Last Updated: January 21, 2014
Commerce.Innovated.TM is a program developed by MasterCard International Incorporated (“MasterCard“), in partnership with SVB Financial Group (“SVB,” and together with MasterCard, “we” or “us“) aimed at helping select early stage (post-seed, pre-Series A) companies improve their operations and get ready to raise a Series A round (“Commerce.Innovated.“). At present, only businesses domiciled in the United States are eligible to apply to participate in Commerce.Innovated.
“You” (and all derivations thereof) means you individually, and if you are accepting these User TOU on behalf of a company or other legal entity, that legal entity. You represent and warrant that you are a legal resident of the United States and, if you are entering into these User TOU on behalf of a company or other legal entity, you have the authority to bind such legal entity, and that such legal entity is authorized to conduct business by the state in which you operate. IF YOU DO NOT AGREE TO THESE USER TOU, YOU MAY NOT REGISTER FOR OR APPLY TO PARTICIATE IN COMMERCE.INNOVATED.
- Registration; Submitting Your Commerce.Innovated. Application. You may register and submit a Commerce.Innovated. application by providing MasterCard with the information set forth on the Commerce.Innovated. registration and application pages and submitting the relevant supplementary materials, including certain videos described in the application and the accompanying FAQs. For details about the criteria upon which we will select participants, please read the FAQs. There is no guarantee that you will be selected to advance to the interview round or to ultimately participate if you apply.
- Protecting Your Registration and Application Information. You are responsible for all activities that occur through your Commerce.Innovated. registration and application submission, including the activities of others and regardless of whether such activities are authorized. You agree to immediately notify MasterCard of any breach or unauthorized submission of your information through Commerce.Innovated. Neither MasterCard nor its agents will be liable for any loss or damages of any kind that may arise as a result of the unauthorized use of your Commerce.Innovated. account, either with or without your knowledge; however, you may be held liable for any losses incurred by MasterCard or another party due to someone else using your Commerce.Innovated. account.
- Keeping Your Information Up to Date. You are solely responsible for maintaining up-to-date and accurate information pertaining to your Commerce.Innovated. application.
- Grant of License. So long as you comply with these User TOU, MasterCard grants you a limited, nonexclusive, as-is, revocable, nontransferable license, without right of sublicense, to use the Commerce.Innovated. site solely for the purpose of getting information about and applying to have your company participate in the Commerce.Innovated. program. You may not use Commerce.Innovated. for any other purpose and may not, or allow any other party to:
- reverse engineer, disassemble, reconstruct, or decompile any object code relating to Commerce.Innovated. (except to the extent you are expressly permitted by law to do so);
- gain access to or use MasterCard’s services or systems, or Commerce.Innovated., other than as permitted hereunder, or damage, disrupt, or impede the operation of MasterCard’s services or systems;
- use Commerce.Innovated. in connection with any fraudulent or illegal conduct, transaction or business, as determined by MasterCard in its sole discretion;
- register for Commerce.Innovated. or submit a Commerce.Innovated. application by automated means or under false or fraudulent pretenses;
- circumvent or modify any security mechanism used by or on behalf of MasterCard;
- use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” to access Commerce.Innovated. in a manner that sends more request messages to MasterCard’s servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser;
- rent, lease, loan, trade, sell/re-sell or otherwise charge any party for access to Commerce.Innovated.; or
- transmit any viruses, worms, defects, Trojan horses, or any programming of a destructive nature.
You shall comply with all applicable international, federal, state, and local laws, rules, regulations, directives and governmental requirements relating to your use of Commerce.Innovated. MasterCard and/or SVB may, in its or their sole discretion, accept or reject your request to register for Commerce.Innovated., submit a Commerce.Innovated. application or to otherwise use Commerce.Innovated., and may disable or otherwise suspend access to your Commerce.Innovated. registration and/or application at any time for any reason or no reason whatsoever, including without limitation, if MasterCard and/or SVB suspects fraud or illegal, unauthorized or improper conduct (as determined in MasterCard’s sole discretion).
- Modifications to Commerce.Innovated. While MasterCard and SVB currently make the Commerce.Innovated. site available free of charge, MasterCard may in the future charge for access to the Commerce.Innovated. site (or additional features or functionality) at any time, in our sole discretion. MasterCard may also discontinue, modify, or change Commerce.Innovated. or MasterCard’s services and systems at any time. Such changes may require you to update your contact information or other information related to your Commerce.Innovated. registration or application in order to continue using the Commerce.Innovated. site. MasterCard will have no liability or obligation to you with regard to any modifications or changes it makes to Commerce.Innovated. or MasterCard’s services or systems. Should your company be selected as a participant, your company will grant certain rights to MasterCard, as further described in the FAQs and the program documents that you will be asked to complete if your company is selected.
