This End User License Agreement, including any exhibits or schedules attached hereto, which by this reference are incorporated herein (this “Agreement”), is a binding agreement between PAYMENT-AS-A-SERVICE CORPORATION, D/B/A CLICK & PLEDGE (“Licensor”) and the platform user, as the licensee of the Platform (“Licensee”).
LICENSOR PROVIDES THE PLATFORM SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON BELOW: YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE PLATFORM TO LICENSEE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY PLATFORM THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF THE PLATFORM.
- Definitions. For purposes of this Agreement, the following terms have the following meanings:
“Authorized Users” means the individual persons authorized to use the Platform or access the Licensee’s account with the express permission of the Licensee pursuant to the license granted under this Agreement.
“Confidential Information” has the meaning set forth in the Section 18.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Licensee” has the meaning set forth in the preamble.
“Licensee Link” means the Licensee’s HTML, hypertext button, or text link to the Licensee Site.
“Licensee Site” has the meaning set forth in Section 2.
“License Fees” means all license fees and other charges, including all taxes thereon, paid or required to be paid by Licensee for the license granted under this Agreement, in such amounts and at such rates as set forth on Schedule 1 attached hereto, as may be amended from time to time upon at least ninety (90) days electronic notice to Licensee.
“Licensor” has the meaning set forth in the preamble.
“Licensor Licensed Marks” means Licensor name and any service marks and logos that are provided by Licensor to Licensee.
“Licensor Site” means any internet website or software application operated by Licensor, including, without limitation, https://clickandpledge.com/, Swiper1, SMSgiving, GiveBig, and Shoutout.
“Link” means the “Click & Pledge” URL, HTML, hypertext button, or text link.
“Misuse” means Licensee’s use of the Platform that is not the Permitted Use or any use permitted by this Agreement.
“Name” means Licensee name.
“Payment” shall have the meaning set forth in Section 7(b)(i).
“Payment Processor” means third party payment processing providers integrated with the Platform by Licensor to process payments from Payees.
“Payor” means any Person making a payment, pledge, or other contribution to the Licensee through the Platform.
“Permitted Use” has the meaning set forth in Section 4.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Platform” means the Link and Licensor Site maintained by Licensor that contains an interface by which Payors may designate pledges to Licensee (to be mailed to Licensee by Payor) and initiate electronic payments to Licensee.
“Term” has the meaning set forth in Section 14.
“Third Party” means any Person other than Licensee or Licensor.
“Third-Party Licenses” has the meaning set forth in Section 6.
- Click & Pledge Platform Link. Until this Agreement is terminated, Licensor shall enable and process on-line pledges and electronic payments to Licensee from visitors to Licensee’s Internet site (the “Licensee’s Site”) via the Click & Pledge Platform. As a prerequisite to providing the Click & Pledge Platform, Licensee shall place and maintain a “Click & Pledge” HTML, hypertext button, or text link (the “Link”) on the Licensee Site. Licensor shall provide reasonable technical assistance to Licensee in placing the Link on the Licensee Site, and Licensee shall cooperate fully with Licensor in order to establish and maintain such Link, as the same may be modified from time to time. Licensee shall use the Link only to link to the Platform (as defined in Section 3) and shall not present the Link, or any images comprising the Link, in combination with any other name or mark, in connection with Licensee’s own goods or services, or in any manner that may suggest or imply that Licensee or Licensee’s goods or services are supplied by, sponsored by, endorsed by, or affiliated with Licensor. The Payment Processor will remit payment to the Licensee in respect of payments or contributions from Payors, less (i) the License Fees and (ii) the Payment Processor’s fees.
