similar law, and, in the case of any involuntary proceeding, such proceeding is not dismissed within sixty (60) days of commencement; (c) applies for, consents to, or acquiesces in the appointment of a receiver, trustee, custodian, liquidator, or similar official for itself or any substantial part of its property or assets; (d) admits in writing its inability to pay its debts as they become due; or (e) takes any corporate action in furtherance of any of the foregoing. If ZyG terminates these Terms under this Section 17.3, the entire Outstanding Cohort Balance of all Open Cohorts (including any outstanding Cohort Financing Amount) shall become immediately due and payable by Partner. ZyG may recover such amounts by set-off in accordance with Section 6.3 or by any other lawful means.
Consequences of Termination. Upon the expiration or termination of these Terms for any reason (subject, in the case of Open Cohorts, to the Tail Period under Section 17.5): (i) Partner and its employees shall have no further access to the Portal, the Services, or any content available thereon, and any licenses granted herein to Partner shall immediately expire (other than Partner’s rights in the delivered copy of the Customer Data, which shall survive in accordance with Sections 13.1 and 18.1); (ii) each Party shall return, at the other Party’s direction, to the other Party or destroy all Confidential Information of such other Party in accordance with Section 12.5; (iii) any unpaid or outstanding amounts due to ZyG under these Terms as of the effective date of termination, including, without limitation, the Platform Fees, reimbursable expenses, Chargebacks, refunds, taxes, payment processor charges, and any other amounts that ZyG is entitled to deduct, retain, or recover under these Terms. Such amounts shall become immediately due and payable as of the effective date of termination and shall be paid to ZyG, provided that the Outstanding Cohort Balance (including any outstanding Cohort Financing Amount) shall be recoverable by ZyG solely through the Waterfall during the Tail Period or through the buy-out under Section 17.2, in accordance with Sections 6.4 and 17.5 and subject to Section 6.3 ; (iv) Customer Data shall be delivered to Partner in accordance with Section 13.1; and (v) Partner shall remain responsible for the Products, for customer support (to the extent allocated to Partner in the Order Form) and, where Partner is responsible for fulfillment, for the fulfillment of all Products ordered before the end of the Tail Period.
Tail Period. Following the effective date of termination or expiration of these Terms: (a) ZyG shall not deploy any further Cohort Financing, and Partner shall have no obligation in respect of any marketing spend incurred by ZyG after such date; (b) each Open Cohort shall continue to be operated by ZyG on the Platform, and the Waterfall shall continue to apply to its Cohort Revenues (including the Platform Fee on its Net Revenue and repayment of its Outstanding Cohort Balance), until the earliest of (i) full recovery of the Outstanding Cohort Balance of such Cohort and (ii) twelve (12) months after the effective date of termination or expiration; and (iii) Partner’s payment of the buy-out amount under Section 17.2 (the "Tail Period"); (c) during the Tail Period the terms of these Terms (including Sections 2.2 and 2.3 solely in respect of the Open Cohorts and the Account) shall continue to apply to the Open Cohorts, and ZyG may continue to process transactions, administer Chargebacks, communicate with End Users and manage existing subscriptions and orders; and (d) at the end of the Tail Period, any remaining Outstanding Cohort Balance shall be extinguished except as provided in Section 6.3.
Suspension. ZyG may suspend or terminate any Account and Cohort with immediate effect and may take any other corrective action it deems appropriate upon occurrence of any violation of these Terms, or any fraudulent, harassing, illegal or abusive behavior, or behavior that may result in violations of ZyG’s obligations to third parties or adversely impact ZyG’s reputation.
