Uptown Network Merchant Terms and Conditions
The Company has developed certain proprietary mobile application and web services (as the same may be supplemented, modified, updated or enhanced from time to time, the “Software”) as set forth on the invoice or other forms from Company for the initial order of Software, and any subsequent invoices or other forms from Company (submitted in written form or online), specifying, among other things, the subscription term, the Software, the implementation services, and such other charges and terms as agreed between the parties (the “Merchant Subscription Agreement”).
These Merchant Terms and Conditions (collectively with the Merchant Subscription Agreement, this “Agreement”) includes and incorporates the Merchant Subscription Agreement pursuant to which Merchant purchased the Software and any subsequent Merchant Subscription Agreements. This Agreement constitutes a contract between the Company and the Merchant (as defined by the applicable Merchant Subscription Agreement). By accessing or using the Software, Merchant agrees to be bound by this Agreement. If you are entering into this Agreement on behalf of a company, organization, or other entity, you represent that you have such authority to bind such entity and are agreeing to this Agreement on behalf of such entity. If you do not have such authority to enter this Agreement or do not agree with these terms and conditions, you may not use the Software.
1. ACTIVATION AND USE
Upon the Activation Date, the Company shall provide remote electronic access to the Software. Merchant shall access the Software by means of a merchant account accessed via a unique merchant log-in and password for the Merchant (the “Merchant Account”). The Merchant Account shall be made available to the Merchant via electronic remote access only and, other than such client-side object code as may be necessary for such electronic remote access, shall not be available in executable object code form or in source code form. Subject and conditioned on Merchant’s payment of all fees and payments due hereunder and Merchant’s compliance and performance in accordance with all other terms and conditions of this Agreement, the Company hereby authorizes the Merchant to, on a limited, nonexclusive, non-assignable, non-sublicensable and non-transferable basis (only in accordance with all of the terms and conditions set forth in this Agreement) use the Software during the Term through Merchant’s Merchant Account access.
2. SERVICE ACKNOWLEDGEMENTS AND AGREEMENTS
2.1. Merchant Systems.
The Merchant shall be responsible at its own expense for providing access to the internet in order to access the Software. The Merchant shall be responsible for ensuring that all Merchant Systems are free from viruses, worms, trojan horses and other malicious code. The Merchant has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Merchant Systems, and sole responsibility for all access to and use of the Software by any person by or through the Merchant Systems or any other means controlled by Merchant, including any: (i) information, instructions or materials provided by any of them to the Software; (ii) results obtained from any use of the Software; and (iii) conclusions, decisions or actions based on such use.
The Company reserves the right in its sole discretion, but shall not be obligated, to revise, update, upgrade, edit or delete any appearance or functions of, or any documents, information or other content appearing on or part of, the Software (other than as required to remain compliant with applicable laws, guidance and regulations (“Applicable Law”)) or Merchant Account; provided, however, that the Company shall not delete any material function of the Software or Merchant Account without concurrently providing new function(s) which provide the same or better capabilities than such deleted function, and the Company shall provide Merchant with prior written notice of such deletions/changes to material functions.
Merchant shall keep all passwords and usernames to its Merchant Account, as well as its operating systems (and passwords and usernames thereto), confidential and secure, and Merchant shall be solely responsible for any damage caused by unauthorized access to the Merchant Account or its operating systems. Merchant shall not share its passwords or usernames with any other persons, or otherwise provide access to the Merchant Account to any other person. The Company is not liable for any Merchant Data or other information or data of the Merchant obtained by unauthorized persons due to security breaches (unless such security breaches resulted from Company’s gross negligence or willful misconduct), Merchant’s negligence, or breach of this Agreement by Merchant, nor is the Company liable for any damage or loss of Merchant Data due to security breaches, virus attacks, Merchant’s negligence, or breach of this Agreement by Merchant. Merchant shall not undermine, damage or cause harm to the Software, the Merchant Account, any other servers of the Company, or any other customer, Merchant or affiliate of the Company.