- Platform. The Link shall link the Licensee Site to a Licensee-dedicated web-page, “pop up” web page, inline form hosted on Licensor’s web servers, or POST API request from Licensee’s form to Licensor’s servers all of which shall contain an interface by which Payors may (i) designate pledges to Licensee (to be sent to Licensee by Payor) and (ii) initiate payments via credit card or other payment processing mechanism to Licensee (together with the Link, the “Platform”). The Platform may list any Licensee events, programs, funds, classes, accounts, or activities to which payments shall be credited, goods or services that may be ordered from Licensee, and other information, all as provided by Licensor. To the extent the Platform allows a Payor to order goods or services from Licensee, Licensee shall be solely responsible for all aspects of order fulfillment, other than the pledge and payment processing services of Licensor described herein.
- License Grant and Permitted Use. Subject to and conditioned upon Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, worldwide, non-transferable, non-sublicensable, revocable limited license during the Term to use, solely by and through its Authorized Users, the Platform, solely as set forth in this Section 4 and subject to all conditions and limitations set forth in Section 8 or elsewhere in this Agreement (the “Permitted Use”). This license grants Licensee the right, exercisable solely by and through Licensee, to:
- Use the Licensor name and any service marks and logos that are provided by Licensor to Licensee (collectively, the “Licensor Licensed Marks”) for the sole purpose of enabling and promoting access to the Platform by Payors. Licensee may not alter, modify, or change the Licensor Licensed Marks in any way, and Licensee shall use the Licensor Licensed Marks in such forms and manners of presentation as are acceptable to Licensor in its sole discretion. Copy owned or leased, and controlled by, Licensee. The Licensor Licensed Marks:
- will be the exclusive property of the Licensor;
- will be subject to the terms and conditions of this Agreement; and
- must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
- Use the Platform to promote, solicit, and accept payments from Payors through integration with the Licensor’s third-party payment processing providers (the “Payment Processors”) subject in all ways to the applicable terms of service and privacy policies of such Payment Processors.
- Use of Licensee Name. Licensee grants to Licensor a non-exclusive, non-transferable, revocable license to use Licensee’s name (the “Name”), logo and associated trademarks, and an HTML, hypertext button, or text link (the “Licensee Link”) to the Licensee Site to be placed on Licensor’s Internet site for the sole purpose of advertising, marketing, promoting, and publicizing the Click & Pledge Platform. Licensee shall use the Name and Licensee Link in such forms and manners of presentation as are acceptable to Licensee in its sole discretion. Licensee reserves all of its rights in the Name and all other intellectual property rights. The foregoing grants by Licensee shall be revocable by Licensee at any time by delivering written notice thereof to Licensor. The Name and Licensee Link:
- will be the exclusive property of Licensee;
- will be subject to the terms and conditions of this Agreement; and
- must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
- Third-Party Materials. The Platform may include software, content, data, or other materials, including related documentation, that are owned by Persons other than Licensor and that are provided to Licensee on licensee terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). Licensee is bound by and shall comply with all Third-Party Licenses. Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.
- Receipt. Following the successful initiation of a pledge, credit card payment, or other form of payment to Licensee via the Platform, if such electronic notifications are enabled by Licensee through the Licensor Site, Licensor will send to Licensee and Payor an email tax/payment receipt of such pledge, credit card payment, or other form of payment.
- Subject to the terms hereof, Licensor shall process with the applicable Payment Processor each payment that a Payor successfully initiates via the Platform (each, a “Payment”). The Click & Pledge Platform shall accept, and Licensor shall process, only those Payments made via Visa, MasterCard, American Express, and Discover Card (each, a “Card”) or other forms of electronic payment as Licensor may designate to Licensee from time-to-time. Licensor shall configure the Platform to accept Payments made via such of those Payment Processors as Licensee shall designate to Licensor.
- Licensee may set a minimum transaction amount to accept a Card that provides access to a credit account, provided that (1) the minimum transaction amount does not differentiate between issuers; (2) the minimum transaction amount does not differentiate between Mastercard and another acceptance brand; and (3) the minimum transaction amount does not exceed USD $10 (or any higher amount established by the Federal Reserve by regulation).