Miscellaneous
Survival. The following shall survive termination or expiration of these Terms for any reason: (a) Sections 1 (Definitions), 4 (Consideration; Payment, in respect of accrued amounts and Open Cohorts), 5 (Taxes), 6 (Cohort Financing, to the extent of Open Cohorts and outstanding amounts, including ZyG's rights under Sections 6.3, 6.4 and 6.8, subject to Section 17.5(d)), 7.1, 7.5(b), 7.7, 8 (as to termination of the Portal license), 10.4, 10.5, 10.6 (to the extent stated therein), 10.9, 11 (Intellectual Property Ownership), 12 (Confidentiality), 13 (Data Privacy), 14 (Indemnification), 15 (Warranty Disclaimer), 16 (Limitation of Liability), 17 (Term and Termination), and 18 (Miscellaneous); and (b) any other provision that by its nature is intended to survive termination.
Relationship. The Parties are independent contractors, and nothing in these Terms shall be construed to create a partnership, joint venture, agency, or employment relationship between them. Neither Party shall have the power or authority to enter into agreements or obligations of any kind on behalf of the other and shall have no power or authority to bind or obligate the other in any manner.
Publicity. During the Term and thereafter, ZyG may refer to Partner as a customer or partner, including by displaying Partner’s name and logo on ZyG’s website and other marketing materials, without Partner’s prior approval.
Notices. Any notice required or permitted under these Terms shall be in writing and sent by email (with electronic confirmation of delivery) to the email address of the receiving Party. Any such notice shall be deemed received on the next Business Day following the date of transmission.
Entire Agreement and Amendment. These Terms (comprising these Partner Terms, the Schedules, each Order Form and the documents expressly incorporated by reference) sets forth the entire agreement between the Parties regarding the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions whether oral or written between the Parties regarding such matters. Except as otherwise expressly provided in these Terms (including Section 18.10), no amendments or waivers shall be effective unless in writing and executed by both Parties. No terms contained in any purchase order, vendor registration form or similar document issued by Partner shall apply.
Assignment. Partner may not assign any rights or obligations under these Terms to any third party and assignments in violation of the foregoing shall be void. ZyG may, in its sole discretion, assign any of its rights or obligations under these Terms.
Severability. If any part of these Terms is found invalid or unenforceable by a court of competent jurisdiction, such part shall be interpreted to give maximum effect to its terms as possible under applicable law, and the remainder of these Terms shall remain in effect.
Waiver. No failure or delay by either Party in exercising any right, power, or remedy under these Terms shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. The rights and remedies provided herein are cumulative and not exclusive of any rights or remedies provided by law.
Governing Law and Jurisdiction. These Terms shall be governed by the laws of the State of Israel, without regard to its conflicts of law principles. Each Party hereby irrevocably submits to the exclusive jurisdiction of the competent courts located in Tel Aviv-Jaffa, Israel for the resolution of any dispute arising out of or relating to these Terms, and each Party irrevocably waives any objection to the laying of venue in such courts and any claim that such courts are an inconvenient forum.
Changes to these Partner Terms. ZyG may update these Partner Terms (including the Schedules) from time to time by posting the updated version at the URL referenced in the Order Form and updating the "Last updated" date. ZyG will notify Partner of material changes by email to Partner's notice address or via the Portal at least thirty (30) days before they take effect. Changes take effect on the stated effective date, except that changes required by applicable law or that do not materially reduce Partner's rights may take effect on posting. Partner's continued use of the Services and Platform after the effective date constitutes acceptance.
Schedule 1
Fulfillment Standards
This Schedule 1 sets forth the Fulfillment Standards applicable to Partner pursuant to Section 7.4 of the Partner Terms. Capitalized terms used but not otherwise defined in this Schedule 1 shall have the meanings ascribed to them in the Partner Terms.
Definitions
“Complete Orders” means the percentage of delivered orders received without verified missing or incorrect Products.
“Damage-Free Rate” means the percentage of delivered orders received without verified Product defects or shipping damage.
“On-Time Delivery Rate” means the percentage of orders delivered to the End User within the Delivery SLA, measured from order placement to final delivery.
“Product Acceptance” means the percentage of delivered orders that do not result in a verified Product-related rejection or dissatisfaction.
“Total Return Rate” means the percentage of delivered orders resulting in a completed End User return.
