Commerce Partner Agreement

1. Definitions. Unless defined elsewhere in this Agreement, capitalized terms in this Agreement are defined as follows:
   1. “API” or “Commerce API” means the application programming interfaces, software development kits (SDKs), developer tools, documentation, and related materials provided by Commerce, including any modifications or updates.
   2. “API Credentials” means credentials provided by Commerce enabling your API access.
   3. “API Terms” means the Commerce API Terms available at commerce.com/legal/api-terms.
   4. “App” means any software, website, or other service you develop or provide that interacts with, accesses, or integrates with the Commerce API.
   5. “App Store” means the Commerce website where Customers can view and add Apps on their Customer Store and is available at bigcommerce.com/apps.
   6. “Commerce Marketing Materials” means any marketing or promotional materials relating to Commerce or Commerce brands, including copyrighted content, hypertext links, domain names, icons, buttons, banners, graphic files, images and the Commerce Trademarks.
   7. “Commerce Related Entity/ies” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, Commerce.
   8. “Commerce Trademarks” means the trademarks, logos, service marks and trade names of any Commerce Related Entities, whether registered or unregistered.
   9. “Control” means owning 50% or more of the voting rights or ownership interests in the entity.
   10. “Custom App” means an App that is made available to a single Customer.
   11. “Customer” means an individual or entity that uses the Services.
   12. “Customer Agreement” means the agreement entered into between Partner and the Customer governing the Customer’s use of Partner’s services, including, if applicable, the installation and use of an App.
   13. “Customer Data” means information (including personal information) relating to a Customer, including but not limited to business, financial and product information and any Shopper Data. Where Partner uses the Commerce API, Customer Data may be delivered in the form of an API response.
   14. “Customer Store” means the Customer’s ecommerce presence hosted by Commerce. For clarity, a Customer may have more than one Customer Store.
   15. “Partner” or “you” means the individual or entity that is subject to the terms of this Agreement and participates in the Partner Program. Different types of Partners are identified in parts of this Agreement, and you may qualify as more than one type of Partner concurrently for the purpose of this Agreement, depending on the circumstances.
   16. “Payments App” means an App that enables Customers to process Shopper payments.
   17. “Partner Account” means a Partner Program account created via the Partner Dashboard.
   18. “Partner Dashboard” means the Commerce web platform that allows Partners to manage their Partner Account, including the Commerce ‘Partner Portal’ and ‘Developer Portal’.
   19. “Partner Program” means the resources made available by Commerce to Partners, including the Partner Dashboard, App Store and Theme Store.
   20. “Public App” means an App that is made available to Customers either via a URL, API integration, or through the App Store, and that is not a Custom App.
   21. “Sanctions” means any applicable economic sanctions or anti-terrorism laws or measures, including those imposed, administered, or enforced by: (i) (ii) the United States, including those imposed, administered, or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control and the U.S. State Department; Canada, including the Special Economic Measures Act, the Freezing Assets of Corrupt Foreign Officials Act, the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law), the United Nations Act, and Part II.1 of the Criminal Code and any regulations or orders issued under the foregoing; (iii) the United Nations Security Council; (iv) the European Union; (v) the United Kingdom, including those imposed, administered, or enforced by Her Majesty’s Treasury; and (vi) any other jurisdiction or governmental authority with applicable sanctions laws that Commerce, in its reasonable discretion, deems applicable.
   22. “Sanctioned Person” means any individual or entity listed or designated under Sanctions or located or resident in or organized under the laws of a country or territory that is the subject of comprehensive territorial Sanctions, or any entity directly or indirectly owned or controlled by one or more of the foregoing.
   23. “Sanctioned Region” means a region where Commerce is unable to operate due to local legal and regulatory requirements, commercial partnerships, and/or other pertinent factors, including but not limited to restrictions related to economic sanctions, trade embargoes, or other applicable laws. Commerce does not support transactions that involve these regions or persons located in or resident in or items originating from or destined for these regions.
   24. “Sensitive Personal Information” includes data revealing racial or ethnic origin, political opinions, religious beliefs, genetic data, biometric data, sexual orientation, financial data, or government-issued identification numbers.
   25. “Service” means all products or services offered by Commerce, including BigCommerce, Feedonomics, Makeswift.
   26. “Shopper” means any individual that visits or transacts via the Customer Store.