- Additional Products and Services. From time to time, MasterCard may contact you regarding additional MasterCard products and services that it believes may be useful to you in your business. If you do not wish to receive these messages, you may opt out by following the instructions you can find here.
- Personal Data and Data Security.
- Ownership and Rights.
- Feedback. You may provide feedback, suggestions comments, improvements, and ideas (collectively “Feedback“) to MasterCard but you are not required to do so. You agree that MasterCard may use and exploit all Feedback for any purpose without obligation of any kind and without any obligation of confidentiality, attribution, accounting, compensation, or other duty to account to you.
- MasterCard Property. As between you and MasterCard, MasterCard owns and retains all right, title, and interest, including, without limitation, all intellectual property rights, in and to (i) Commerce.Innovated., (ii) MasterCard’s systems and services, (iii) all names, trade names, trademarks, service marks, slogans, logos, domain names, or other indicia of MasterCard, including without limitation “Commerce.Innovated.” (collectively, the “MasterCard Brands“); (iv) all Feedback; and (v) all MasterCard Confidential Information, as defined below (collectively, the “MasterCard Property“). MasterCard reserves all rights in the MasterCard Property not expressly granted to you in these User TOU. Without limitation of the foregoing, you have no right to use the MasterCard Brands in any manner except as may be expressly permitted by MasterCard in advance in writing and in accordance with MasterCard’s then-current guidelines.
- Program Participant. During the term of these User TOU, you hereby grant MasterCard the right to list you as a Commerce.Innovated. user or participant in any descriptions of Commerce.Innovated. and related press releases, case studies, and other promotional and marketing materials; provided however, that MasterCard has no obligation to do so.
- Your Warranties. You represent and warrant to MasterCard that (a) the information you provide to MasterCard in connection with your Commerce.Innovated. registration and our application is true and correct; (b) you will comply with these User TOU and all applicable laws, rules, and regulations; (c) you are at least eighteen (18) years of age; (d) you are eligible for Commerce.Innovated. and have the right, power, and authority to enter into and perform under these User TOU; and (e) the name under which you have registered with Commerce.Innovated. and submitted your application is the name under which you conduct your business.
- Indemnification. You agree to indemnify and hold harmless MasterCard and its business partners, employees, representatives and affiliates (the “MasterCard Parties“) from and against any and all claims, liabilities, damages (actual and consequential), losses, fines, and expenses (including, but not limited to, legal and other professional fees and costs of investigation) arising from or in any way related to (a) your use of Commerce.Innovated.; (b) your (or anyone using your account’s) breach of these User TOU or applicable law; (c) your activities in connection with your Commerce.Innovated. registration or application; (d) your or any of your staff’s or representatives’ negligence or wilful misconduct; or (e) your or any of your staff’s or representatives’ violation of any third party’s rights, including, without limitation, claims of intellectual property infringement, breach of privacy or violation of applicable law arising under any of the foregoing clauses. You may not enter into any stipulated judgment or settlement that purports to bind MasterCard without MasterCard’s prior express written authorization, which will not be unreasonably withheld or delayed.
- Disclaimer of Warranties; No Warranties. Commerce.Innovated. IS PROVIDED “AS IS,” “AS AVAILABLE,” AND WITH ALL FAULTS. the MASTERCARD parties DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, QUALITY OF INFORMATION, QUIET ENJOYMENT, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. the MASTERCARD parties DO NOT WARRANT THAT Commerce.Innovated. or any third party sites WILL BE ERROR FREE, UNINTERRUPTED, FREE FROM SPYWARE, MALWARE, ADWARE, VIRUSES, WORMS, OR OTHER MALICIOUS CODE, OR WILL FUNCTION TO MEET YOUR REQUIREMENTS. the MASTERCARD parties DO NOT WARRANT THAT Commerce.Innovated. or any third party sites WILL WORK ON YOUR HARDWARE, WITH YOUR OPERATING SYSTEMS, OR WITH ANY OTHER SOFTWARE INSTALLED ON YOUR COMPUTERS. INFORMATION OBTAINED BY YOU FROM any MASTERCARD party WILL NOT CREATE ANY WARRANTIES. YOU ASSUME ALL RISKS ASSOCIATED WITH YOUR USE OF Commerce.Innovated. IT IS YOUR SOLE RESPONSIBILITY TO DETERMINE WHETHER Commerce.Innovated. is SUITABLE AND ADEQUATE FOR YOUR NEEDS.
YOU SPECIFICALLY ACKNOWLEDGE THAT MasterCard MAKES NO GUARANTEE THAT YOU WILL BE SELECTED TO PARTICIPATE IN THE COMMERCE.INNOVATED. PROGRAM IF YOU APPLY OR IF YOU ARE SELECTED TO ADVANCE TO THE INTERVIEW ROUND.
