Service Terms and Conditions
Last Modified: June 28, 2018
THE ORDER FORM(S) OF BUILD YOUR FIRM, INC. ("PROVIDER") AND THESE SERVICE TERMS AND CONDITIONS (COLLECTIVELY, THIS "AGREEMENT") SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE CUSTOMER IDENTIFIED IN THE ORDER FORM ("CUSTOMER") AND PROVIDER CONCERNING CUSTOMER'S ACCESS TO AND USE OF PROVIDER'S APPLICATIONS, WEBSITES, CONTENT, PRODUCTS, HOSTING, AND SERVICES, INCLUDING "PROFESSIONAL" AND "PLATINUM" AND "PLATINUM+" DESIGNATED SERVICES AND THE BIZPAYO SERVICES (AS SET FORTH IN CUSTOMER'S ORDER FORM AND AS FURTHER DESCRIBED IN THIS AGREEMENT, THE "SERVICES").
Access to and use of the Services constitutes agreement to be bound by this Agreement, which establishes a contractual relationship between Customer and Provider. If Customer does not agree to this Agreement, Customer may not access or use the Services. This Agreement expressly supersedes prior agreements or arrangements between Customer and Provider.
Supplemental terms may apply to certain Services, such as policies for a particular service, and such supplemental terms will be disclosed to Customer in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, this Agreement for the purposes of the applicable Service(s). Supplemental terms shall prevail over this Agreement in the event of a conflict with respect to the applicable Service(s).
"Access Credentials" means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Hosted Services.
"Action" has the meaning set forth in Section 13.1.
"Agreement" has the meaning set forth in the preamble.
"Authorized User" means each of the individuals authorized to use the Services pursuant to Section 3.1 and the other terms and conditions of this Agreement.
"Availability Requirement" has the meaning set forth in Section 5.1.
"Available" has the meaning set forth in Section 5.1.
"Backup Policy" has the meaning set forth in Section 6.
"Bank" means that certain bank specified in the Merchant Application.
"BizPayO Services" means Transaction processing services provided by Provider and its designated third parties.
"Confidential Information" has the meaning set forth in Section 10.1.
"Customer" has the meaning set forth in the preamble.
"Customer Data" means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services and includes Payment Data.
"Customer Failure" has the meaning set forth in Section 4.2.
"Customer Indemnitee" has the meaning set forth in Section 13.1.
"Customer Systems" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
"Disclosing Party" has the meaning set forth in Section 10.1.
"Documentation" means any manuals, instructions or other documents or materials that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
"Effective Date" has the meaning set forth in Section 11.1.
"Exceptions" has the meaning set forth in Section 5.1.
"Fees" has the meaning set forth in Section 8.1.
"Force Majeure Event" has the meaning set forth in Section 15.1.
"Harmful Code" means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by this Agreement. Harmful Code does not include any Provider Disabling Device.
"Hosted Services" has the meaning set forth in Section 2.2.
"Indemnitee" has the meaning set forth in Section 13.3.
"Indemnitor" has the meaning set forth in Section 13.3.
"Initial Term" has the meaning set forth in Section 11.1.
"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.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
"Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
"Merchant Application" means either an online or paper based application and agreement entered into among Bank, Processor and Customer.
"Order Form" means the order form or forms from Provider (submitted in written form or online) and the Customer account registration form evidencing the order or orders for the Services, including the initial order and any subsequent order, specifying, among other things, the Initial Term, the specific Services ordered, the Fees, and such other charges and terms as agreed between the parties.
"Payment Data" means Customers' clients' names, mailing and shipping addresses, email addresses, phone number, credit card, debit card, ACH information, e-check information, dollar amount of transactions, types of transactions, descriptions of transactions and any information related to a Transaction for the purpose of providing Customer with the BizPayO Services.
"Permitted Use" means any use of the Services by an Authorized User for the benefit of Customer solely in or for Customer's business operations.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
"Personal Information" means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located.
"Privacy and Security Policy" has the meaning set forth in Section 7.1.
"Process" means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. "Processing" and "Processed" have correlative meanings.
"Processor" means an electronic payment processor that accepts Transactions from Provider and processes Transactions for Customer.
"Processors and Gateways" means any third party whom Provider may refer for the processing and settlement of Transactions.
"Prohibited Data" has the meaning set forth in Section 7.3
"Provider" has the meaning set forth in the preamble.