   27. “Shopper Data” means information (including personal information) relating to a Shopper, including order information, payment information, and account information.
   28. “Taxes” means all federal, provincial, state, local or other governmental sales, value added, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future.
   29. “Theme” means the templates for website layout and design that Customers may install, use and customize for their Customer Store.
   30. “Theme Store” means the Commerce website where Customers can select and install Themes on their Customer Store and is available at bigcommerce.com/theme-store.

1. Partner Basics
   1. Account Registration. To access and use the Partner Program, Partner must register for a Partner Account.
   2. Eligibility. If Partner is an individual, they must be the older of: (1) 18 years of age; or (2) the age of majority in the jurisdiction where they reside and conduct Partner activities.
   3. Business Purpose. Partner confirms that they are entering into this Agreement to engage in a business activity, not for personal, household, or family purposes.
   4. Account Creation. Partner must create a Partner Account by submitting all required information. Commerce reserves the right, in its sole discretion, to reject any application for a Partner Account. Each Partner Account must include a complete legal name and a valid email address. Partner acknowledges that Commerce will use the email address provided as the primary method of formal communication under this Agreement.
   5. Account Security. Partner is responsible for maintaining the security of its Partner Account and password. Commerce is not liable for any loss or damage resulting from Partner’s failure to secure its account credentials. Commerce reserves the right to request additional security measures or adjust security requirements at its discretion.
   6. Binding Partner. If an employee registers a Partner Account on behalf of their employer, the employer will be deemed the Partner under this Agreement. By registering a Partner Account on behalf of their employer, the employee represents and warrants that they have the full power and authority to bind their employer to this Agreement, and Partner acknowledges and agrees that Commerce is entering this Agreement in express reliance upon this warranty.
   7. Responsibility for Obligations. Partner is responsible for: (1) ensuring that its employees, agents, and subcontractors comply with this Agreement; and (2) any breach of this Agreement by its employees, agents, or subcontractors. Partner acknowledges and agrees that it remains responsible for fulfilling all obligations under this Agreement, even if any obligations are sublicensed or subcontracted to third parties, including to affiliates of Partner.
   8. Acceptance of Updates. Partner’s continued participation in the Partner Program or continued use of the Partner Dashboard or Commerce API after an updated Agreement is posted and made effective constitutes Partner’s acceptance of the updated terms. If Partner does not want to agree to any updates, Partner may terminate this Agreement in accordance with Section ‘Termination’. If Commerce updates the payment terms in this Agreement, such updates will only apply to payments and transactions occurring after the effective date of the update. For example, if the updated terms increase the Commission owed to Partner but the applicable Referred Customer was provided by Partner prior to the update, the increased commission would apply to any Commission Payments made after the update even though the Customer was referred prior to the update. Notwithstanding the foregoing, updates which decrease Commissions will not be applicable during the Initial Term of a Referred Customer’s subscription of Covered Services.
   9. Data Privacy and Processing. Partner acknowledges and agrees that its participation in the Partner Program, including any information transmitted to or stored by Commerce, is subject to the terms outlined in Section ‘Data Protection’ and Commerce’s , which is incorporated herein by reference.
   10. Requests for Information and Communication. Partner agrees to acknowledge and respond promptly to reasonable requests for information or action from Commerce. Upon request, Partner shall execute and deliver any documents or take any actions Commerce reasonably requires in relation to the Partner Program. Additionally, if Commerce contacts Partner regarding its participation in the Partner Program, Partner must acknowledge or respond to such communications promptly.
   11. Know Your Customer (KYC) Requirement. Partner must comply with Commerce’s ‘know your customer’ requirements, including providing accurate and complete information during registration and promptly updating such information as needed. Commerce may, at its sole discretion, require Partner submit additional documentation or undergo identity verification to validate compliance with applicable laws and Partner Program requirements.
   12. Compliance with Laws. Partner agrees to fulfill its obligations under this Agreement in alignment with the applicable industry leading standards and in strict compliance with all applicable laws, regulations, and rules, including securing any licenses required for Partner’s performance under the Partner Program. Partner represents and warrants that: (i) neither Partner, its affiliates, directors, officers, nor employees engaged with Commerce is a Sanctioned Person or controlled by one or more Sanctioned Persons; and (ii) Partner is not organized under the laws of, located in, or a resident of a Sanctioned Region. Additionally, in performing its obligations under this Agreement, Partner agrees not to engage, directly or indirectly, in any activity or transaction that involves, supports, or benefits a Sanctioned Person or Sanctioned Region. Should Partner become aware of or suspect a violation of this Section ‘Compliance with Laws’ or that any of these representations and warranties are no longer accurate, Partner must immediately provide written notice to Commerce.
