Last Updated: January 4, 2024

This MERCHANT AGREEMENT (the “Agreement”) is made by and between the merchant identified in a signed MSS (“Merchant”) and Spendgo, Inc. (“Service Provider”). It is important that Merchant understand Merchant’s responsibilities and the limitations to the services which Merchant chooses to use. Our services are diverse and as a result additional service specific terms may apply. If this is the case, these service specific terms shall become part of the Agreement.

Please use Spendgo services responsibly. By using the Spendgo website or any services, Merchant agrees to these Terms. Take note that these Terms change from time to time. If Merchant has used Spendgo services before, Merchant cannot assume that the Terms are still the same. Merchant should review the terms on a regular basis as the same will be published online with the date of the last change noted at the top.

1. DEFINITIONS.

1.1 “Deliverables” means any deliverables resulting from Professional Services, as set forth and described in an MSS.

1.2 “Documentation” means text and/or graphical documentation, whether in the Online Platform or printed format, that describe the features, functions and operation of the Service Provider Services, which materials are designed to facilitate use of the Service Provider Services and which are made available by Service Provider to the Merchant.

1.3 “Local Software” means any software, other than the Online Platform, made available by Service Provider to the Merchant, including any mobile application and any API.

1.4 “Loyalty and Digital Receipt Services” means, to the extent purchased by Merchant as set forth in an MSS, the loyalty and digital receipt services set forth and described at https://www.spendgo.com/serivcedescription.

1.5 “Identity Management Services” means, to the extent purchased by Merchant as set forth in an MSS, the identity management services set forth and described at https://www.spendgo.com/serivcedescription.

1.6 “Content” means photographs, texts, images, videos, incentives and rewards program content and any other content made available by Merchant to Service Provider for use by Service Provider in accordance with this Agreement.

1.7 “Merchant Marks” means trademarks, service marks and logos owned and made available by Merchant to Service Provider for use by Service Provider in accordance with this Agreement.

1.8 “Merchant Transaction Data” means Transaction Information that that Service Provider collects, at the point of sale, related to a transaction within a Merchant’s store, as well as any other data that Merchant directly provides to Service Provider (including purchase data and prior purchase or loyalty program data).

1.9 “Messaging Services” means, to the extent purchased by Merchant as set forth in an MSS.

1.10 “MSS” means a merchant service summary entered into by the parties.

1.11 “Online Platform” means the online, web-based applications or platform provided by Service Provider for the SaaS Services.

1.12 “Professional Services” means, to the extent purchased by Merchant as set forth in an MSS.

1.13 “Member” means an individual who is also one of Merchant’s purchasers, end users or customers.

1.14 “Registered Member” means a Member who has agreed to the Spendgo Terms of Use (whether online, through a mobile app, at the point of sale, or otherwise).

1.15 “SaaS Services” means the Loyalty and Digital Receipt Services, the Identity Management Services or other services as described at https://www.spendgo.com/serivcedescription.

1.16 “Service Commitment” means the initial term for which Merchant has committed to a subscription for SaaS Services as set forth in an MSS.

1.17 “Service Provider Services” means the Professional Services, the Messaging Services and the SaaS Services. In addition, Service Provider Services includes any Local Software, Online Platform, Deliverables, and Documentation made available by Service Provider to the Merchant in connection with the provision of Professional Services, Messaging Services or SaaS Services.

1.18 “Spendgo Data” shall mean any and all information associated with or relating to a Registered Member’s Spendgo account and any information that Service Provider collects or receives from or about a Registered Member, as well as aggregate or statistical information derived from Transaction Information, the Local Software, the Online Platform, or from Spendgo’s online website or mobile applications.

1.19 “Transaction Information” means information that Service Provider collects or receives from or about Members, including transaction information, demographic information, online information, and other information it collects via the Service Provider Services.

2. SERVICE PROVIDER SERVICES.

2.1 Description of Service Provider Services. Service Provider shall (i) perform the Professional Services, (ii) perform the Messaging Services and (iii) provide the SaaS Services set forth in each MSS. Each MSS executed by both parties is governed by this Agreement. Any individual Service that Merchant selects in an MSS shall be provided as set forth and described at https://www.spendgo.com/serivcedescription (the “Service Description“). By accepting these Terms, Merchant accepts the application of the Service Description and confirm that Merchant is familiar with them. Service Provider reserves the right to change or modify the Service Description at any time and in its sole discretion.