"Provider Disabling Device" means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Provider or its designee to disable Customer's or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.
"Provider Indemnitee" has the meaning set forth in Section 13.2.
"Provider Materials" means the Service Software, Specifications, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data or other content derived from Provider's monitoring of Customer's access to or use of the Services, but do not include Customer Data.
"Provider Personnel" means all individuals involved in the performance of Services as employees, agents or independent contractors of Provider or any Subcontractor.
"Provider Systems" means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third-party services.
"Receiving Party" has the meaning set forth in Section 10.1.
"Reimbursable Expenses" has the meaning set forth in Section 8.3.
"Renewal Term" has the meaning set forth in Section 11.2.
"Representatives" means, with respect to a party, that party's and its Affiliates' employees, officers, and directors. Provider's Representatives also includes Provider's consultants, agents, independent contractors, service providers, sublicensees, subcontractors and legal advisors.
"Resultant Data" means information, data and other content that is derived by or through the Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.
"Scheduled Downtime" has the meaning set forth in Section 5.3.
"Service Credit" has the meaning set forth in Section 5.2.
"Service Level Failure" has the meaning set forth in Section 5.1.
"Service Period" has the meaning set forth in Section 5.1.
"Service Software" means the Provider software application or applications and any third-party or other software, including, without limitation, the Website (excluding Customer Data), and all new versions, updates, revisions, improvements and modifications of the foregoing, that Provider provides remote access to and use of as part of the Services.
"Services" has the meaning set forth in the preamble.
"Specifications" means the specifications for the Services set forth (a) in the Documentation, and (b) as may be provided in Customer's Order Form.
"Subcontractor" has the meaning set forth in Section 2.6.
"Support Schedule" has the meaning set forth in Section 5.4.
"Support Services" has the meaning set forth in Section 5.4.
"Term" has the meaning set forth in Section 11.2.
"Territory" means the worldwide.
"Third Party Materials" means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Provider.
"Transaction" means any credit or debit card authorization, ACH authorization, e-check authorization, credit, ticket only, batch settlement, decline transaction or other related transaction, completed or submitted under Customer's account to Provider.
"Website" means the website designed, developed, hosted and maintained by Provider for use by Customer, pursuant to the Specifications, using Customer Data, Provider Materials, and Third Party Materials.
2.1 Services. The specific Services available to Customer are as stated in Customer's Order Form. Customer shall not have access to or use of any Services not specifically stated in Customer's Order Form. If Customer has elected "BizPayO Services" as part of the Services, Section 17 below shall also govern such BizPayO Services.
2.2 Access and Use of the Services. Subject to and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, during the Term, Provider shall use commercially reasonable efforts to provide to Customer and its Authorized Users the Services in accordance with the Specifications and terms and conditions hereof, including to host, manage, operate and maintain the Service Software for remote electronic access and use by Customer and its Authorized Users ("Hosted Services") in substantial conformity with the Specifications 24 hours per day, seven days per week every day of the year, except for:
(a) Scheduled Downtime in accordance with Section 5.3;
(b) Service downtime or degradation due to a Force Majeure Event;
(c) any other circumstances beyond Provider's reasonable control, including Customer's or any Authorized User's use of Third Party Materials, misuse of the Hosted Services, or use of the Services other than in compliance with the express terms of this Agreement and the Specifications; and
(d) any suspension or termination of Customer's or any Authorized Users' access to or use of the Hosted Services as permitted by this Agreement.
2.3 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
(a) Provider has and will retain sole control over the operation, provision, maintenance and management of the Services and Provider Materials, including the: (i) Provider Systems; (ii) location(s) where any of the Services are performed; (iii) selection, deployment, modification and replacement of the Service Software; and (iv) performance of Support Services and Service maintenance, upgrades, corrections and repairs; and
(b) Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions or actions based on such use.
Notwithstanding anything to the contrary in this Agreement, all Services, including all Processing of Customer Data by or on behalf of Provider shall be provided solely from within, and on computers, systems, networks and other infrastructure located in, the United States.
2.4 Service Management. Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party's primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its service manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. The parties' initial service managers are set forth in Customer's Order Form. Each party shall use commercially reasonable efforts to maintain the same service manager in place throughout the Term. If either party's service manager ceases to be employed by such party or such party otherwise wishes to replace its service manager, such party shall promptly name a new service manager by written notice to the other party.