- With respect to each Payment that is processed and is not disputed, refused, or charged back by the applicable issuing bank, Licensor shall remit to Licensee an amount (the “Net Payment”) equal to (i) such Payment, less (ii) the Applicable Percentage (as defined below) multiplied by such Payment, less (iii) the License Fee, if any. The “Applicable Percentage” for any Payment made by a Payment Processor is that certain percentage which is published on Licensor’s website on the date of such Payment; provided that the Applicable Percentages are subject to increase from time to time upon thirty (30) days’ notice to Licensee in the event of an increase in the card merchant fees payable by Licensor. The difference between the Payment and the Net Payment shall be retained by Licensor to satisfy the applicable credit card merchant fee, Licensor’s fees for providing the services hereunder, and postage and handling. Licensor reserves the right to deduct the License Fee to cover its costs to Licensee. The License Fee shall mean the applicable fees of Licensor with respect to each transaction, in such amounts and at such rates as set forth on Schedule 1 attached hereto, as may be revised and updated by Licensor from time to time upon at least ninety (90) days electronic notice to Licensee.
- Without limiting the foregoing, this License Agreement includes the provisions required by: (a) the Visa International Operating Regulations relating to the Merchant Chargeback Monitoring Program, the Merchant Agreement Requirements, and Merchant Card Acceptance (the “Visa Regulations”); and (b) the applicable provisions of the Mastercard Rules (the “Mastercard Rules”), including, but not limited to, the right of Visa or Mastercard to limit or terminate Licensee’s agreement with Licensor, in accordance with such Visa Regulations or Mastercard Rules; and (c) the applicable provisions of the American Express Merchant Operating Guide, and the “American Express Card Acceptance”, in addition to the American Express program guidelines further described on Schedule 2 attached hereto. Copies of the Visa Regulations (http://corporate.visa.com/about-visa/our-business/operating-regulations.html) and the Mastercard Rules (http://www.mastercard.com/us/merchant/pdf/BM-Entire_Manual_public.pdf) are available for review online. Licensee shall periodically review the contents of the Card Brand Rules to ensure it remains in compliance with such brand rules. “Card Brand Rules” means the bylaws, operating regulations, rules, policies, and procedures of Visa, Mastercard, Discover, and American Express, in addition to Licensor’s other payment processing partners, including without limitation, PayPal, Apple Pay, and Google Pay, each as in effect from time to time.
- The American Express Merchant Operating Guide, which is a summary of the above-referenced American Express regulations, is available at www.americanexpress.com/merchantopguide. The additional terms and conditions set forth on Exhibit A attached hereto and incorporated herein shall govern Licensor’s acceptance of American Express pursuant to this License Agreement.
- Licensor shall distribute Net Payments to Licensee via Direct Deposit (ACH). Licensor shall initiate delivery of Net Payments to Licensee, per the gateway agreement.
- Licensor agrees and shall ensure that the services delivered to Licensee herein shall provide the same levels or security as those required of Licensor, and that Licensor shall transmit such data only in accordance with the Card Brand Requirements. Licensor and its agents will comply with the provisions of the Cardholder Information Security Program (“CISP”) and PCI DSS.
- Licensor shall adhere to applicable card association rules and regulations governing the transactions contemplated by this License Agreement.
- The following disclosure requirements or transaction prohibitions shall apply to this License Agreement:
- Licensee must not require any person authorized to use a Card or the accounts established in connect with a Card (each, a “Cardholder”) to complete a postcard or similar device that includes the Cardholder’s account number, a Card expiration date, signature, or any other Card account data in plain view when mailed.
- Licensee must not add any tax to transactions, unless applicable law expressly requires that Licensee be permitted to impose a tax. Any tax amount, if allowed, must be included in the transaction amount and not collected separately.
- Licensee must not request or use a Payor’s account number for any purpose other than as payment for its goods or services.
- Licensee must not enter into interchange any transaction receipt for a transaction that was previously charged back to the acquirer and subsequently returned to Licensee, irrespective of Cardholder approval. Licensee may pursue payment from its customers outside the system.
- Licensee must not accept a Visa Consumer Credit Card or Commercial Visa Product, issued by a U.S. Issuer, to collect or refinance an existing debt.