2.2 Local Software. The Service Provider hereby grants to Merchant a non-exclusive, non-transferable, non-sublicensable license to use the object code version of the Local Software to access the Service Provider Services, solely for Merchant’s internal business purposes. Merchant acknowledges that the Service Provider may from time to time issue upgraded versions of the Local Software, and may automatically electronically upgrade the version of the Local Software that Merchant is using. Merchant consents to such automatic upgrading. The foregoing license grant is not a sale of the Local Software or any copy thereof, and the Service Provider and its third-party licensors or suppliers retain all right, title, and interest in and to the Local Software (and any copy of the Local Software).

2.3 Loyalty and Digital Receipt Services. If Service Provider provides Loyalty and Digital Receipt Services Merchant retains the legal obligation to redeem the program incentives for the goods and/or services promised to the Member under the incentive and rewards program. Merchant will be solely responsible for ensuring that the date on which an incentive is set to expire (the "Incentive Expiration Date") and the terms of Merchant’s program incentives comply with all applicable law. Merchant acknowledges and agrees that in certain jurisdictions, applicable law regulates the permitted expiration of incentives or prohibits the expiration of incentives, and may require Merchant to allow such redemption beyond the stated Incentive Expiration Date and/or to provide the user with a refund equal to the cash value of the incentive if the user requests a refund after the Incentive Expiration Date.

2.4 Availability and Interruption of Service. Service Provide will make the Services available to Merchant using reasonable skill and care. Merchant does however acknowledge and agree that the availability of the Services, Merchant ability to access and/or use the Services may depend upon factors beyond Service Providers reasonable control, including (but not limited to): (i) geographical or topographical shortcomings in the network of any telecommunications network operator (“Network Operator”), network capacity, physical obstructions or atmospheric conditions, (ii) rate limits or service disruptions at integrated applications, or (iii) policies or terms of an integrated application. Service Provider will not be in any way liable for any failure to make the Services available to Merchant to the extent that such failure results from a technical or other failure on the part of any integrated application or any other event which is beyond Service Provider’s reasonable control. Service Provider provides all services “as is” and “as available”, and Service Provider hereby does not warrant, represent or guarantee, whether expressly or by implication, that any Services are free of errors or interruptions, always available, fit for any purpose, secure or do not infringe any third party rights. It may be necessary from time to time for Service Provider to suspend the Services provided to Merchant for routine or emergency maintenance and/or repairs and Service Provider will, in so far as it is reasonably possible, provide Merchant with a reasonable period of notice prior to any such suspension.

2.5 Content and Merchant Marks. Merchant shall deliver Content and the Merchant Marks to Service Provider. The delivery of the Content and Merchant Marks shall occur as reasonably requested by Service Provider. Merchant hereby grants to Service Provider a non-exclusive, worldwide, fully paid, royalty-free, sublicensable license to use, copy, reproduce, distribute, modify, translate, create derivative works of, perform and display the Content and to use and display Merchant Marks for the purposes of: (a) incorporating the Content and Merchant Marks into the Online Platform and the Local Software; (b) reproducing the Content and Merchant Marks for backup and archival purposes; and (c) providing the Service Provider Services as contemplated in this Agreement. Service Provider shall be the sole and exclusive owner of any modifications to or derivative works of the Content with the exception of any Content containing Merchant Marks. Throughout the Term of this Agreement, in the event that Merchant reasonably believes Service Provider’s use of the Merchant Marks is not of a sufficiently high quality, Merchant may so advise Service Provider, and Service Provider will, within a reasonable time of the receipt of such written notice, change its use of the Merchant Marks to meet Merchant’s reasonable quality standards. Service Provider acknowledges that Merchant is the owner of the Merchant Marks, to the extent that those marks are not based upon or confusingly similar to any of Service Providers Marks. The use by Service Provider of the Merchant Marks in connection with this Agreement shall not create any right, title or interest, in or to those Merchant Marks in favor of Service Provider and all goodwill associated with the use of those Merchant Marks shall inure to the benefit of Merchant. At the expiration or termination of this Agreement, Service Provider shall immediately discontinue any use of those Merchant Marks.

