1.1 Subject to the terms of this Agreement, Provider will use commercially reasonable efforts to provide Customer the Provided Services in accordance with the Service Level Agreement Terms attached hereto as “(Service Level Agreement)”. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Provider account. Provider reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Subject to the terms hereof, Provider will provide Customer with reasonable technical support services in accordance with the terms set forth in (“Technical Support Services”).
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Subscription Services or any software, documentation or data related to the Subscription Services (“Software”); modify, translate, or create derivative works based on the Subscription Services or any Software (except to the extent expressly permitted by Provider); use the Subscription Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Subscription Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Customer represents, covenants, and warrants that Customer will use the Subscription Services only in compliance with Provider’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Subscription Services. Although Provider has no obligation to monitor Customer’s use of the Subscription Services, Provider may do so and may prohibit any use of the Subscription Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Subscription Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). In the event that Customer sources necessary equipment from Provider, Customer shall agree to a Statement of Work detailing such equipment and terms. Customer shall be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
2.5 Partner shall comply with all country and state end-user data compliance laws, and furthermore will indemnify Customer from any claims of Partners non-compliance of user data.
2.6 Partner uses Braintree Payment Services, where their agreements are listed as follows: a) Payment Services Agreement, and b) Data Protection Addendum. Furthermore, Partner is responsible to notify Customers and end-users that PayPal is an independent Controller for the purpose of Processing Customer Data and to include a link to their privacy statement at https://www.paypal.com/us/webapps/mpp/ua/privacy-full. Furthermore Partner is required to ensure the proper connections with Braintree Payment Services, or other Payment Provider, and Customers are indemnified from any claims on against the proper storage and sharing of personal and payment information.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Provider includes non-public information regarding features, functionality and performance of the Subscription Service. Proprietary Information of Customer includes non-public data input by Customer into the Subscription Services (“Customer Data”). The Receiving Party agrees: (a) to take reasonable precautions to protect such Proprietary Information, and (b) not to use (except in performance of the Subscription Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any that the Receiving Party can document (i) is or becomes generally available to the public, or (ii) was in its possession or known by it prior to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Proprietary Information of the Disclosing Party or (v) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Provider, its subcontractors and personnel as are necessary or useful to perform its obligations under this Agreement or any other agreement between Customer and Provider or its affiliates; and (b) to Provider as are necessary or useful to enforce this Agreement and exercise its rights hereunder. Provider shall own and retain all right, title and interest in and to (a) the Subscription Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Subscription Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Provider shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Subscription Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Provider will be free (during and after the term hereof) to (a) use such information and data to improve and enhance the Subscription Services and for other development, diagnostic and corrective purposes in connection with the Subscription Services and other Provider offerings, and (b) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4.1 Customer will pay Provider the then applicable fees described in Provided Services & Fees in accordance with the terms therein (the “Fees”). For Subscription Services, Implementation Fees and Hardware, at the time when there is a Fee due, Customer must provide credit or debit card information to Provider (the “Payment Card”). In providing such information to Provider, Customer warrants and agrees that the Payment Card is Customer’s own account or that Customer is fully authorized to use the Payment Card to pay the Fees. Customer agrees that Provider may retain the Payment Card on file to process payment for future Fees (if applicable based on the Services provided to Customer) and Customer authorizes Provider to share the Payment Card with financial institutions and payment processing firms in order to process such payments. If Customer’s use of the Subscription Services exceeds the Service Capacity set forth in each Statement of Work or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer agrees the Payment Card may be used to pay the additional fees in the manner provided herein. Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Provider has billed Customer incorrectly, Customer must contact Provider no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Provider’s customer support department. No endorsement or statement on or accompanying any check or payment shall be deemed an accord and satisfaction and Provider may accept the check or payment without prejudice to Provider’s right to recover the balance due or pursue any other remedy permitted under the Agreement. Notwithstanding other provisions of the Agreement, Customer shall be responsible for any costs Provider incurs in enforcing collection of any amounts due under the Agreement, including reasonable attorneys’ fees, court or arbitration costs, or collection agency fees.
4.2 Provider may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Provider thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Subscription Service. Customer shall be responsible for all taxes associated with Subscription Services other than U.S. taxes based on Provider’s net income.
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified above, and shall be automatically renewed for additional periods of twelve month periods (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Subscription Services up to and including the last day on which the Subscription Services are provided. Upon any termination, Provider will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Provider may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
Provider shall use reasonable efforts consistent with prevailing industry standards to maintain the Subscription Services in a manner which minimizes errors and interruptions in the Subscription Services and shall perform the Implementation Services in a professional and workmanlike manner. Subscription Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Provider or by third-party providers, or because of other causes beyond Provider’s reasonable control, but Provider shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, PROVIDER DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SUBSCRIPTION SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Provider shall hold Customer harmless from liability to third parties resulting from infringement by the Subscription Service of any United States patent or any copyright or misappropriation of any trade secret, provided Provider is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Provider will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Subscription Service (a) not supplied by Provider, (b) made in whole or in part in accordance with Customer specifications, (c) that are modified after delivery by Provider, (d) combined with other products, processes or materials where the alleged infringement relates to such combination, (e) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (f) where Customer’s use of the Subscription Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Subscription Services are held by a court of competent jurisdiction to be or are believed by Provider to be infringing, Provider may, at its option and expense (i) replace or modify the Subscription Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (ii) obtain for Customer a license to continue using the Subscription Service, or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Subscription Service.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, PROVIDER AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND PROVIDER’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO PROVIDER FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub-licensable by Customer except with Provider’s prior written consent. Provider may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Provider in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Any and all disputes arising from or in connection with this Agreement shall be prosecuted in a court of competent jurisdiction in Boise, Idaho. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Provider to serve as a reference account upon request. Each party hereto acknowledges it has been represented by legal counsel, or has had full opportunity to seek advice of legal counsel, and the parties have jointly participated in negotiation and drafting this Agreement, including any exhibits and any other attachments. In the event of an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if jointly drafted by the parties and no presumption, inference, or burden of proof shall arise favoring or disfavoring a party by virtue of authorship of any or all of the Agreement provisions. Unless the context of this Agreement clearly requires otherwise: (a) the singular shall include the plural and the plural shall include the singular wherever and as often as may be appropriate, (b) the words “includes” or “including” shall mean “including without limitation,” (c) the word “or” is not exclusive and (d) the words “hereof,” “herein,” “hereunder” and similar terms in this Agreement shall refer to this Agreement as a whole and not any particular section or article in which such words appear. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same Agreement. The parties shall treat faxed, .pdf, emailed or other electronically signed documents (including documents signed through e-sign service providers such as DocuSign) as originals; however, this shall not preclude either party from requiring the exchange of original (e.g., “wet-ink”) signatures upon the request of a party.