- Limitation of Liability.
REGARDLESS OF WHETHER ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, THE MASTERCARD PARTIES ARE NOT AND SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, ANY PROPERTY DAMAGE, LOSS OF USE, LOSS OF BUSINESS, ECONOMIC LOSS, LOSS OF DATA, OR LOSS OF PROFITS, WITHOUT REGARD TO THE FORM OF ACTION (INCLUDING, BUT NOT LIMITED TO, CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTIONS) ARISING OUT OF OR IN CONNECTION WITH (A) THESE USER TOU OR THE APPLICATION DOCUMENTS; (B) COMMERCE.INNOVATED., including YOUR USE OF COMMERCE.INNOVATED. OR any interruption of service relating to COMMERCE.INNOVATED.; (C) ANY THIRD PARTY SITE; (D) THE UNAUTHORIZED ACCESS BY ANY PARTY TO MASTERCARD’S SERVICES AND SYSTEMS, INCLUDING PERSONAL DATA; OR (E) ANY ACTIONS OR INACTIONS OF SVB, EVEN IF ANY OF THE MASTERCARD PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING DAMAGES. YOU WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST THE MASTERCARD PARTIES ARISING OUT OF YOUR USE OF COMMERCE.INNOVATED., THE APPLICATION, OR THESE USER TOU.
NOTWITHSTANDING THE FOREGOING, THE MASTERCARD PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE SHALL NOT, UNDER ANY CIRCUMSTANCES, EXCEED ONE HUNDRED DOLLARS ($100).
The foregoing limitations and exclusions apply except to the extent expressly precluded by applicable law. IN SUCH JURISDICTIONS, ALL OR A PORTION OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU AND the scope and duration of THE masterCARD PARTIES’ warrantIES and the extent of THEIR liability will be the minimum permitted under such applicable law.
- Confidential Information. “MasterCard Confidential Information” includes those portions of Commerce.Innovated. that MasterCard does not make publicly available and all information that (a) gives MasterCard a competitive business advantage, gives MasterCard the opportunity to obtain a competitive business advantage, or the disclosure of which could be detrimental to MasterCard’s interests; or (b) that is either (i) marked “Confidential,” “Restricted,” “Proprietary Information,” or other similar marking, (ii) known to be considered confidential and proprietary, or (iii) received under circumstances reasonably interpreted as imposing an obligation of confidentiality. You will treat all MasterCard Confidential Information as strictly confidential and use the same degree of care to prevent disclosure of MasterCard Confidential Information as you would use with respect to your own most confidential and proprietary information and, under no circumstances, less than the care that a reasonable person would take under the circumstances. Except as expressly provided in these User TOU, you may not use or disclose any MasterCard Confidential Information without MasterCard’s prior written consent, except as required by your employees and agents on a need-to-know basis in order to fulfill your obligations under these User TOU; provided that those employees or agents have executed written agreements that are at least as protective of MasterCard’s rights to the MasterCard Confidential Information as those contained in these User TOU. On termination of these User TOU or on MasterCard’s written request at any time, you will destroy or return to MasterCard all MasterCard Confidential Information in your custody or control. This provision will survive any termination of these User TOU for so long as you have in your possession any MasterCard Confidential Information.
- Term and Termination.
- These User TOU will be effective until terminated as provided herein. MasterCard may suspend or terminate your use of Commerce.Innovated. or these User TOU at any time, without cause effective immediately upon notice to you at the email address listed in your Commerce.Innovated. application. Such notice shall be effective as described in Section b. Without limitation of the foregoing, MasterCard may, in its sole discretion, suspend or revoke your Commerce.Innovated. registration and/or application at any time if (i) your contact information is not up-to-date or you do not respond to communications directed to you; (ii) the information you have provided to register and submit an application with Commerce.Innovated. is false, inaccurate, not current or incomplete; or (iii) you have breached, or MasterCard reasonably believes you have breached or are about to breach, any of these User TOU or any other agreement between you and MasterCard. You may terminate these User TOU at your convenience by sending a written notice to MasterCard at email@example.com with the word “terminate” in the subject line and by ceasing all use of Commerce.Innovated. However, please note that termination of these User TOU will not automatically terminate the SVB TOU, and you should refer to the SVB TOU for information on how to terminate that agreement with SVB.