2.6 Use of the Service Provider Services. Merchant shall not directly or indirectly do, or permit any party to do, any of the following: (i) copy, modify, translate, create derivative works of, publish, sublicense, sell, market or distribute the Service Provider Services or any information provided by Service Provider to Merchant via the Service Provider Services; (ii) reverse engineer, decompile, disassemble or otherwise attempt to gain access to the source code form of the Local Software or the Online Platform; (iii) use the Service Provider Services or Documentation in violation of export control laws or regulations; (iv) remove any proprietary notices from the Service Provider Services, Documentation or any other Service Provider materials furnished or made available hereunder; (v) access the Service Provider Services in order to (x) build a competitive product or service, or (y) copy any features, functions or graphics of the Service Provider Services; (vi) sell, resell, rent or lease the Service Provider Services (including any information provided by Service Provider to Merchant via the Service Provider Services), including, without limitation, use the Service Provider Services on a service bureau or time sharing basis or otherwise for the benefit of a third party; (vii) use the Service Provider Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (viii) use the Service Provider Services to store or transmit malicious code; (ix) interfere with or disrupt the integrity or performance of the Service Provider Services or any data contained therein; (x) attempt to gain unauthorized access to the Service Provider Services or their related data, systems or networks; (xi) publish or disclose to third parties any evaluation of the Service Provider Services without Service Provider’s prior written consent, or (xii) publish or disclose to third parties any data or information on Merchant’s results from using the Service Provider Services, without Service Provider’s prior written consent. Merchant shall use the Service Provider Services only in accordance with the Documentation and applicable laws and government regulations. Merchant may not use the Service Provider Services, including any data captured by the Service Provider Services, with any service or product (whether provided by Merchant or a third party) that competes with the Service Provider Services or other products or services offered by Service Provider, including any marketing or customer loyalty program, except with Service Provider’s prior written consent.

2.7 Service Provider Marks. Merchant acknowledges that Service Provider is the owner of the trademarks, service marks, logos, trade names, domain names, and other branding and identifying features, including logos, designs, or both (collectively, the “Service Provider Marks”) used in connection with the Service Provider Services. With respect to Service Provider Services, any Merchant frontend interface accessed by Members shall be branded under the Service Provider Marks and subject to Service Provider’s written approval. Subject to the terms and conditions of this Agreement, Service Provider hereby grants to Merchant a non-exclusive, non-sublicenseable, non-transferable right and license to use the Service Provider Marks during the term of this Agreement in accordance with any trademark usage guidelines that Service Provider may provide and solely in association with the Service Provider Services in connection with the marketing of such Service Provider Services. The use by Merchant of the Service Provider Marks in connection with this Agreement shall not create any right, title or interest, in or to the Service Provider Marks in favor of Merchant and all goodwill associated with the use of the Service Provider Marks shall inure to the benefit of Service Provider. Merchant agrees that it cannot use Service Provider Marks elements in association with products or services not provided by Service Provider. At the expiration or termination of this Agreement, Merchant shall immediately discontinue any use of the Service Provider Marks or any other combination of words, designs, trademarks or tradenames that would indicate that it is in any way authorized by or associated with Service Provider.

3. PAYMENT.

3.1 Charges. Merchant shall pay the charges and expenses listed in each MSS in accordance with the terms of this Agreement. All payments by Merchant to Service Provider pursuant to this Agreement are due and payable on receipt of invoice, unless otherwise set forth in an MSS. The SaaS Services will be billed in advance as determined in an MSS. All unpaid past-due invoices are subject to a late fee on the outstanding balance for each month that it remains unpaid equal to the lesser of 1.5% per month and the highest rate allowable by applicable law. If any amount owing by Merchant under this Agreement or any other agreement for Service Provider’s services is not paid when due, Service Provider may, without limiting Service Provider’s other rights and remedies, accelerate Merchant’s unpaid fee obligations under this Agreement and the other agreements so that all such obligations become immediately due and payable, and suspend the provision of Service Provider Services to Merchant until such amounts are paid in full. Fees paid are non-refundable.