- Licensee must not accept a Card to collect or refinance an existing debit that has been deemed uncollectable by the person providing the associated goods or services.
- Licensee must not enter into interchange a transaction that represents collection of a dishonored check.
- Taxes. As between Licensee and Licensor, Licensee shall be responsible for any and all taxes payable as a result of or in connection with the use of the Click & Pledge Platform by Licensee and its Payors, except for those taxes based on the net income of Licensor.
- Use Restrictions.
- Misuse. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
- use (including make any copies of) the Platform beyond the scope of the license granted under Section 4;
- provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Platform;
- modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Platform or any part thereof;
- combine the Platform or any part thereof with, or incorporate the Platform or any part thereof in, any other programs;
- reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Platform or any part thereof, including but not limited to Confidential Information obtained by the Licensor;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Platform, including any copy thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform, or any features or functionality of the Platform, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
- use the Platform in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including:
- power generation systems;
- aircraft navigation or communication systems, air traffic control systems, or any other transport management systems;
- safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems; and
- military or aerospace applications, weapons systems, or environments;
- use the Platform in violation of any law, regulation, or rule; or
- use the Platform for purposes of competitive analysis of the Platform, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage.
- Any use of the Platform set forth in this Section 8 shall be deemed a misuse (“Misuse”) of the Platform. Licensor may immediately revoke the all licenses granted hereunder without notice in the event Licensee or any of its Authorized Users Misuse the Platform.
- Licensee acknowledges that in the event of a Misuse of the Platform, the damage to the Licensor may be difficult or impossible to calculate and that monetary damages may be insufficient to compensate Licensor for such Misuse. Accordingly, Licensee consents to the granting and enforcement of any injunctive relief by a court of competent jurisdiction or by an arbitrator as set forth herein.
- Responsibility for Use of Platform. Licensee is responsible and liable for all uses and Misuses of the Platform through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Platform by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Platform, whether such access or use is permitted by or in violation of this Agreement.
- Maintenance and Support.
- Subject to the last sentence of this Section 10, each party:
- shall be solely responsible for the development, operation and maintenance of its own internet site, for all materials that appear on its site, and for all business conducted on its site,
- shall be responsible for ensuring that materials posted on its site do not violate or infringe upon copyrights, rights of publicity, trademark rights or other rights of the other party or any third party,
- shall be responsible for ensuring that neither party deposits a transaction receipt that does not result from an act between the parties hereto or that would otherwise violate applicable money laundering regulations, and
- shall be responsible for ensuring that its business and site comply with all applicable laws, regulations, and ordinances, and that its site as well as the materials posted on its site are not defamatory, libelous, false or misleading, or otherwise illegal.
- Notwithstanding the foregoing, (x) any party supplying materials for posting on the other party’s Internet site (including the Platform) shall be solely responsible for such materials and for ensuring that such materials are not illegal and do not violate or infringe upon the rights of any third party, and (y) Licensee shall be solely responsible for all business conducted on the Platform (other than the processing of pledges and payments in accordance herewith) and for ensuring that the business of the Licensee to be conducted via the Platform complies with all applicable laws, regulations, and ordinances.
- Collection and Use of Information.
- Licensee acknowledges that Licensor may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Platform and that the collection of such information is necessary for the Licensor to fully and completely perform under this Agreement.
- Licensee agrees that the Licensor may use such information for any purpose related to any use of the Platform by Licensee or on Licensee’s equipment, including but not limited to:
- improving the performance of the Platform; and
- verifying Licensee’s compliance with the terms of this Agreement and enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the Platform.
- Intellectual Property Rights. Licensee acknowledges and agrees that the Platform are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Platform under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Licensor and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Platform and all Intellectual Property Rights arising out of or relating to the Platform, except as expressly granted to the Licensee in this Agreement. Licensee shall use commercially reasonable efforts to safeguard the Platform from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Platform and fully cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property Rights.