2.4. Merchant Personnel and Contacts.
(a) The Company shall provide to the Merchant telephone number(s) and email addresses to enable communication with a service representative of the Company who shall assist the Merchant in identifying, verifying and resolving technical problems with the Merchant Account. The Company shall provide technical support regarding the Merchant Account to the Merchant, and any other issues of the Merchant regarding the Software, only to the Merchant, and only the Merchant shall contact the Company for any such support or assistance. The Company shall have no obligation to provide, and shall not be liable for any failure to provide, (i) any technical services with the Merchant Account through any individual other than the Merchant, (ii) any resolution or dialogue with any individual other than the Merchant regarding any aspect of the Software other than technical services regarding the Merchant Account, or (iii) any support or assistance during any observed holidays of the Company, or outside of Monday through Friday, 9:00 AM through 5 PM (eastern time). The Company shall have the right to change, replace, remove or add any business hours for support or assistance by at least ten (10) days prior written notice to Merchant (and upon such written notice this Section 2.4(a) shall be deemed to have automatically been amended as provided in such written notice).
(b) The Company shall not be responsible for any delays or access issues that are related to any breach of this Agreement by, or any act, omission to act or neglect of, Merchant, or any of its personnel, agents, representatives or contractors.
(a) Neither the Company nor any employees, contractors or personnel of the Company (including those individuals giving any initial or on-going training) is being engaged to make recommendations or furnish any advice based on any Merchant Data, and therefore neither the Company nor any employees, contractors or personnel of the Company (including those individuals giving any initial or on-going training) have any liability or obligation to Merchant or any third-party based upon any reliance upon, application or use of any information or data or any reports furnished or actions taken as a result of Merchant’s use or access to the Software.
(b) The Company may develop and market new or different products or services, which use part or all of the Software, and which perform all or a part of the functions performed by the Software. Nothing contained in this Agreement shall give the Merchant any rights with respect to any such new or different products or services.
2.6. Additional Covenants.
(a) comply with all of the terms and conditions of this Agreement, and the terms and conditions of the Software as in effect from time to time (and the Company shall have the right to change such terms and conditions at its sole discretion), which are set forth in www.uptownnetwork.com, which terms and conditions are hereby incorporated herein by reference thereto;
(b) not permit any unauthorized person to use or gain access to the Software (including the Merchant Account);
(c) not permit any person to reproduce, rebroadcast, copy, distribute, resell or incorporate into any information retrieval system (electronic or mechanical), any information, content, form or document delivered via the Software;
(d) only use the Software (including the Merchant Account) for its benefit and internal use and not in the operation of a service bureau or for the benefit of any other person or entity;
(e) not use the Software (including the Merchant Account), in whole or in part, for any illegal, obscene, offensive or immoral purpose;
(f) not use the Software (including the Merchant Account), in whole or in part, in any manner, or in connection with any content, data, hardware, software or other materials provided by or on behalf of the Merchant (collectively, the “Merchant Materials”) that (A) infringes upon or violates any patent, copyright, trade secret, trademark, or other intellectual property right of any third party, (B) constitutes defamation, libel, invasion of privacy, or violation of any right of publicity or other third-party right or is threatening, harassing or malicious, or (C) violates any applicable international, federal, state or local law, rule, legislation, regulation or ordinance;
(g) ensure that all Merchant Materials are free from viruses, worms, trojan horses and other malicious code;
(h) accept the Gift Vouchers as a valid form of payment at all Merchant locations;
(i) in the event that a valid Gift Voucher is presented by a customer for specific item(s), the Merchant shall accept the Gift Voucher as full payment for the item(s) notwithstanding the current price of the item(s), provided that, in the event that the specific item(s) listed on the Gift Voucher is out of stock or discontinued or otherwise unavailable for any other reason which the Merchant determines, in its reasonable discretion, then: (i) Merchant shall use reasonable efforts to provide an alternative item(s) of comparable quality and value in lieu of the specific item(s) listed on the Gift Voucher, or (ii) Merchant shall apply the value of the specific item(s) listed on the Gift Voucher to another menu item or items selected by the customer;
(j) in the event that a valid Gift Voucher is presented by a customer listing a specific dollar value, the Merchant shall accept redemption of the Gift Voucher up to the dollar value stated on the Gift Voucher, provided that, if the customer uses the Gift Voucher to make a purchase that exceeds the stated value, then customer must combine the use of the Gift Voucher with another payment source for the remaining balance of the transaction; and
(k) use reasonable efforts to support the use of the Software in Merchant locations, including but not limited to:
(i) creating and maintaining staff awareness in Merchant locations that Merchant is using and promoting the use of the Software;
(ii) training staff in the Merchant locations on the use of the Software and Gift Voucher redemption process;
(iii) displaying Companyprovided promotional material;
(iv) enabling and displaying the Company gifting widget in a prominent location on the home page of Merchant’s website and no less prominently than other third-party online services;
(v) updating and maintaining menu prices in the Merchant Tools;
(vi) setting menu prices in one dollar ($1.00) increments, provided that, if Merchant fails to do so, then Company will automatically round menu prices to the nearest whole dollar.