2.5 Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Provider's services to its customers, (ii) the competitive strength of or market for Provider's services or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services. The parties shall evaluate and, if agreed, implement all such requested changes in accordance with Provider's then-current change procedures. No requested changes will be effective unless and until memorialized in a written change order signed by both parties.
2.6 Subcontractors. Provider may from time to time in its discretion engage third parties to perform Services (each, a "Subcontractor").
2.7 Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate or otherwise deny Customer's, any Authorized User's or any other Person's access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with, any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 2.7 does not limit any of Provider's other rights or remedies, whether at law, in equity or under this Agreement.
3. Authorization and Customer Restrictions.
3.1 Authorization. Subject to and conditioned on Customer's payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Provider hereby authorizes Customer to access and use, solely in the Territory and during the Term, the Services and such Provider Materials as Provider may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the Specifications, and the conditions and limitations set forth in this Agreement. This authorization is non-exclusive and other than as may be expressly set forth in Section 16.8, non-transferable.
3.2 Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Provider Materials and the Third Party Materials are and will remain with Provider and the respective rights holders in the Third Party Materials.
3.3 Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
(a) copy, modify or create derivative works or improvements of the Services or Provider Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Provider Systems or Provider's provision of services to any third party, in whole or in part;
(g) remove, delete, alter or obscure any trademarks, Specifications, Documentation, EULA, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof;
(h) access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Provider customer), or that violates any applicable Law;
(i) access or use the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Provider's detriment or commercial disadvantage; or
(j) otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under Section 3.1.
4. Customer Obligations.
4.1 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Provider Personnel with such access to Customer's premises and Customer Systems as is necessary for Provider to perform the Services in accordance with the Availability Requirement and Specifications; and (c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement. Without limiting the generality of the foregoing, Customer must immediately provide Provider with all information necessary to provide the Services, including, but not limited to completing the Provider Website questionnaire, providing any Customer Data, including without limitation, specific graphics, artwork, text, materials, photography and/or biographical profiles within ten (10) days of the Effective Date.
4.2 Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement (each, a "Customer Failure").
4.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.3, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.
4.4 Non-Solicitation. During the Term and for two (2) years after, Customer shall not, and shall not assist any other Person to, directly or indirectly recruit or solicit for employment or engagement as an independent contractor any Person then or within the prior twelve (12) months employed or engaged by Provider or any Subcontractor and involved in any respect with the Services or the performance of this Agreement. In the event of a violation of this Section 4.4, Provider will be entitled to liquidated damages equal to the compensation paid by Provider to the applicable employee or contractor during the prior twelve (12) months.
5. Service Levels and Credits.
5.1 Service Levels. Subject to the terms and conditions of this Agreement, Provider will use commercially reasonable efforts to make the Hosted Services Available at least ninety-nine and one half percent (99.5%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a "Service Period"), excluding unavailability as a result of any of the Exceptions described below in this Section 5.1 (the "Availability Requirement"). "Service Level Failure" means a material failure of the Hosted Services to meet the Availability Requirement. "Available" means the Hosted Services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Specifications. For purposes of calculating the Availability Requirement, the following are "Exceptions" to the Availability Requirement, and neither the Hosted Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use the Hosted Services that is due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User; (b) Customer Failure; (c) Customer’s or its Authorized User's Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Provider pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension or termination of the Services pursuant to Section 2.7.
5.2 Service Level Failures and Remedies. In the event of a Service Level Failure, Provider shall issue a credit to Customer in the amount of ten percent (10%) of the monthly Fees for the Hosted Services due for the Service Period the Service Level Failure occurred (each a "Service Credit"), subject to the following:
(a) Provider has no obligation to issue any Service Credit unless (i) Customer reports the Service Failure to Provider immediately on becoming aware of it; and (ii) requests such Service Credit in writing within three (3) days of the Service Level Failure; and
(b) in no event will a Service Level Credit for any Service Period exceed fifty percent (50%) of the total Fees that would be payable for that Service Period if no Service Level Failure had occurred.
Any Service Credit payable to Customer under this Agreement will be issued to Customer in the calendar month following the Service Period in which the Service Level Failure occurred. This Section 5.2 sets forth Provider's sole obligation and liability and Customer's sole remedy for any Service Level Failure.
5.3 Scheduled Downtime. Provider will use commercially reasonable efforts to; (a) schedule downtime for routine maintenance of the Hosted Services between the hours of 12:00 a.m. and 5:00 a.m., Eastern Time; and (b) give Customer at least twenty (24) hours prior notice of all scheduled outages of the Hosted Services ("Scheduled Downtime").