- On termination of these User TOU for any reason, the rights and licenses granted to you will immediately terminate. Upon the termination of these User TOU, you shall immediately cease all use of Commerce.Innovated.; and the terms, conditions, and warranties contained in these User TOU that by their nature and context are intended to survive the termination of these User TOU shall survive, including Sections 8 (Personal Data and Data Security), 9 (Ownership and Rights), 10 (Your Warranties), 11 (Indemnification), 12 (Disclaimer of Warranties), 13 (Limitation of Liability), 14 (Confidential Information), 15 (Term and Termination), 16 (Remedies), 18 (Additional Terms) and 19 (Miscellaneous). MasterCard shall have no liability to you for any damages, loss of profits or other claims arising from the termination or suspension of your access to Commerce.Innovated.
- Remedies. You acknowledge and agree that your breach of this Agreement relating to the licenses granted herein and your use of MasterCard Confidential Information may result in irreparable harm and permanent injury to MasterCard for which monetary damages would be an inadequate remedy. Consequently, you acknowledge and agree that, in such circumstances, MasterCard will be entitled to seek and obtain, without the posting of a bond, in addition to all other remedies available to MasterCard, at law or in equity, immediate injunctive relief to prevent or stop any breach of those provisions.
- U.S. Use Only and Government Restrictions.
- United States Use Only. Commerce.Innovated. may only be used by individuals and businesses located in the United States. You represent and warrant that, you are either a legal resident of the United States or a legal entity that is authorized to conduct business by the state or province in which you operate. You may not export Commerce.Innovated.
- Government Restrictions. With respect to use of Commerce.Innovated. or MasterCard Confidential Information by or on behalf of the U.S. federal government, the technical data and software rights related to all of the foregoing provided by MasterCard include only those rights and licenses provided pursuant to these User TOU and are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202 (Commercial Computer Software or Computer Software Documentation).
- Additional Terms. In addition to the terms and conditions in these User TOU, your use of Commerce.Innovated. is subject to any other agreements between you and MasterCard relating to other products and services you obtain from MasterCard, all of which are incorporated into these User TOU by reference. MasterCard may also make additional material available for download or use that may have additional terms and conditions that apply to your relationship with MasterCard, all of which are also incorporated into these User TOU by reference. In the event of a conflict between these User TOU and any such additional terms and conditions, the additional terms and conditions will control only with respect to their specific subject matter.These User TOU do NOT incorporate the SVB TOU, and do NOT apply to your relationship with SVB. As between you and SVB, refer to the SVB TOU.
- Entire Agreement. These User TOU constitute the entire agreement between you and MasterCard with regard to their subject matter. As between you and SVB, see the SVB TOU for the terms which govern your relationship with SVB.
- TOU Modifications. MasterCard may, at any time and from time-to-time, change the terms of these User TOU or provide other disclosures and notices regarding Commerce.Innovated. by posting them on the Commerce.Innovated. site or emailing them to you at your email address. You will be deemed to have received those changes, disclosures and notices within 24 hours after MasterCard posts them on the Commerce.Innovated. site or emails them to you. If you do not accept any revisions to these User TOUs, your only recourse is to stop using Commerce.Innovated. and to terminate these User TOU by sending a termination notice to MasterCard as described in Section a. Your continued use of Commerce.Innovated. after such effective date constitutes your acceptance of the revisions.
- Relationship of the Parties. These User TOU do not create and shall not be construed as creating a joint venture, co-ownership, partnership, or agency relationship between you and MasterCard.
- MasterCard Third Party Beneficiaries. You acknowledge and agree that each affiliate of MasterCard is a third party beneficiary to these User TOU. No other person or company is a third party beneficiary to these User TOU.
- Governing Law. These User TOU will be governed by the laws of the State of New York, without giving effect to any principles of conflicts of law or the UN Convention on the International Sale of Goods. Any action at law or in equity arising out of or directly or indirectly relating to these User TOU may be instituted only in the Federal or state courts located in Westchester County, New York. You and MasterCard consent and submit to the personal jurisdiction of those courts for the purposes of any action related hereto and waive any objection thereto, including forum non conveniens. You agree that regardless of any statute or law to the contrary, any claim or cause of action that you may have arising out of or related to these User TOU must be filed within one (1) year after the claim or cause of action arose. THE PARTIES WAIVE ANY RIGHT TO A JURY TRIAL.
- Waiver. MasterCard’s failure or delay to exercise or enforce any right or provision of these User TOU or any rights under applicable law shall not constitute a waiver of any of those provisions or rights. If any provision of these User TOU is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court shall endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these User TOU remain in full force and effect.
- Headings. The section headings in these User TOU are for convenience only and have no legal or contractual effect.
- Assignment. You may not assign or transfer your rights or obligations under these User TOU. Any purported assignment in violation of the foregoing will be null and void ab initio.
- Force Majeure. MasterCard shall not be liable for any delay or failure to perform their obligations hereunder resulting from any cause beyond their reasonable control.