The Company shall provide such implementation, training, and technical support services as set forth on Merchant Subscription Agreement.
2.8. No Special Privileges.
Merchant hereby acknowledges that Gift Vouchers are a valid form of payment and nothing more than a valid form of payment. Patrons possessing Gift Vouchers remain subject to any and all restrictions to which other patrons in the Merchant location are subject, including but not limited to applicable dram shop laws and other local, state or federal laws and regulations governing retail food and beverage services in general and alcohol service specifically (the “Food and Beverage Laws”). Merchant hereby acknowledges and agrees that Merchant shall be solely responsible for complying with the Food and Beverage Laws.
2.9. Point-of-Sale Integration.
The terms of this Section 2.9 shall be applicable only to Merchants which utilize Company’s point-of-sale integration or other third-party integrations.
(a) Point-of-sale integration shall be provided through third-party software and services provided by the applicable third party vendor therefor (for example, and without limitation, Omnivore Technologies, Inc.).
(b) Merchant shall provide Company and its agents access to Merchant’s business systems during Company’s regular business hours in order to install and configure the point-of-sale integration with the Software. Merchant hereby authorizes Company and its agents to access the Merchant’s business systems for the purpose of performing said installation and configuration.
(c) Company or third parties may utilize third-party products or services, including, for example, and without limitation, Omnivore Technologies, Inc. applications and implementation with other services. Any acquisition by Merchant of such products or services, and any exchange of data between Merchant and any third party provider, product or service is solely between Merchant and the applicable third party provider. Company does not warrant or support third party products or services, whether or not they are designated by Company as “certified” or otherwise, unless expressly provided otherwise in a Merchant Subscription Agreement. Company is not responsible for any disclosure, modification or deletion of Merchant Data resulting from access by such third party application or its provider.
(d) The Software may contain features designed to interoperate with third party services. Company cannot guarantee the continued availability of such Software features, and may cease providing them without entitling Merchant to any refund, credit, or other compensation, if, for example and without limitation, the provider of a third party application ceases to make the third party application available for interoperation with the corresponding Software features in a manner acceptable to Company.
In consideration of the Company’s provision of the Software hereunder, the Merchant shall pay the fees as set forth in, and in accordance with, the Merchant Subscription Agreement (the “Fees”) subject to the terms and conditions of this Agreement.
3.2. Payment Terms.
The Company shall invoice the Merchant for all Fees on a scheduled basis as set forth in Merchant Subscription Agreement. All amounts shown due on any such invoice for such period shall be paid by Merchant immediately. If the Company does not receive payment in full when due, unpaid delinquent balances shall bear interest from the invoice date at one percent (1.0%) per month, or at the maximum lawful interest rate (whichever rate is less). If a delinquency occurs, the Company may, at its option (and without relieving Merchant from its payment obligations), revoke, suspend or disclaim Merchant’s right to utilize any of the Software (including the Merchant Account), upon five (5) days prior written notice to Merchant and Merchant’s failure to cure within such 5-day period, and all other rights of Merchant hereunder, until payment in full is made. Merchant shall be liable to the Company for all costs and expenses of collection, including reasonable attorneys’ fees, and court costs with respect to any delinquent payment. In the event that the Merchant disputes any amount shown due on any invoice, the Merchant shall pay any undisputed portions of such amount and send written notice to the Company detailing any disputed portions of such amount. All amounts payable to the Company under this Agreement shall be paid by Merchant to the Company in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason. Whenever payment shall be stated to be due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day.