3.2 Fee Increases. Service Provider may change the fees, charges and expenses listed in each MSS at any time, in Service Provider’s sole discretion. If Service Provider increases the fees, charges or expenses of any of the Service Provider Services purchased by Merchant under an existing MSS, Service Provider will notify Merchant of the increase at least one billing cycle in advance (either through a notice with a bill, an email or otherwise), and Merchant may terminate the applicable MSS as of immediately prior to the effective date of the fee increase without paying any fees, charges or expenses for Service Provider Services that would have been delivered under such MSS after the effective date of the fee increase, on the condition that Merchant’s written notice of termination is delivered to Service Provider within thirty (30) days after Service Provider’s notice of the fee increase and prior to the effective date of the fee increase.

3.3 Taxes. Merchant will pay sales, use or other similar federal, state or local taxes with respect to the Service Provider Services, excluding taxes based on Service Provider’s net income.

4. ACCEPTANCE.

4.1 Acceptance. With respect to any Professional Services and/or Deliverables that are expressly identified in a single separate and distinct section within an MSS that is labeled as the "Acceptance Testing" section, Merchant shall have five (5) calendar days from the date the Deliverables and Professional Services are delivered to review and test them to confirm that they conform to their specifications and any other acceptance testing criteria expressly listed in the MSS. If during such period Merchant discovers any non-conformities, Merchant shall immediately notify Service Provider and Service Provider shall, at no cost or expense to Merchant and as the sole and exclusive remedy and Service Provider’s entire liability, use commercially reasonable efforts to correct the identified non-conformities. Following completion by Service Provider of any such correction, this acceptance process of this Section will repeat. Acceptance shall occur if either Merchant fails to provide notice of any defect under this Section by the end of an acceptance testing period, if Merchant uses the Professional Services or Deliverables on a production basis, or if Merchant provides written notice of acceptance (in each case, "Acceptance"). Merchant shall not unreasonably withhold Acceptance. If Acceptance does not occur after two attempts by the Service Provider to correct an identified non-conformity, then either party may terminate the applicable MSS without penalty or fee upon written notice to the other party, and the Service Provider shall refund to Merchant any fees paid for the non-conforming Deliverable.

5. TERMS OF USE, PRIVACY AND DATA SECURITY.

5.1 General. Service Provider will, and Merchant consents that Service Provider may, collect, use and disclose the Transaction Information, including Merchant Transaction Data, in order to provide the Service Provider Services to Merchant, and as set forth in the Spendgo Privacy Policy, located at http://www.spendgo.com/privacy. Members that use or access any Service Provider Services must agree to Service Provider’s terms of use, privacy policy and other standard terms and conditions.

5.2 Transaction Data.

(a) Registered Member. Notwithstanding Section 5.2(b), Merchant agrees that a Registered Member, shall own a copy of the Transaction Information that identifies that Member, including any Merchant Transaction Data, and shall have the right to (i) retain such Transaction Information even after the termination of this Agreement; and (ii) grant additional rights and licenses to Service Provider, Merchant and other third parties to access, use and disclose such information. For the avoidance of doubt, Merchant shall have no right to require that Service Provider delete, return or otherwise alter any Transaction Information or Spendgo Data related to a Registered Member, nor shall Merchant be able to prevent the Service Provider’s or another third party’s use or disclosure of such data as authorized by a Registered Member.

(b) Merchant Transaction Data. Subject to Sections 5.2(a) and 5.2(c), Merchant shall own a copy of its Merchant Transaction Data.

(c) Spendgo Data. Notwithstanding anything above, Service Provider shall own all right, title and interest in and to the Spendgo Data. To the extent Spendgo shares Registered Member account information with Merchant as part of the Identity Management Services and subject to Merchant’s compliance with the terms and conditions of this Agreement, Spendgo grants Merchant a limited, revocable, non-transferable license, during the term of this Agreement to access and use such profile information via and as permitted by the Spendgo Merchant Portal solely for Merchant’s internal use in connection with the use of the SaaS Services and Messaging Services.

(d) Return of Data. Upon request, at the termination of this Agreement, Service Provider shall return to Merchant the Merchant Transaction Data, except that Service Provider shall not be required to delete any Spendgo Data or any Transaction Information or data associated with a Registered Member.