- Payment. All License Fees are payable in advance and are non-refundable, except as may be expressly set forth herein. Any renewal of the license or maintenance and support services hereunder shall not be effective until the fees for such renewal have been paid in full.
- Term and Termination.
- This Agreement and the license granted hereunder shall remain in effect beginning on the Effective Date until earlier terminated as set forth herein (the “Term”).
- Licensee may terminate this Agreement immediately, at any time, by delivering a written termination notice to Licensor.
- Licensor may terminate this Agreement immediately by delivering a written termination notice to Licensee, if Licensee, breaches this Agreement or without notice upon Misuse by Licensee.
- Licensor may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
- Upon expiration or earlier termination of this Agreement, (i) each party shall return, at the request of the other party, all Confidential Information of the other party, (ii) all licenses granted hereunder shall terminate automatically, and (iii) each party shall cease using or displaying all materials licensed and/or provided to it by the other party. All transactions in progress prior to the date written notice of termination is deemed given (or such later termination date specified in the notice or herein, if any) shall be completed by Licensor and Licensee shall remain liable for the fees and charges associated with such transactions. No expiration or termination shall affect Licensee’s obligation to pay all License Fees that may have become due before such expiration or termination, or entitle Licensee to any refund, in each case.
- Revocation of License. The License shall be revocable in whole or in part by Licensor immediately upon termination of the Agreement, Misuse of the Platform, Licensee failure to comply with any provision of this License or the Agreement, or on thirty (30) days written notice from Licensor to Licensee.
- Licensor Right to Subcontract. Licensor may subcontract all or any portion of the services to be performed by it hereunder. Licensor is authorized to disclose Confidential Information (as defined in Section 18) of Licensee as is reasonably necessary for Licensor to perform its duties hereunder through any subcontractors; provided that any recipient of such Confidential Information shall execute a confidentiality agreement with restrictions at least as stringent as provided in Section 18.
- Confidentiality. “Confidential Information” of a party shall mean all confidential or proprietary information and documentation of such party, whether or not marked as such. Confidential Information does not include (i) information that is or becomes generally known to others, but not as a result of breach of confidentiality obligations or other wrongful acts; (ii) information that was known to the receiving party at the time of disclosure; (iii) information learned from a third party holding same lawfully and not subject to confidentiality obligations; and (iv) information required to be disclosed by law, regulation, or court order, to the extent such requirement is actually imposed and only after prompt notice to the other party. Licensor and Licensee agree to hold the other’s Confidential Information in confidence; to use the other’s Confidential Information only to perform the duties and exercise the rights set forth in this Agreement; and not to disclose the other’s Confidential Information to third parties (except authorized employees and agents having a reasonable need to know) without the disclosing party’s express prior written consent. Licensor and Licensee shall safeguard the other’s Confidential Information against unauthorized use and disclosure with means at least as secure as it employs to safeguard its own Confidential Information, and in no event with less than reasonable means. The obligations of confidentiality herein shall survive the termination of this Agreement for so long as the information at issue continues to meet the definition of Confidential Information.
- Limited Warranties, Exclusive Remedy, and Disclaimer.
- EXCEPT AS EXPRESSLY WARRANTED HEREIN, LICENSE INTERFACE IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO PLATFORM, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE PLATFORM WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
- IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE PLATFORM; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- IN NO EVENT WILL LICENSOR’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENTOR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEEDING THE OCCURRENCE OF SUCH FACTS GIVING RISE TO SUCH LIABILITY.
- THE LIMITATIONS SET FORTH IN SECTION 19(b)(i) AND SECTION 19(b)(ii) SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
- Indemnification. Licensee agree to defend, indemnify and hold harmless the Licensor and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors (the “Indemnified Parties”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses including but not limited to attorney’s fees (each, a “Claim”) arising from: (i) Licensee use and Misuse of and access to the Platform, including any data or content transmitted or received by Licensor; (ii) Licensee violation of any term of this Agreement, including without limitation Licensee breach of any of the representations and warranties above; (iii) Licensee violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) Licensee’s violation of any applicable law, rule or regulation; (v) any content that is submitted by Licensee including without limitation misleading, false, or inaccurate information; (vi) Licensee’s willful misconduct; or (vii) any other party’s access and use of the Platform on behalf of the Licensee.