   13. Duty to Disclose. If Partner acts as an agent on behalf of a Customer, Partner may be required by applicable law to disclose to such Customer any fees Partner is entitled to receive from Commerce under this Agreement that are associated with the Customer. As between Commerce and Partner, Partner is solely responsible for determining when such a disclosure is required and making such disclosure when required.

1. Fees and Payments
   1. Revenue Sharing Plans. Subject to the revenue sharing and fee plan associated with Partner’s activities pursuant to the Partner Program, Partner may be entitled to receive certain fees from Commerce and Commerce may be entitled to receive certain fees from Partner (the “Fees”). Amounts due to Partner from Commerce as the result of Partner utilizing Unified Billing are excluded from the term Fees. The revenue sharing applicable to the different types of Referral Plans are set out in Part B. The revenue sharing plans applicable to the different types of Developers are set out in Part C.
   2. Taxes. Any Fees payable by one Party to another Party that arise as the result of any activity under this Agreement shall be exclusive of Taxes. Such Taxes are in addition to any Fees. If Partner is exempt from payment of such Taxes, Partner must provide Commerce with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date Commerce receives and confirms the applicability of such certificate. Partner is responsible for all applicable Taxes that arise from its activities under this Agreement or its dealings with a Customer. If Taxes are not collected by Commerce in respect of Fees or a Partner transaction with a Customer, Partner is responsible for determining if Taxes are payable on such transaction, and if so, paying Taxes to the appropriate tax authorities.
   3. Partner to Commerce. For Partners not enrolled in Unified Billing, Partner will submit Fees to Commerce each month by way of wire transfer or Automated Clearing House (ACH). Any such payments made by Partner to Commerce will be made free and clear of, and without deduction or withholding for, any withholding taxes of any taxing jurisdictions. If withholding taxes must be withheld from any payment to Commerce, Partner shall increase the payment to Commerce such that the amount received by Commerce is the same as it would have been if no withholding taxes were withheld. Partner is responsible for contacting Commerce to obtain the necessary banking information to execute the transfer. If the balance owed to Commerce is less than USD $100, Partner may defer payment until the outstanding balance at the end of a month is USD $100 or more. If Partner owes Commerce any amounts, then Commerce may reduce the Fees paid to Partner by offsetting amounts due from Partner to Commerce against Fees due from Commerce to Partner under this Agreement. For Partners enrolled in Unified Billing, the terms in Part D apply.
   4. Additional Payment Information. All payments from Commerce are subject to fraud and risk analysis considerations and anti-money laundering procedures and may be withheld by Commerce during the period of investigation. Commerce may also withhold payment if Partner fails to provide Commerce with information that is required to make payment. In the event of any disputes over Fees, Commerce’s determination will be final and binding. For the avoidance of doubt, Partner is only entitled to receive Fees from Commerce if Partner is in compliance with the terms of this Agreement.
   5. Exclusions. Notwithstanding anything to the contrary in this Agreement, Commerce will not be responsible to pay any Fees:
      1. related to amounts that have been refunded to Customers by Commerce;
      2. for a Referred Customer created or owned in whole or in part by Partner;
      3. related to fraudulent sales;
      4. related to revenues that have been subject to chargebacks;
      5. to Partners who are employed by Commerce (whether full-time, part-time, term or any other employment-type relationship); or
      6. to Partners who are employed by the Customer to whom the Fees relate (whether full-time, part-time, term or any other employment-type relationship).
   6. Enforcement. If any Fees paid by Commerce are subsequently discovered to be subject to one or more of the exclusions set out in Section ‘Exclusions’ or to have been paid in error, Commerce will have the right, at its sole discretion, to: (i) reclaim any Fees paid to Partner in error; or (ii) set off the amounts from payments due to Partner in future months. If this Agreement is terminated before such amounts are fully repaid by Partner to Commerce, Partner will pay to Commerce the remaining balance within 30 days of the effective date of termination of this Agreement.