5.3 License to Data. Merchant represents, warrants and covenants that all required consents have been obtained to permit the collection, use and disclosure of Merchant Transaction Data by Service Provider in order to provide the Service Provider Services, and as set forth in the Spendgo Privacy Policy. Merchant hereby grants, and represents and warrants that it has the right to grant, to Service Provider a royalty-free, unlimited, perpetual, worldwide, irrevocable, transferrable, sublicensable license to collect, use, and disclose the Merchant Transaction Data for the provision of Service Provider Services hereunder, and as set forth in the Spendgo Privacy Policy. Service Provider agrees that it will not disclose any Merchant Transaction Data that identifies Merchant to any third parties, except: (i) as provided in Sections 5.2(a) and 5.2(c), (ii) as permitted by Merchant, (iii) in order to provide the Service Provider Services, (iv) to Service Provider’s agents or service providers, or (v) where required by law.

5.4 Security. Merchant will not configure or cause the Service Provider Services to transmit or send a full credit card number or CVV to Service Provider. Service Provider makes no representations that the Service Provider Services are compliant with the Payment Card Industry Data Security Standards. Service Provider shall implement and maintain commercially reasonable security measures to protect the Transaction Information it collects via the Service Provider Services.

5.5 Merchant Privacy Policy. Merchant will publish a privacy policy and other standard terms and conditions disclosing to Members the collection, use and disclosure of Transaction Information and other personal information via the Service Provider Services. Merchant’s use of the Service Provider Services and the collection, use and disclosure of information collected via the Service Provider Services must comply with all applicable laws.

5.6 Text and Email. If Merchant utilizes the Service Provider Services to facilitate the sending of any messages to Members via SMS, email or other electronic means, Merchant represents warrants and covenants that: (a) it shall get prior, express, opt-in consent from each Member prior to sending any such messages, (b) it shall provide all disclosures and other content in those messages as required by applicable laws, (c) it shall comply with all unsubscribe requests as required by applicable laws, (d) it shall maintain detailed records regarding its compliance with the above obligations, and shall provide copies of those records to Service Provider upon request, and (e) that Merchant shall fully comply with all applicable laws, rules and regulations related to the sending of such messages, including but not limited to the CAN-SPAM Act and its implementing regulations and the Telephone Member Protection Act and its implementing regulations. If Merchant utilizes a third party to facilitate the sending of any messages to Members via SMS, email or other electronic means, or if Merchant sends such messages itself, Merchant agrees to keep Service Provider informed in real-time of the opt-in and opt-out status of each Member. If the Merchant receives any notice from a regulator regarding a potential breach of any anti-spam legislation in connection with the Service Provider Services, the Merchant shall: (i) promptly notify Service Provider in writing of the particulars of the non-compliance and the steps the Merchant proposes to take to address that non-compliance, (ii) fully and promptly cooperate and comply with any requests or instructions issued by the regulator; and (ii) provide reasonable assistance to Service Provider in responding to and addressing the regulator’s concerns.

5.7 Telephone Consumer Protection Act (“TCPA”) Compliance. Without limiting any of the foregoing, the TCPA requires that: (a) “prior express written consent” (as defined under the TCPA) be obtained before SMS text messages can be sent to any mobile/wireless device; and (b) evidence of such prior express written consent must be retained for the statutorily required period. Merchant represents and warrants that it will: (i) obtain the prior express written consent of all Members that receive SMS text messages from Merchant and/or Merchant’s third party service providers, as applicable, through use of the Services (“Merchant List”); (ii) record, collect, store and maintain the prior written consents required under this Section 5.7, whether as a sound recording (where received verbally) or in written form, as applicable (collectively, “Consent Records”), for a period of five (5) years after the date that Merchant collected each applicable Consent Record; and (iii) otherwise comply with all of the other requirements set forth within the TCPA. Merchant shall provide such Consent Records to Service Provider within two (2) business days of a request for same. The Consent Records shall include, at a minimum, the consent language appearing on the mobile/online media from which the prior express written consent of the subject Members comprising the Merchant List was collected and the date and time stamp indicating the time that the subject Members’ prior express written consent was collected.

5.8 Member Data Imports. Merchant acknowledges and agrees that (i) all uploads into the Spendgo Platform contain only Member Data derived from a list of Members from whom Merchant has obtained prior express written consent including TCPA compliant consent to send SMS or MMS text messages, (ii) Merchant has the right to use the data being uploaded. Merchant further acknowledges and agrees to be responsible for ensuring that all data is in an acceptable format. Service Provider will use commercially reasonable efforts to maintain the integrity of the data, but makes no guarantee as to the accuracy of the data after it has been imported/uploaded. You agree to indemnify Service Provider against any actual or threatened claims or causes of action related in any way to the use of such data. Uploads containing Member Data will be further governed by the Spendgo Terms of Service posted at https://www.spendgo.com/terms.