3.3. Restaurant Share.
Company shall pay to Merchant the Restaurant Share as set forth on Merchant Subscription Agreement (the “Restaurant Share”) monthly via ACH transfer to the Merchant’s bank account. The Restaurant Share shall be calculated as follows: the gift amount associated with each redeemed Gift Voucher (the “Gift Voucher Face Value ”) minus the Transaction Fee as set forth on Merchant Subscription Agreement (the “Transaction Fee”) minus the Processing Fee as set forth on Merchant Subscription Agreement (the “Processing Fee”). The Restaurant Share for transactions occurring from the 1st to the 15th of a given calendar month shall be made on the 20th day of the same calendar month (or the first Business Day thereafter). Payment for transactions occurring from the 16th to the last day of a given calendar month shall be made on the 5th day of the immediately following calendar month (or the first Business Day thereafter).
4. TERM AND TERMINATION
The initial term of this Agreement shall commence on the Effective Date and shall continue as set forth on Merchant Subscription Agreement, unless sooner terminated pursuant to Section 4.2 (the “Initial Term” and collectively with any Renewal Term(s) (as hereinafter defined), the “Term”). Subject to earlier termination pursuant to Section 4.2, the Term shall be automatically renewed for 12-month periods (each a “Renewal Term”) at the expiration of the Initial Term and any Renewal Term (as applicable) unless either party gives written notice to the other of its desire not to so renew at least sixty (60) days prior to the expiration date of the Initial Term or such Renewal Term (as applicable).
(a) The Company shall have the right to terminate this Agreement in its entirety, and/or suspend your right to the use the Software and access the Merchant Account, with immediate effect upon written notice to Merchant (in addition to all other rights and remedies of the Company under this Agreement, by law or in equity) if Merchant should materially breach any of its obligations under this Agreement and fails to cure such breach (if capable of being cured or unless otherwise expressly provided) within fifteen (15) days following written notice of such breach has been delivered by the Company to Merchant. Notwithstanding the foregoing, there shall not be an available cure or notice period for any material breach by Merchant, including, without limitation, Merchant’s breach of (i) proprietary and/or confidentiality obligations or (ii) any of its obligations hereunder with respect to any payment due and owing from Merchant to the Company hereunder after written notice to the Merchant and Merchant’s failure to cure within five (5) days after delivery of such notice, and the Company shall have the right to immediately terminate this Agreement upon written notice to Merchant in the event of any such material breach.
(b) The Merchant shall have the right to terminate this Agreement in its entirety with immediate effect upon written notice to the Company (in addition to all other rights and remedies of the Merchant under this Agreement, by law or in equity) if Company should materially breach any of its obligations under this Agreement and fails to cure such breach (if capable of being cured or unless otherwise expressly provided) within fifteen (15) days following written notice of such breach has been delivered by the Merchant to Company. Notwithstanding the foregoing, there shall not be an available cure or notice period for any material breach by Company of (i) proprietary and/or confidentiality obligations or (ii) any of its obligations hereunder with respect to any payment due and owing from Company to the Merchant hereunder after written notice to the Company and Company’s failure to cure within five (5) days after delivery of such notice, and the Merchant shall have the right to immediately terminate this Agreement upon written notice to Company in the event of any such material breach.
(c) In the event that either party shall make a general assignment for the benefit of creditors, suffer or permit the appointment of a receiver for its business or assets, or shall avail itself of, or shall become subject to, any proceedings under any bankruptcy (or similar laws relating to insolvency or the protection of rights of creditors) of any jurisdiction, then the other party shall be entitled to terminate this Agreement with immediate effect upon written notice to such affected party.