   7. Fee Reviews. In instances where Partner pays Fees to Commerce, Commerce may conduct Fee payment reviews to ensure compliance with this Agreement and the accurate calculation and payment of any Fees due (“Fee Review”). Upon Commerce’s request, Partner agrees to promptly, but in any event within 10 days, provide all relevant records and documentation reasonably necessary for Commerce to conduct a Fee Review, including financial records and transaction data related to Fee calculations. If a Fee Review identifies a discrepancy in favor of Commerce, Partner agrees to remit the outstanding amount within 10 days of receiving notice of the findings. Commerce will bear its own costs associated with the Fee Review unless the discrepancy exceeds the 10% of Fees owed to Commerce in a 12-month period, in which case Partner is required to reimburse Commerce’s reasonable and actual costs associated with the Fee Review. The findings of any Fee Review shall be deemed final unless disputed in good faith within a reasonable period after the conclusion of the Fee Review.

1. Termination
   1. Partner Termination. Partner may terminate this Agreement by un-enrolling from the Partner Program, which requires Partner to: (i) complete all its obligations under this Agreement (including any active Program Addendum); (ii) remove all its content from the Partner Program, including any Apps; (iii) cease using any Commerce APIs; and (iv) delete all of its Partner Accounts. Partner agrees that un-enrolling from the Partner Program does not relieve Partner of any contracted payment obligations under this Agreement that become due prior to such unenrollment. For the avoidance of doubt, if Partner has an App, Partner will remain subject to this Agreement, for as long as the App is connected to Commerce’s APIs, irrespective of whether Partner has a Partner Account or is otherwise enrolled in the Partner Program. For the avoidance of doubt, Developers with Apps must follow the Wind-Down Period requirements in Section ‘Wind-Down Period for App Removal’ in Part C.3 prior to termination of this Agreement.
   2. Breach of Law. If Commerce determines that Partner is or becomes a Sanctioned Person, breaches any representation, warranty, or covenant set forth in the Section ‘Compliance with Laws’, or engages in fraudulent behavior, Commerce may, at its sole discretion, take one or more of the following actions: (i) suspend some or all privileges under the Partner Program; or (ii) terminate the Partner Account entirely, upon notice but without recourse for Partner.
   3. Commerce Termination. Commerce may terminate this Agreement at any time, with or without cause, effective immediately upon notice to Partner.
   4. Consequences of Termination. Upon termination of this Agreement: (i) each Party shall return to the other, or securely destroy (and certify such destruction upon request), all property belonging to the other Party in its possession or control, including Commerce Marketing Materials and Confidential Information; (ii) Partner shall immediately cease using and displaying any Commerce Marketing Materials; and (iii) all rights granted to Partner under this Agreement, including access to the Partner Account and Partner Dashboard, Commerce API, and the right to receive any further Fees, shall immediately terminate.
   5. Survival. The following Sections of Part A will survive any termination or expiration of this Agreement: ‘Partner Basics’, ‘Fees and Payments’, ‘Termination’, ‘Intellectual Property Rights’, ‘Confidentiality’, ‘Data Protection’, ‘Disclaimer of Warranty’, ‘Limitation of Liability’, ‘Partner Indemnification’, ‘Notice of Indemnification’, and ‘General Provisions’. In addition, any provisions of this Agreement that by their nature are intended to survive, will survive termination.

1. Intellectual Property Rights
   1. Commerce Marketing Materials. Commerce grants Partner a limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to use the Commerce Marketing Materials solely as necessary to fulfill Partner’s obligations under this Agreement. This license is subject to the terms of this Agreement and Commerce’s written brand guidelines that are available through the Partner Program or the Commerce website, including commerce.com/press. Partner may use and display Commerce Marketing Materials on its website or other promotional channels solely for the purpose of marketing and promoting Commerce’s services and brands, as authorized by Commerce. Partner may not alter, amend, adapt, translate, or create derivative works of any Commerce Marketing Materials without prior written approval from Commerce. Commerce reserves the right, with reasonable prior notice, to require Partner to cease using or displaying any Commerce Marketing Materials at any time, at its sole discretion. Commerce Marketing Materials are provided "as is," without any warranties, express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, or non-infringement. Developers have additional rights to use Commerce Marketing Materials as outlined in Part C.