6. WARRANTIES; COMPLIANCE WITH LAW.

6.1 Mutual Warranties. Each party represents and warrants to the other that: (i) it is organized and validly existing under the laws of the jurisdiction of its formation and has full authority to enter into this Agreement, to carry out its obligations hereunder and to grant the rights and licenses granted in this Agreement; (ii) this Agreement is a legal and valid obligation binding upon it and enforceable according to its terms, except to the extent such enforceability may be limited by bankruptcy, reorganization, insolvency or similar laws of general applicability governing the enforcement of the rights of creditors or by the general principles of equity (regardless of whether considered in a proceeding at law or in equity); and (iii) its execution, delivery and performance of this Agreement does not conflict with any agreement, instrument or contract, oral or written, to which it is bound.

6.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SERVICE PROVIDER MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SERVICE PROVIDER SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICE PROVIDER SERVICES WILL MEET MERCHANT'S NEEDS OR REQUIREMENTS OR THAT THE PROVISION OF THE SAAS SERVICES WILL BE UNINTERRUPTED OR THAT THE SAAS SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR ERROR-FREE OR THAT THE INFORMATION PROVIDED BY THE SERVICE PROVIDER SERVICES WILL BE ACCURATE OR COMPLETE. FURTHER, SERVICE PROVIDER DOES NOT WARRANT THAT ALL ERRORS OR INACCURACIES IN THE SERVICE PROVIDER SERVICES ARE CORRECTABLE OR WILL BE CORRECTED.

7. INTELLECTUAL PROPERTY AND CONFIDENTIALITY.

7.1 Spendgo Intellectual Property.

(a) Ownership. As between the parties and except for the limited express license granted to Merchant under this Agreement, Service Provider reserves and owns all right, title and interest, including all related intellectual property rights, in and to the Local Software, Online Platform, Deliverables, Documentation, Service Provider Marks and all results of Service Provider Services. Merchant acknowledges that there are no licenses granted by implication under this Agreement. Service Provider reserves all rights that are not expressly granted.

(b) Feedback. If Merchant sends or transmits any communications, comments, questions, suggestions, or related materials to Service Provider, whether by letter, e-mail, telephone, or otherwise, suggesting or recommending changes to the Local Software, Online Platform, Deliverables, Documentation, Service Provider Marks or the Service Provider Services (“Feedback”), including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be exclusively owned by Service Provider. Merchant hereby assigns to Service Provider all right, title and interest, including all related ideas, know-how, concepts, techniques, and intellectual property rights, in and to the Feedback.

7.2 Confidential Information. “Confidential Information” means any software, data, business, financial, operational, customer, vendor or other information disclosed by Service Provider to Merchant and not generally known by or disclosed to the public.

7.3 Confidentiality Obligations. Merchant shall maintain all of Service Provider’s Confidential Information in confidence and will protect such information with the same degree of care that Merchant exercises with its own confidential information, but in no event less than a reasonable degree of care. If Merchant suffers any unauthorized disclosure, loss of, or inability to account for the Confidential Information of Service Provider, then Merchant shall promptly notify and cooperate with Service Provider and take such actions as may be necessary or reasonably requested by Service Provider to minimize the damage that may result therefrom. Merchant shall not use or disclose (or allow the use or disclosure of) any Confidential Information of Service Provider without the express prior written consent of Service Provider. Access to and use of any Confidential Information shall be restricted to those employees and persons within Merchant’s organization who have a need to use the information to exercise rights under or perform this Agreement or to make use of the Service Provider Services, and are subject to a contractual, professional or other obligation to keep such information confidential in a manner consistent with this Agreement.

7.4 Return of Confidential Information. All of Service Provider’s Confidential Information disclosed to the Merchant, and all copies thereof, are and shall remain the property of Service Provider. All such Confidential Information and any and all copies and reproductions thereof shall, upon request of the Service Provider or the expiration or termination of this Agreement, be promptly returned to the Service Provider or destroyed (and removed from Merchant’s computer systems and electronic media) at the Service Provider’s direction. In the event of any destruction hereunder, Merchant shall, if requested, provide to the Service Provider written certification of compliance therewith within 30 days after destruction.