5.4 Service Support. The Services include Provider’s standard customer support services ("Support Services") available by phone and email during normal business hours, general 9 a.m. to 5 p.m. Monday through Friday, and otherwise in accordance with the Provider service support schedule then in effect (the "Support Schedule"). Provider may amend the Support Services and Support Schedule from time to time in its sole discretion.
6. Data Backup. The Provider Systems are programmed to perform routine data backups as set out in Provider's backup policy in effect from time to time (the "Backup Policy"). Provider will deliver to Customer its then most current back-ups of Customer Data as and when set forth in the Backup Policy. In the event of any loss, destruction, damage or corruption of Customer Data caused by the Provider Systems or Services, Provider will, as its sole obligation and liability and as Customer's sole remedy, use commercially reasonable efforts to restore the Customer Data from Provider's then most current backup of such Customer Data in accordance with the then current Backup Policy.
7.1 Provider Systems and Security Obligations. Provider will employ security measures in accordance with Provider's data privacy and security policy as amended from time to time, as available on Provider's website at https://www.buildyourfirm.com or a successor website address ("Privacy and Security Policy").
7.2 Data Breach Procedures. Provider maintains a data breach plan in accordance with the criteria set forth in Provider's Privacy and Security Policy and shall implement the procedures required under such data breach plan on the occurrence of a "Data Breach" (as defined in such plan).
7.3 Prohibited Data. Customer acknowledges that the Services are not designed with security and access management for Processing Protected Health Information, as defined in 45 Code of Federal Regulations Section 160.103 ("Prohibited Data"). Customer shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Services, the Provider Systems or any Provider Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.
7.4 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer Systems; (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
7.5 Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Hosted Services.
8. Fees; Payment Terms.
8.1 Fees. Customer shall pay Provider the fees set forth in Customer's Order Form ("Fees") in accordance with this Section 8.
8.2 Fee Increases. Provider may increase Fees for any Renewal Term by providing written notice to Customer at least sixty (60) calendar days prior to the commencement of that Renewal Term, and Customer's Order Form will be deemed amended accordingly.
8.3 Reimbursable Expenses. Customer shall reimburse Provider for out-of-pocket expenses incurred by Provider in connection with performing the Services ("Reimbursable Expenses").
8.4 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income.
8.5 Payment. Customer shall pay all Fees and Reimbursable Expenses on or prior to the due date set forth in Customer's Order Form, or if not stated within thirty (30) days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars by credit card or ACH transaction. Customer shall make payments to the address or account specified in Customer's Order Form or such other address or account as Provider may specify in writing from time to time.
8.6 Late Payment. If Customer fails to make any payment when due, in addition to all other remedies that may be available:
(a) Provider may charge a fee of $20.00 in the event a Customer debit results in a return for insufficient funds, closed bank account, or any other error or condition;
(b) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys' fees, court costs and collection agency fees; and
(c) if such failure continues for thirty (30) days following written notice thereof, Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
8.7 No Deductions or Setoffs. All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than Service Credits issued pursuant to Section 5.2 or any deduction or withholding of tax as may be required by applicable Law).
8.8 BizPayo Service Payments. If Customer is not a platinum level website Service subscriber of the Provider, Customer agrees and consents to allow Provider to automatically charge a monthly fee of $19.99 (or such other fee that is applicable) directly as an ACH from the bank details provided as part of Customer’s BizPayo account registration.
8.9 Personal Guarantee: Notwithstanding if this Agreement is in the name of a business, the individual owner(s) of the Customer's business personally guarantee all fees and payments under this Agreement.
9. Intellectual Property Rights.
9.1 Services and Provider Materials. All right, title and interest in and to the Services and Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Services or Provider Materials (including Third-Party Materials) except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.3 All other rights in and to the Services and Provider Materials (including Third-Party Materials) are expressly reserved by Provider and the respective third-party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
9.2 Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 9.3.
9.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Provider, its Subcontractors and the Provider Personnel as are necessary or useful to perform the Services; and (b) to Provider as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder.
10.1 Confidential Information. In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to Section 10.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as "confidential". Without limiting the foregoing: all Provider Materials are the Confidential Information of Provider and the financial terms (but not the existence) of this Agreement are the Confidential Information of Provider.
10.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
10.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to its compliance with Section 10.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 10.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 10.3;
(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
(d) ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 10.