   2. Restrictions on Partner’s Use of the Commerce Marketing Materials. Notwithstanding Section ‘Commerce Marketing Materials’, Partner is prohibited from: (i) using the Commerce Marketing Materials, or any variations or misspellings thereof, in its business name, logo, branding, advertising, social media, domain names (including top-level domains, sub-domains, and page URLs), products, or services without Commerce’s express prior written approval for each specific use; and (ii) purchasing or registering search engine keywords, pay-per-click ads, trademarks, email addresses, or domain names that incorporate the Commerce Marketing Materials or any confusingly similar variations. Partner is strongly encouraged to designate Commerce Trademarks as negative keywords to prevent inadvertent violations.
   3. Proprietary Rights of Commerce. As between Commerce and Partner, all rights, title, and interest in and to the Partner Program, Commerce APIs, Commerce Marketing Materials, Customer-related data (including Referred Customers), Services, the Commerce API, Customer Data, and all software, documentation, equipment, templates, tools, methodologies, know-how, websites, and any other intellectual property or materials used by or related to Commerce or its Partner Program (collectively, “Commerce Property”) will remain solely owned by Commerce. To the extent any ownership rights to Commerce Property do not automatically vest in Commerce under this Agreement or otherwise, and such rights are held by Partner, Partner hereby assigns and transfers all rights, title, and interest in such property to Commerce upon its creation. Partner also waives any moral rights in such property, where applicable, and grants Commerce the right to enforce and recover for any past, present, or future infringements.
   4. Commerce’s Use of Partner’s Intellectual Property. Partner grants to Commerce a worldwide, non-exclusive, royalty-free, transferable, and sub-licensable license to use and display Partner's trademarks, service marks, logos, trade names, copyrighted content, graphic files, images, and other intellectual property (“Partner Marks”), solely as necessary to perform Commerce’s obligations and exercise its rights under this Agreement. Additionally, with Partner’s prior approval, Commerce may use Partner Marks for purposes of promoting or marketing Partner, Partner’s products or services, or as otherwise mutually agreed.

1. Confidentiality
   1. Confidential Information Defined. “Confidential Information” means any and all information disclosed by a Party or its affiliate(s) (“Disclosing Party”) to the other Party or its affiliate(s) (“Receiving Party”) that is either identified as confidential or proprietary at the time of disclosure or is information which Receiving Party knows, or reasonably should have known, is confidential. Notwithstanding the foregoing, Confidential Information excludes information which Receiving Party can establish is: (i) in the public domain through no fault of Receiving Party; (ii) already in Receiving Party’s possession at the time of disclosure by the Disclosing Party; (iii) lawfully obtained by Receiving Party from a third party without a breach of confidentiality obligations; or (iv) independently developed by Receiving Party without use of or reference to Disclosing Party’s Confidential Information.
   2. Compliance. All Confidential Information is provided ‘as-is.’ Disclosing Party makes no warranties, express or implied, regarding the accuracy or completeness of the Confidential Information. Disclosing Party shall retain all right, title and interest in and to its Confidential Information. This Agreement does not grant Receiving Party any intellectual property rights or other rights of Disclosing Party, except the limited right to use Confidential Information as permitted herein. Each Party agrees it will comply with all applicable law and regulations with respect to the disclosure and use of Confidential Information, including applicable data privacy law and export compliance regulations.
   3. Confidentiality Period. Receiving Party’s obligations with respect to Confidential Information continue for 3 years from the date of termination of this Agreement, provided, however, Receiving Party’s obligations with respect to Confidential Information that constitutes a trade secret shall continue until such Confidential Information no longer constitutes a trade secret through no fault of Receiving Party. Upon Disclosing Party’s request, Receiving Party shall promptly destroy or erase any Confidential Information it holds, except the Receiving Party may retain Confidential Information that is: (i) securely stored in archival or computer back-up systems; or (ii) required to be retained to meet legal or regulatory obligations, provided, however, that any retained Confidential Information shall remain subject to the terms of this Agreement.

1. Disclaimer of Warranty. Commerce Property is provided on an “as-is” basis. Commerce makes no representations or warranties under this Agreement and expressly disclaims all warranties, whether express or implied, including implied warranties of merchantability, non-infringement, or fitness for a particular purpose. Furthermore, Commerce expressly disclaims any representation or warranty, whether express or implied, that the Commerce Property will meet Partner’s requirements, operate without interruption, be error-free, or be free from harmful components.