(d) If the Company terminates this Agreement as a result of Merchant breaching its obligations under this Agreement, the Company shall be entitled to retain any and all Fees previously paid to the Company by Merchant. The exercise of such right of termination shall not limit any other rights or remedies of the terminating party at law, in equity or hereunder
4.3. Actions Upon Termination/Expiration.
Upon any termination/expiration of this Agreement:
(a) Merchant shall at its own expense return to the Company any Proprietary Information of the Company in its possession and shall immediately cease using any of the Software or Merchant Account. In connection therewith, upon the termination/expiration date of this Agreement, or at any time thereafter, the Company shall have the right to de-activate the Merchant Account. In the event that Merchant has received payment for any unredeemed Gift Vouchers, Merchant shall, upon termination/expiration, return such proceeds to Company for the sole purpose of allowing Company to provide a credit or item of comparable value to any customer holding Merchant’s unredeemed Gift Voucher.
(b) Upon the termination/expiration date of this Agreement, or at any time thereafter, the Company shall issue an invoice to Merchant indicating all amounts owing as of such termination/expiration date from Merchant to the Company for any of the services rendered by the Company to Merchant under this Agreement as of such termination/expiration date.
(c) Upon request of Merchant, the Company shall transfer all Merchant Data as so requested, provided that: (i) if this Agreement is terminated by the Company as a result of breach of this Agreement by Merchant, then Merchant shall be responsible to pay any and all costs and expenses incurred or to be incurred by the Company in connection therewith; and (ii) if this Agreement expires or is terminated by the Merchant as a result of breach of this Agreement by Company, then Merchant shall have the option to: (A) receive quote from the Company for the costs and expenses payable to the Company for its transfer of Merchant Data, and choose, at Merchant’s discretion, to purchase such transfer services by writing delivered to the Company within ten (10) Business Days of such quote delivery; or (B) have a third party provider at its discretion transfer all Merchant Data, in collaboration with the Company, within thirty (30) days after the effective termination/expiration date of this Agreement.
(d) All rights and obligations of each party hereunder shall terminate, subject to Section 8.14.
5. PROPRIETARY RIGHTS; CONFIDENTIALITY
5.1. Intellectual Property Rights.
The Company owns and shall remain owning the Merchant Account, the Documentation, if any, the Software and any other software developed by or for the Company (collectively, the “Intellectual Property”), including without limitation all applicable rights to patents, copyrights, trademarks, trade secrets or other proprietary or intellectual property rights inherent therein or appurtenant thereto (collectively, the “Intellectual Property Rights”). Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights, whether expressly, by implication, estoppel or otherwise. Merchant shall:
(a) not rent, lease, sublicense, distribute, transfer, copy or modify any Intellectual Property of the Company or the Software, in whole or in part;
(b) only use the Intellectual Property made available to Merchant by the Company for its own benefit and internal use and not for the benefit of any other 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) not translate, decompile, or create or attempt to create, by reverse engineering or otherwise, the source code, in whole or in part, from the object code to the Software or Merchant Account made available hereunder;
(d) not adapt any of the Intellectual Property of the Company, in whole or in part, in any way or use it to create a derivative work; and
(e) not remove, obscure, or alter, in whole or in part, the Company’s proprietary notices, trademarks, or other proprietary rights notices affixed or contained in or on any Intellectual Property of the Company, including without limitation any proprietary notices of any third party service suppliers to any of the foregoing;
(f) not bypass or breach any security device or protection used by Software or access or use the Software other than by the Merchant Account;
(g) not damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Software or the Company’s provision of services to any third party, in whole or in part;
(h) not remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Software, including any copy thereof; and
(i) not access or use the Software for purposes of competitive analysis of the Software, the development, provision or use of a competing software service or product or any other purpose that is to the Company’s detriment or commercial disadvantage.