10.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 10.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 10.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party's outside legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
11. Term and Termination.
11.1 Initial Term. The initial term of this Agreement commences as of the date set forth in Customer's Order Form or the date of the Customer account registration (the "Effective Date") and, unless terminated earlier pursuant any of this Agreement's express provisions, will continue in effect until one (1) month from such date (the "Initial Term").
11.2 Renewal. This Agreement will automatically renew for additional successive one (1) month terms unless earlier terminated pursuant to this Agreement's express provisions or either party gives the other party written notice of non-renewal at least five (5) days prior to the expiration of the then-current term (each a "Renewal Term" and, collectively, together with the Initial Term, the "Term").
11.3 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Provider may terminate this Agreement, effective on written notice to Customer, if Customer breaches any of its obligations under Section 3.3 (Use Limitations and Restrictions), Section 10 (Confidentiality); and
(b) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and
(c) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
11.4 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Provider shall immediately cease all use of any Customer Data or Customer's Confidential Information and (i) return to Customer, or at Customer's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Customer Data or Customer's Confidential Information; and (ii) permanently erase all Customer Data and Customer's Confidential Information from all systems Provider directly or indirectly controls, provided that, for clarity, Provider's obligations under this Section 11.4(b) do not apply to any Resultant Data;
(c) Customer shall immediately cease all use of any Services or Provider Materials and (i) return to Provider, or at Provider's written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Provider Materials or Provider's Confidential Information; and (ii) permanently erase all Provider Materials and Provider's Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to Provider in a signed written instrument that it has complied with the requirements of this Section 11.4(c);
(d) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party's Confidential Information; and (ii) Provider may retain Customer Data, in the case of each of subclause (i), and (ii) in its then current state and solely to the extent and for so long as required by applicable Law; (iv) Provider may also retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in this Section 11.4(d) will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
(e) Provider may disable all Customer and Authorized User access to the Hosted Services and Provider Materials;
(f) if Customer terminates this Agreement pursuant to Section 11.3(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Provider will: (i) refund to Customer Fees paid in advance for Services that Provider has not performed as of the effective date of termination; and (ii) pay to Customer any unpaid Service Credits to which Customer is entitled;
(g) if Provider terminates this Agreement pursuant to Section 11.3(a) or Section 11.3(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Provider's invoice therefor; and
(h) if Customer requests in writing at least fifteen (15) days after the effective date of expiration or termination, subject to Section 11.4(d), Provider shall, within thirty (30) days following such expiration or termination, deliver to Customer the then most recent version of Customer Data maintained by Provider, provided that Customer has at that time paid all Fees and Reimbursable Expenses then outstanding and any amounts payable after or as a result of such expiration or termination, including any expenses and fees, on a time and materials basis, for Provider's services in transferring such Customer Data.
11.5 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.3, Section 10, Section 11.4, this Section 11.5, Section 12, Section 13, Section 14 and Section 16.
12. Representations and Warranties.
12.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
12.2 Additional Provider Representations, Warranties and Covenants. Provider represents, warrants and covenants to Customer that Provider will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
12.3 Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
12.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 12.1, SECTION 12.2 AND SECTION 12.3, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
13.1 Provider Indemnification. Provider shall indemnify, defend and hold harmless Customer and Customer's officers, directors, employees, agents, permitted successors and permitted assigns (each, a "Customer Indemnitee") from and against any and all Losses incurred by such Customer Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an "Action") by a third party (other than an Affiliate of a Customer Indemnitee) to the extent that such Losses arise from any allegation in such Action that Customer's or an Authorized User's use of the Services (excluding Customer Data and Third Party Materials) in compliance with this Agreement (including the Specifications) infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
(a) access to or use of the Services or Provider Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in the Specifications or otherwise in writing by Provider;
(b) modification of the Services or Provider Materials other than: (i) by or on behalf of Provider; or (ii) with Provider's written approval in accordance with Provider's written specification;
(c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Provider; or
(d) act, omission or other matter described in Section 13.2(a), Section 13.2(b), Section 13.2(c) or Section 13.2(d), whether or not the same results in any Action against or Losses by any Provider Indemnitee.