8. TERM AND TERMINATION.

8.1 Term. This Agreement commences on the date any MSS is signed by Merchant and the date all MSSs have expired or have been terminated.

8.2 Termination. Either party may, at its option, terminate this Agreement and all MSS’s immediately upon written notice to the other party in the event that the other party (i) becomes insolvent or unable to pay its debts when due; (ii) files a petition in bankruptcy, reorganization or similar proceeding, or, if such a petition is filed against the other party, such petition is not removed within ninety (90) days after such filing; (iii) discontinues it business; or in the event that (iv) a receiver is appointed or there is an assignment for the benefit of the other party’s creditors. Furthermore, in the event a party materially breaches this Agreement or an MSS, the non-breaching party may terminate this Agreement or the applicable MSS without penalty or fee upon 30 days’ advance written notice to the other party, if the breach is not cured within such the 30 day period, except the cure period is five days for non-payment. Additionally, a party may terminate an MSS as contemplated in Section 3.2 and Section 4. Furthermore, an MSS may be terminated by Merchant for convenience upon payment of all outstanding fees for the remaining then-current term of the MSS (including any fees for the remainder of any Service Commitments). Merchant acknowledges and agrees that (i) such payment is a genuine pre-estimate of the loss that Service Provider would incur upon Merchant’s premature termination of an MSS because Service Provider will allocate substantial staff and other resources to serve Merchant, and Service Provider would incur substantial costs in reallocating such staff and other resources upon premature termination by Merchant; and (ii) such payment is not a penalty.

8.3 Effect of Termination. The termination or expiration of this Agreement or an MSS shall not affect Merchant’s or Service Provider’s rights or obligations that expressly or by their nature continue and survive (including without limitation, the payment terms and the provisions concerning ownership, confidentiality, limitation on liability, indemnity and the warranty disclaimers), and Merchant shall promptly pay all amounts owed to Service Provider for Service Provider Services and Deliverables under the terminated Agreement or MSS.

8.4 Termination and Non-Renewal Rights are Absolute. The rights of termination set forth in this Agreement are absolute, and that the parties have considered the possibility of such termination and the possibility of loss and damage resulting therefrom, in making expenditures pursuant to the performance of this Agreement. Neither party shall be liable to the other for damages or otherwise by reason of the termination or expiration of this Agreement or an MSS as provided for herein.

8.5 Remedies. Notwithstanding anything in this Agreement to the contrary, where a breach of certain provisions of this Agreement may cause either party irreparable injury or may be inadequately compensable in monetary damages, either party may seek equitable relief in addition to any other remedies which may be available. Except as expressly stated herein, the rights and remedies of the parties in this Agreement are not exclusive and are in addition to any other rights and remedies available at law or in equity.

8.6 Limitation on Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SERVICE PROVIDER ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING ALL MSSS), WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY MERCHANT HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.

8.7 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL SERVICE PROVIDER HAVE ANY LIABILITY TO MERCHANT FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.

9. INDEMNITY.

9.1 Merchant Obligations. Merchant shall defend Service Provider against any cause of action, suit or proceeding (each a “Claim”) made or brought against Service Provider by a third party (i) arising out of or attributable to Merchant’s use of the Service Provider Services, including any breach by Merchant of Section 5 (other than Claims expressly set forth in Section 9.2 below) or (ii) alleging that Merchant Content or the Merchant Marks infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Service Provider for any damages finally awarded against, and for reasonable attorneys’ fees incurred by, Service Provider in connection with such Claim, on condition that Service Provider (a) promptly gives Merchant written notice of the Claim; (b) gives Merchant sole control of the defense and settlement of the Claim (provided that Merchant may not settle any Claim unless the settlement unconditionally release Service Provider of all liability); and (c) provides reasonable assistance in connection with the defense (at Merchant’s reasonable expense).