5.2. Merchant Input Data.
Merchant hereby irrevocably grants all such rights and permissions in or relating to Merchant Input Data: (a) to the Company and its affiliates and personnel as are necessary or useful to perform the Company’s obligations hereunder; (b) to the Company as are necessary or useful to enforce this Agreement; and (c) to the Company as are necessary or useful to improve or further develop the Software, subject to any confidentiality requirements hereunder.
5.3. Proprietary and Confidential Information.
Each party (the “Receiving Party”) agrees that all Proprietary Information of the other party (the “Disclosing Party”) which has heretofore been disclosed and which will hereafter be disclosed to the Receiving Party, or of which the Receiving Party may otherwise attain knowledge during the Term, in oral, written or other tangible form, shall be deemed to be confidential information and the sole property of the Disclosing Party. This Agreement shall govern all communications between the parties that are made during the Term.
(a) The Receiving Party shall keep all Proprietary Information of the Disclosing Party as well as the financial terms of this Agreement (collectively, the “Confidential Information”) strictly confidential and shall not disclose, distribute or disseminate in any way to any third party any of the Confidential Information. Furthermore, the Receiving Party shall not utilize for the Receiving Party’s own benefit or the benefit of any third party: (i) any Proprietary Information of the Disclosing Party disclosed by the Disclosing Party or by any person associated with the Disclosing Party; (ii) any Proprietary Information of the Disclosing Party of which the Receiving Party attains knowledge in connection with this Agreement; or (iii) any information, processes, inventions, intellectual property or the like generated by the Receiving Party based in whole or in part on the Proprietary Information of the Disclosing Party, including, without limitation, any improvements, analyses, compilations, studies or other documents or records prepared or generated from such Proprietary Information of the Disclosing Party, which foregoing materials shall be deemed part of the Proprietary Information of the Disclosing Party. Notwithstanding the foregoing: (A) in connection with the Proprietary Information of the Company, the Merchant’s limitation on use and disclosure of such Proprietary Information shall be subject to Merchant’s rights to the Software hereunder; (B) in connection with the Proprietary Information of the Merchant, the Company’s limitation on use and disclosure of such Proprietary Information shall be subject to the right of the Company to support, maintain, update and provide the Software and Merchant Account; and (C) the Company shall be permitted to use and disclose such Proprietary Information to the extent necessary to provide the Software hereunder. The Receiving Party shall protect the Proprietary Information of the Disclosing Party as well as the financial terms of this Agreement by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of such Confidential Information as Receiving Party uses to protect its own Proprietary Information of a like nature and as it uses to protect the financial terms of this Agreement. Notwithstanding the foregoing, the Receiving Party shall have the right to disclose any financial terms of this Agreement: (x) to its legal and financial advisors who are under a legal obligation of confidentiality or (y) to its trustees, officers, directors, members, managers, representatives, agents and employees, on a need-to-know basis, provided that each of the foregoing are under a legal obligation of confidentiality.
(b) Notwithstanding anything in this Agreement to the contrary, the Receiving Party may disclose the Proprietary Information of the Disclosing Party as well as the financial terms of this Agreement to the extent that such disclosure is required by an order of a court, administrative agency or governmental authority, or by any law, rule or regulation, or by subpoena, discovery request, summons or other administrative or legal process, or by any formal or informal investigation by any governmental agency or authority; provided, however, that, unless prohibited by law: (i) the Receiving Party shall give prompt written notice of any such request or requirement to the Disclosing Party; (ii) the Receiving Party shall give the Disclosing Party prior written notice of the Confidential Information it believes it is required to disclose; and (iii) the Receiving Party shall use its reasonable efforts to cooperate, to the extent practicable, with the Disclosing Party to avoid or minimize such disclosure or to obtain confidential treatment thereof or other protective order.