13.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a "Provider Indemnitee") from and against any and all Losses incurred by such Provider Indemnitee in connection with any Action by a third party (other than an Affiliate of a Provider Indemnitee) to the extent that such Losses arise out of or relate to any:
(a) Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Provider's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider;
(c) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants or obligations under this Agreement; or
(d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
13.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 13.1 or Section 13.2, as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 13.3 will not relieve the Indemnitor of its obligations under this Section 13 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
13.4 Mitigation. If any of the Services or Provider Materials are, or in Provider's opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer's or any Authorized User's use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services and Provider Materials materially as contemplated by this Agreement;
(b) modify or replace the Services and Provider Materials, in whole or in part, to seek to make the Services and Provider Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Provider Materials, as applicable, under this Agreement; or
(c) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and Provider Materials, and require Customer to immediately cease any use of the Services and Provider Materials or any specified part or feature thereof, provided that, subject to Customer's compliance with its post-termination obligations set forth in Section 11.4, Customer will be entitled to a refund equal to the pro rata amount of any pre-paid Fees for such Services or Provider Materials.
THIS SECTION 13 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND PROVIDER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
14. Limitations of Liability.
14.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO SECTION 5.2, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRIOR TO THE EVENT SUCH GAVE RISE TO THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
15. Force Majeure.
15.1 No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.
15.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
16.1 Further Assurances. Upon a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
16.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
16.3 Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party's trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that Provider may, without Customer's consent, include Customer's name and/or other indicia in its lists of Provider's current or former customers of Provider in promotional and marketing materials.
16.4 Notices. Except as otherwise expressly set forth in this Agreement, all notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a party as set forth in Customer's Order Form (or to such other address or such other person that such party may designate from time to time in accordance with this Section 16.4). Notices sent in accordance with this Section 16.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e-mail, (in each case, with confirmation of transmission), if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the third (3rd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
16.5 Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices 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. The parties intend this Agreement to 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 exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
16.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
16.7 Entire Agreement. This Agreement, together with Customer's Order Form and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
16.8 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Provider's prior written consent, which consent Provider shall not unreasonably withhold or delay. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Provider's prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 16.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
16.9 No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
16.10 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement and signed by an authorized representative of each party. 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 rights, 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.
16.11 Severability. If any 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. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
16.12 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Connecticut without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Connecticut. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Connecticut in each case located in the City of New Haven, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such 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.
16.13 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
16.14 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 10 or, in the case of Customer, Section 3.3, or Section 4.3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
16.15 Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.
17. BizPayO Services.
17.1 Online Transactions; Payment of Bills. Customer's clients shall be able to pay their bills and charges online. The Processors and Gateways manage and operate the online bill payment feature, including the processing of credit card, debit card, ACH and e-check bank account withdrawals and merchant funding.
17.2 Relationship to Referred Processors and Gateways. Provider may provide Customer an account through Processors and Gateways that allow for acceptance of credit card, debit card, ACH and e-check bank account withdrawals, and the communication between the BizPayO Services and Customer's Processor. Provider is not responsible for any actions or negligence on behalf of the Processors and Gateways and/or related parties. In addition to Customer's Merchant Application, this Agreement governs Customer's use and Provider's provision of the BizPayO Services. Customer expressly acknowledges and agrees that Provider may share information about Customer and its account, including Payment Data, with Processors and Gateways. Customer shall be billed by Processors and Gateways and Customer shall pay Processors and Gateways in accordance with the terms mutually agreed upon between Customer and such Processors and Gateways.
17.3 Limitations. Customer's use of the BizPayO Services shall be restricted to a single entity and Customer shall not submit Transactions or Payment Data to Provider or otherwise process payments on behalf of any other entity or individual. Any attempt by Customer to use the BizPayO Services for more than one entity or on behalf of another entity or individual shall result in an obligation to pay to Provider additional fees and charges and/or Provider's revocation of Customer's right to use the BizPayO Services.
17.4 Customer Obligations. Customer is solely responsible for the security of Payment Data or other information residing on servers owned or operated by Customer, or a third party designated by Customer (e.g., a Web hosting company, Processors and Gateways, or other service provider). Customer shall comply with Payment Card Industry Data Security Standards and all applicable laws and regulations governing the security, collection, retention and use by Customer of Payment Data, including, without limitation, financial information, and all other personally identifiable customer information. Customer agrees to provide notice to its clients on Customer's Web site that discloses how and why personal and financial information is collected and used, including uses governed by this Agreement.