1. Limitation of Liability
   1. Special and Indirect Exclusion. Excluding claims and obligations arising from or relating to: (i) Partner’s indemnification obligations under this Agreement; (ii) Partner’s breach of its confidentiality and/or data security obligations; (iii) Partner’s infringement or misappropriation of Commerce’s intellectual property rights; (iv) Partner’s payment of Fees under this Agreement; and (v) a Party’s fraud, gross negligence, or willful misconduct (collectively, the “Excluded Claims”), neither Party nor Commerce’s Related Entities shall be liable for any direct, indirect, incidental, special, consequential, punitive, or exemplary damages, including loss of profits, goodwill, use, data, or other intangible losses, even if the Parties or Commerce’s Related Entities have been advised of the possibility of such damages.
   2. Aggregate Limitation. Except for the Excluded Claims, each Party’s total aggregate liability to the other under this Agreement shall not exceed the total Fees paid to Partner by Commerce during the 12 months immediately preceding the event giving rise to the claim. This limitation applies to all causes of action in the aggregate, including breach of contract, breach of warranty, negligence, strict liability, misrepresentation, and other torts. The Parties acknowledge that the relationship between a Customer and Partner is strictly between Partner and Customer. Commerce has no obligation to intervene in any disputes between Partner and Customers. Under no circumstances shall Commerce be liable for any damages, whether direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary, or otherwise, arising from or related to Partner’s relationship with any Customer, even if Commerce has been advised of the possibility of such damages. The limitations of liability in Section ‘Limitation of Liability’, including for indemnification, apply in the aggregate, not per claim, and shall apply to the fullest extent permitted by applicable law.

Each party’s financial exposure is limited. You can’t claim indirect losses like lost profits or goodwill, and for all other claims liability is capped at the fees paid under the agreement in the prior 12 months. Certain serious claims—such as breaches of confidentiality or data security, IP infringement, fraud, and indemnification obligations—aren’t capped.

1. Indemnification
   1. Partner Indemnification. Partner agrees to indemnify, defend, and hold harmless Commerce, its Related Entities, and their respective directors, officers, employees, subcontractors, and agents from and against any third-party claims (including associated demands, causes of action, debts, liabilities, damages, losses, costs, or expenses, including reasonable attorneys’ fees, collectively, “Claims”), to the extent such Claims arise out of or relate to: (i) any allegation that Partner’s products, services, Apps, or Themes infringe upon a third party’s intellectual property or other rights; (ii) the performance, non-performance, or improper performance of Partner’s products or services, including any App or Theme; (iii) any warranties, representations, indemnities, or guarantees made by Partner regarding Commerce Property; (iv) Partner’s use of the Commerce API; (v) Partner’s failure to comply with applicable laws, including claims related to data protection, consumer protection, or regulatory requirements; and (vi) Partner Taxes, including any claims, audits, penalties, or liabilities asserted against Commerce due to Partner’s failure to collect, report, or remit any required Taxes.
   2. Commerce Indemnification. Commerce agrees to indemnify, defend, and hold harmless Partner from and against any claims, demands, or liabilities arising from a third-party claim that the Commerce API or Commerce Marketing Materials (collectively, “Commerce IP”) infringe the intellectual property rights of such third party. This indemnity applies only if Partner’s use of the Commerce IP complies fully with this Agreement, including any applicable guidelines or restrictions provided by Commerce. Commerce shall have no obligation to indemnify Partner for claims arising from: (i) modifications to Commerce IP made by Partner without Commerce’s authorization; (ii) improper or unauthorized use of the Commerce IP by Partner; or (iii) use of the Commerce IP in combination with any other product, service, or technology not approved by Commerce, where the infringement would not have occurred but for such combination.
   3. Notice of Indemnification. In claiming any indemnification under this Agreement, the party seeking indemnification (the “Indemnified Party”) must promptly provide the indemnifying party (the “Indemnifying Party”) with written notice of any claim it believes falls within the scope of the indemnifications provided herein. The Indemnified Party may, at its own expense, assist in the defense of the claim, provided that the Indemnifying Party retains control of the defense and all negotiations related to the settlement of such claim. However, the Indemnifying Party shall not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that result in, or could reasonably be expected to result in, an admission by or the imposition of liability upon the Indemnified Party without the Indemnified Party’s prior written consent. Partner agrees to promptly notify Commerce of any information that could reasonably lead to a claim, demand, or liability against Commerce or its related entities by any third party.