“Pre-Ship Cancellation Rate” means the percentage of orders cancelled prior to fulfillment.
Service Levels
SLA | Target |
Fulfillment SLA | ≤ 2 Business Days |
Delivery SLA | 6–8 Business Days after shipment |
End-to-End Customer SLA | ≤ 10 Business Days from order placement to delivery |
Operational Standards
Metric | Required Standard |
|---|---|
On-Time Delivery Rate | ≥ 96.0% |
Complete Orders | ≥ 96.0% |
Damage-Free Rate | ≥ 96.0% |
Perfect Order Rate
The Perfect Order Rate (“POR”) is calculated as: On-Time Delivery Rate × Complete Orders × Damage-Free Rate Performance shall be evaluated using the following thresholds:
Performance Status | POR Standard |
|---|---|
Scale | ≥ 90.0% |
Caution | 88.0% – 89.9% |
Stop | < 88.0% |
Operational Health Standards
Operational Health Standards are evaluated independently of Perfect Order Rate. Failure to satisfy the Acceptable Standard constitutes an Operational Health failure regardless of overall POR.
Metric | Acceptable Standard | Caution Threshold | Stop Threshold |
|---|---|---|---|
Product Acceptance | ≥ 96.0% | 90.0% – 95.99% | < 90.0% |
Remedies
Where Partner’s performance falls within a “Caution” status, the Parties shall promptly confer and Partner shall implement a remediation plan reasonably acceptable to ZyG. Where Partner’s performance falls within a “Stop” status, or Partner fails to remedy a “Caution” status within thirty (30) days, ZyG may pause marketing activities for the affected Products. Without limiting any other rights or remedies available to ZyG under the Agreement, ZyG may, in its sole discretion, assume responsibility for fulfillment in accordance with Sections 7.4 and 7.5 of the Partner Terms. Any direct costs, expenses, or losses incurred by ZyG as a result of Partner's failure to meet the Fulfillment Standards, including costs associated with re-shipping orders, processing refunds and Chargebacks, and addressing End User complaints, shall be subject to Partner's indemnification obligations under Section 14.2 of the Partner Terms.
Schedule 2
Waterfall Appendix
Gross Revenue | Revenue collected from customers, including shipping charges and excluding sales taxes/VAT collected on behalf of authorities | $100,000 |
(Refunds) | ($1,500) | |
(Chargeback) | ($500) | |
(Third Party Processing Fees) | Shopify Payment Processing Fees, Recharge Fees, Amazon Fees | ($3,200) |
Collected Revenue | Actual revenue collected by ZyG | $94,800 |
(ZyG Platform Fee) | ($11,376) | |
(Fulfillment cost) | ($10,430) | |
Retained Revenue | $72,994 | |
(Cohort financing) | Until cohort marketing is fully recouped, afterward all retained revenue flows to partner payout | ($50,000) |
Partner payout | $22,994 |
Schedule 3
Platform Fee
If ZyG provides Cohort Financing the Platform Fee shall be as described below.
If there is no Cohort Financing the Platform Fee shall be- 10% of Net Revenue, as further detailed in Section 6.5.
(a) Launch Period. During the Launch Period, the Platform Fee is 12% of Net Revenue.
(b) Pricing Periods. For each subsequent Pricing Period, the Platform Fee is determined by reference to the NCROAS achieved during the immediately preceding Pricing Period, in accordance with the following table:
NC ROAS | Platform Fee |
|---|---|
1.30 and above | 12.0% |
0.95 – 1.29 | 13.0% |
0.85 – 0.94 | 14.0% |
0.75 – 0.84 | 15.0% |
Following the effective date of termination or expiration of these Terms, the rate in effect on that date continues to apply to the Open Cohorts throughout the Tail Period.
Measurement and Notification.
Within five (5) days after the end of each Pricing Period, ZyG shall calculate the NCROAS for that Pricing Period from Platform data and shall notify Partner, through the Portal, of the Platform Fee rate applicable to the following Pricing Period. The rate applies from the first day of that Pricing Period.