17.5. Provider Obligations. Provider may collect, and retain information and Payment Data collected from Customer (including information and Payment Data associated with the BizPayO Services) in accordance with Provider's Privacy and Security Policy. Customer hereby consents, as a condition of its enrollment in and use of the BizPayO Services, to the collection, use, processing and transfer of Personal Information as described in this Section 17.5 and Provider's Privacy and Security Policy. Customer is solely responsible for compiling and retaining permanent records of all Transactions and Payment Data for its reference. Except as otherwise provided herein, at no time shall Provider have an obligation to store, retain, report or otherwise provide any copies of or access to any records of Transactions or Payment Data collected or processed by Provider. Customer understands that Provider may collect and hold personal or non-public information about Customer and its clients. Customer further understands and agrees that Provider, its subsidiaries, suppliers and/or their agents/contractors may transfer Payment Data among themselves as necessary for the purpose of the provision and management of the BizPayO Services, and that Provider may further transfer Payment Data to third parties assisting Provider in evaluating Customer's eligibility for, provision of, administration and management of the BizPayO Services, as well as under circumstances described in Provider's Privacy and Security Policy.
17.6 Payment Data Security. Customer agrees that, except as may be reasonably necessary in the ordinary course of business to carry out the activities to be performed by Customer hereunder or required by law, Customer will not disclose any consumer or client information to any third party. While Provider uses commercially reasonable efforts to safeguard Payment Data and Transaction data transmitted while using the BizPayO Services, Provider does not warrant that Payment Data and Transaction data will be transported without unauthorized interception or modification or that Payment Data or Transaction data will not be accessed or compromised by unauthorized third parties. Customer agrees that it will comply with all Provider security policies in effect. Customer is solely responsible for verifying the accuracy and completeness of all Transactions submitted and processed and associated with Customer's account and verifying that all corresponding funds are accurately processed. Customer acknowledges that Provider shall not be liable for any improperly processed or unauthorized Transactions or illegal or fraudulent access to Customer's account, Payment Data or Transaction data. Provider’s liability for improperly processed or unauthorized Transactions solely attributable to the negligence of Provider is limited pursuant to the terms of this Agreement. Customer warrants that it has taken such precautions as are necessary to ensure that its server and electronic systems are secure from breach or intrusion by unauthorized third parties. In the event that Customer's system is breached and an unauthorized third party has access to or has accessed Customer's systems, Customer shall notify Provider promptly of such breach and shall take such precautions as may be necessary to prevent such breaches from occurring in the future.
17.7 Termination or Suspension of Customer by a Provider Referred Processor or Gateway.
If Provider receives notice from any Processor or Gateway that it has terminated or suspended its relationship with Customer, Provider may suspend or terminate Customer's right to access and use the BizPayO Services without notice and without liability. In addition, Provider may suspend or terminate the BizPayO Services without notice and without liability upon receipt of notice from Processor or Bank that Customer is no longer entitled to send an authorization message, settlement message, or other message or Payment Data related to a Transaction to Processor.
17.8 Third Party Programs. Customer acknowledges that the BizPayO Services are designed for use with certain third-party programs, including, without limitation, certain internet browsers and software programs developed and owned by third parties. Customer will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. Provider makes no warranty, express or implied, with regard to any such third-party software.
17.9 DISCLAIMER. CUSTOMER EXPRESSLY AGREES THAT PROVIDER SHALL NOT BE LIABLE FOR ANY LOSS (HOWEVER ARISING, INCLUDING NEGLIGENCE), ARISING FROM OR RELATED TO: (I) CUSTOMER'S FAILURE TO PROPERLY ACTIVATE, INTEGRATE OR SECURE ITS MERCHANT ACCOUNT; (II) FRAUDULENT TRANSACTIONS PROCESSED THROUGH CUSTOMER'S PAYMENT PORTAL ACCOUNT; (III) ACTIONS OR INACTIONS BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, PROCESSORS AND GATEWAYS, PROCESSOR OR BANK; OR (IV) UNAUTHORIZED ACCESS TO (A) PAYMENT DATA, CUSTOMER DATA, TRANSACTION DATA OR PERSONAL INFORMATION BELONGING TO PROVIDER, CUSTOMER OR ANY THIRD PARTY AND (B) THE BIZPAYO SERVICES, OR ANY SYSTEM OR PROGRAM ASSOCIATED THEREWITH; OR (V) THE LIMITATION OF THE FUNCTIONING OF ANY SOFTWARE, HARDWARE, EQUIPMENT OR SERVICE.