- Export Regulation. The Platform may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the Platform to, or make the Platform accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Platform available outside the US.
- US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
- Dispute Resolution.
- Arbitration. Any disagreement or dispute regarding or arising out of this Agreement, except a threat to or breach of Sections 8, 12, 18, and 19 hereof (which threat or breach shall be subject to remedies at law or at equity in a court of competent jurisdiction, including but not limited to injunctive relief) shall be subject the following dispute resolution process. In the event of such a disagreement or dispute, the Parties shall first attempt to negotiate directly, in good faith, a resolution. Should the Parties not achieve resolution by such means, the Parties shall submit to third-party mediation by a reputable mediation service, or, if the Parties are unable to agree upon a mediator, by a mediator selected by the American Arbitration Association in accordance with the commercial rules of the American Arbitration Association as in effect at that time. If such mediation fails, the Parties may invoke arbitration. Such arbitration shall be held in the Commonwealth of Virginia and shall be conducted by an arbitrator agreed to by the Parties, or, if the Parties are unable to agree upon an arbitrator, by an arbitrator provided by the American Arbitration Association. Company may require that such an arbitrator sign a certification stating that said arbitrator is not acquainted with either of the Parties or either of the Parties’ counsel. Such arbitration shall be held in accordance with the commercial rules of the American Arbitration Association.
- Attorney’s Fees. In the event either Party brings any action at law or at equity for the enforcement of any rights hereunder or in connection with any claim, controversy, or dispute arising from or in connection with this Agreement (each, a “Claim”), the prevailing Party in such Claim shall be entitled to collect from the other Party the prevailing costs, fees, and expenses incurred in such dispute, including but not limited to reasonable attorneys’ fees, in addition to damages awarded in connection therewith.
- Waiver of Jury Trial. EACH PARTY WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST THE OTHER PARTY OR ANY AFFILIATE OF SUCH OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE PARTIES AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. EACH PARTY ACKNOWLEDGES THAT IT HAS RECEIVED THE ADVICE OF COMPETENT COUNSEL.
- Waiver of Class Action. With respect to all persons and entities, all Claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless Licensor agrees otherwise, the arbitrator may not consolidate more than one person’s Claims. You agree that, by entering into this Agreement, Licensor and Licensee are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
- All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Virginia without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in either the United States District Court for the Western District of Virginia sitting in Roanoke, Virginia, or in the Montgomery County Circuit Court sitting in Christiansburg, Virginia (the “Designated Courts”) except that a party may obtain injunctive relief in any appropriate forum against actual or threatened conduct that will cause loss or damages, under the usual equity rules, and each party irrevocably submits to the non-exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court. The parties agree to attempt in good faith to resolve any dispute hereunder and to submit to mediation any dispute that arises in connection with this Agreement, except that nothing in this subsection shall impair any party’s right to terminate immediately to the extent permitted by Section 14 and Section 15. In any litigation arising from this Agreement, the prevailing party shall be entitled to recover its reasonable costs and attorney’s fees, including the fees incurred in enforcing any award or judgment, in addition to any other relief to which it may be entitled. The failure to or delay in enforcing any term of this Agreement shall not be construed as a waiver of any right under this Agreement.
- Licensor is an independent contractor of Licensee, and nothing in this Agreement or the conduct of the parties shall create a relationship of employer/employee, principal/agent, franchisor/franchisee, or partnership.
- Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction of property, or any other circumstances or causes beyond Licensor’s reasonable control.
- All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the two day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth herein or to such other address as may be hereafter specified by written notice by any party (or to such other address as may be designated by a party from time to time in accordance with this Section 24(d)).