9.2 Service Provider Obligations. Service Provider shall defend Merchant against any Claim made or brought against Merchant by a third party alleging that Merchant’s use of the Local Software, the Online Platform (excluding Merchant Content and Merchant Marks) infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Merchant for any damages finally awarded against, and for reasonable attorneys’ fees incurred by, Merchant in connection with such Claim, on condition that Merchant (a) promptly gives Service Provider written notice of the Claim; (b) gives Service Provider sole control of the defense and settlement of the Claim (provided that Service Provider may not settle any Claim unless the settlement unconditionally release Merchant of all liability); and (c) provides reasonable assistance in connection with the defense (at Service Provider’s reasonable expense). If such a Claim is brought or threatened, or if Service Provider believes such a Claim is likely to occur, Service Provider may, at its option, (i) procure for Merchant the right to use the Local Software, the Online Platform (excluding Merchant Content and Merchant Marks), as applicable, (ii) replace the Local Software, the Online Platform (excluding Merchant Content and Merchant Marks), as applicable, with other suitable products, or (iii) refund any prepaid fees that have not been earned and terminate this Agreement upon notice. Service Provider will have no liability under this Agreement or otherwise to the extent a Claim is based upon (a) use of the Service Provider Services in combination with software, hardware or technology not provided by Service Provider, if infringement would have been avoided in the absence of the combination, (b) modifications to the Service Provider Services not made by Service Provider, (c) Deliverables developed pursuant to specifications provided by Merchant, if infringement would have been avoided by the absence of the Deliverables, (d) use of any version other than a current release of the Local Software or the Online Platform, if infringement would have been avoided by use of a current release, (e) any action or omission of Merchant for which Merchant is obligated to indemnify Service Provider under this Agreement, or (f) any breach of this Agreement by Merchant. This Section 9.2 states the Service Provider’s sole liability for, and the Merchant’s exclusive remedy against the Service Provider for, violations of intellectual property rights.

10. MISCELLANEOUS.

10.1 Marketing. Service Provider may include and use Merchant’s name on a list of customers and may refer to Merchant as a user of Service Provider Services in its advertising, marketing, promotional and investor materials.

10.2 Notices. Unless otherwise provided herein, any notice, request, or other communication to be given in writing under this Agreement will be deemed to have been given by either party to the other party upon the date of receipt, if hand delivered, or two business days after deposit in the U.S. mail if mailed to the other party by registered or certified mail, properly addressed, postage prepaid, return receipt requested, or one business day after deposit with a national overnight courier for next business day delivery, or upon the date of electronic confirmation of receipt of a facsimile transmission if followed by the original copy mailed to the applicable party at its address above or other address provided in accordance herewith. A party may change its address for notices by providing written notice to the other party.

10.3 Assignment; Delegation. Service Provider may, upon written notice to Merchant, assign any of its rights or delegate any of its duties hereunder without the prior written consent of Merchant. Merchant will not assign any of its rights or delegate any of its duties hereunder without the prior written consent of Service Provider and absent such consent, any purported or attempted assignment by Merchant shall be null, void and of no effect.

10.4 Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by the party against whom enforcement of such amendment or modification is sought.

10.5 Independent Contractors. In making and performing this Agreement, Merchant and Service Provider act and shall act at all times as independent contractors, and nothing contained in this Agreement shall be construed or implied to create an agency, partnership or employer and employee relationship between them. At no time shall either party make commitments or incur any charges or expenses for, or in the name of, the other party.

10.6 Headings and Captions; Construction. Section headings are used for convenience only and shall in no way affect the construction or interpretation of this Agreement. This Agreement has been negotiated by the respective parties hereto and their attorneys and the language hereof shall not be construed for or against any party.

10.7 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one Agreement.

10.8 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement shall not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.

10.9 Waiver. No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. Any delay or forbearance by either party in exercising any right hereunder shall not be deemed a waiver of that right.

10.10 Force Majeure. Except with respect to payment obligations hereunder, if a party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such party is prevented or delayed from performing for more than ninety (90) days, the other party may terminate this Agreement upon thirty (30) days’ written notice.

10.11 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS IN DELAWARE.

10.12 U.S. Government End-Users. Each of the Documentation and the software components that constitute the Service Provider Services is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the software components that constitute the Service Provider Services and the Documentation with only those rights set forth therein.

10.13 Entire Agreement. This Agreement, the MSSs and all Service Descriptions and addenda hereto and thereto are incorporated herein and constitute the entire agreement of the parties with respect to the subject matter hereof and thereof. This Agreement supersedes all prior negotiations, representations, promises, and agreements concerning the subject matter herein whether written or oral.