- This Agreement and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
- Neither party may assign this Agreement or its rights and obligations hereunder without the prior written consent of the other, which consent shall not be unreasonably withheld. The headings in this Agreement are for the convenience of the reader and shall not limit or alter the substance of any provision.
- This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
- This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- For purposes of this Agreement, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Annexes, Schedules, and Exhibits refer to the Sections of, and Annexes, Schedules, and Exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
- The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
American Express Program.
Capitalized terms in this Schedule 2 are defined in the American Express Merchant Requirements. This Schedule 2 will only apply to Merchant’s participation in the American Express Program. This Agreement must be duly executed by an authorized representative who has authority to bind Merchant. Merchant must operate in a manner consistent with the American Express Brand and all applicable laws, and must comply with the following provisions:
- Merchant must comply with the policies and rules set forth in the American Express OptBlue® Program (“American Express Program” or “Program”) Operating Regulations.
- The Provider Merchant Agreement between Merchant and Sub-merchant must comply with the requirements provided in Chapter 8 of American Express Program Operating Regulations, the American Express Merchant Operating Guide, and all applicable website requirements specified in these Operating Regulations.
- Merchant shall not sign any merchant to accept Cards under the Program that is not a Sub-merchant Prospect (e.g., another Payment Aggregator) or process transactions on behalf of another Payment Aggregator.
- Merchant shall accurately describe Sub-merchant Prospect criteria in any type of communications, publications, promotional or marketing materials, whether internal, external, oral, or written.
- Processor has the right to immediately terminate this Agreement or Sub-merchant Agreement for cause or fraudulent or other activity, or otherwise upon American Express’ request.
- Merchant assumes financial liability for all settlement activity on behalf of their Sub-merchants, including Chargebacks and Credits. Merchant is also liable for all other acts, omissions, and Cardmember customer service-related issues caused by the Merchant’s Sub-merchants.
- Merchant shall (i) perform appropriate background and verification checks, credit checks, “know your customer,” and anti-money laundering (AML) checks for all their Sub-merchants and their respective Significant Owners and/or Authorized Signer(s) in accordance with Applicable Laws and otherwise as American Express may require, and (ii) provide American Express, on request, copies of policies governing these checks and otherwise respond to American Express’ requests about performance of these checks.
- Merchant shall not discriminate against American Express Card or Cards by charging Sub-merchants higher or additional fees or assessments (or both) for such services than Merchant would charge Sub-merchants for similar services Merchant provides to merchants for Other Payment Products. Any such fees or assessments must not be prohibited by Applicable Law.
- Merchant and Sub-merchant(s) shall not transfer financial liability by asking or requiring Cardmembers to waive their dispute rights.
- Merchant shall only deposit Transactions from Sub-merchants within the United States, but not Puerto Rico, the U.S. Virgin Islands, or any other U.S. territory or possession.
- Merchant must provide the names of owner(s) for each of their Sub-merchants who will be transacting on the American Express Network in accordance with the Merchant Data requirements in Section 5.4 of the American Express Program Operating Requirements.
- Merchant must ensure that its Sub-merchants comply with the Program Merchant Data Security Requirements and PCI DSS, each as described in Chapter 15, “Data Security” of the American Express Program Operating Regulations.
- Merchant must report all instances of a Data Incident immediately to Processor after discovery of the incident.
- Merchant must cease use of, and remove American Express Licensed Marks from Merchant’s website and wherever else they are displayed upon termination of this Agreement or Merchant’s participation in the Program.
- Merchant must include an express disclosure to Sub-merchants that American Express may use the information obtained in the Sub-merchant application at the time of setup to screen, communicate with and/or monitor Sub-merchant in connection with Card marketing and administrative purposes.
- Merchant acknowledges that it may be converted from the Program to a direct Card acceptance relationship with American Express if and when it becomes a High CV Payment Aggregator. Merchant expressly agrees that, upon conversion, (i) Merchant will be bound by American Express’ then-current Card Acceptance Agreement; and (ii) American Express will set pricing and other fees payable by Merchant for Card acceptance.