(c) The Receiving Party’s obligations under this Section 5.3 shall terminate when, the Receiving Party, upon seeking to avoid the Receiving Party’s obligations hereunder, can prove by clear and convincing documentary evidence that: (i) with respect to disclosure of any financial terms of this Agreement, such financial terms have entered the public domain; or (ii) with respect to any Proprietary Information of the Disclosing Party, such Proprietary Information (A) was in the public domain at the time of disclosure to Receiving Party by Disclosing Party, (B) entered the public domain without violation of this Agreement or any other confidentiality obligation subsequent to the time of disclosure to Receiving Party by Disclosing Party, (C) was communicated to the Receiving Party by a third party, free of any obligation of such third party to maintain the confidentiality of such, or (D) was independently developed by Receiving Party using no amount of the Proprietary Information of the Disclosing Party. Notwithstanding the foregoing, specific information shall not be deemed to be within any of the foregoing exceptions merely because it is in the scope of more general information within any such exceptions, and a combination of features shall not be deemed to be within any such exceptions merely because individual features are within such exceptions.
(d) Upon termination of this Agreement, each party shall return all Proprietary Information of the other party, or destroy same (and confirm such action in writing), except for one copy for purposes of compliance with Applicable Law, which shall remain subject to the confidentiality requirements hereunder (which shall survive termination).
5.4. Irreparable Harm.
Each party acknowledges that any breach of its obligations with respect to this Section 5 may cause the other party irreparable harm or injury for which there are inadequate remedies at law and that such other party may be entitled to equitable relief in addition to all other remedies available to it. Each party agrees that, if a court of competent jurisdiction determines that such party has breached, or attempted or threatened to breach, its obligations pursuant to this Section 5, the other party will be entitled to obtain appropriate injunctive relief and other measures restraining further, attempted or threatened breaches of such obligations. Such relief or measures shall be in addition to, and not in lieu of, any other rights and remedies available to such aggrieved party.
6.1. Merchant Indemnity.
The Merchant shall indemnify, defend, and hold harmless the Company and its affiliates, subsidiaries and parents, and the directors, officers, members, managers, employees, representatives and agents of the foregoing from and against any and all claims, lawsuits and other civil actions or proceedings commenced by any third party (“Third Party Claims”) against the Company or any of its foregoing covered indemnitees, and any and all damages, awards, losses, liabilities, settlements, judgments, costs and expenses (including, without limitation, interest awards, litigation costs, and reasonable attorneys’ fees awards) (“Losses”) incurred by Company or any of its foregoing covered indemnitees and resulting from or arising out of such Third Party Claims, to the extent that such Third Party Claims are based upon (i) any violation of any Regulatory Requirements or Food and Beverage Laws by Merchant and/ or (ii) any state or federal criminal prosecutions associated with the Merchant and/or its business, unless such Third Party Claims resulted from Company’s gross negligence or willful misconduct.
6.2. Company Indemnity.
Company shall indemnify, defend and hold harmless Merchant, and the officers, directors, employees, agents, representatives and contractors thereof, from and against any and all Third Party Claims against Merchant or any of its foregoing covered indemnitees, and any and all Losses incurred by Merchant or any of its foregoing covered indemnitees and resulting from or arising out of such Third Party Claims, to the extent that such Third Party Claims are based upon (i) any violation of any Regulatory Requirements by the Company, (ii) any state or federal criminal prosecutions associated with the Company and/or its business, and/or (iii) allegations that the Software infringes any third party’s Intellectual Property Rights. The foregoing indemnification obligations of the Company under clause (iii) (the “IP Indemnity Obligations”) are subject to the following:
(a) If Merchant’s use of any of the Software actually or in Company’s sole opinion is likely to be the subject of a claim for infringement, then Company, at its option and expense, may either (i) procure for the Merchant the right to continue using the Software, or (ii) replace or modify the Software so that it becomes non-infringing, or (iii) refund to Merchant any pre-paid portion of the Fees for the remaining period of the prevailing Term therefor. If such refund occurs, then Merchant shall cease to use the Software.
(b) Notwithstanding anything else, the foregoing IP Indemnity Obligations do not apply: (i) if Merchant admits any related third party allegation without the express prior written consent of Company; (ii) to any Third Party Claim or Loss to the extent such Third Party Claim or Loss results from or arises out of (A) any act or omission by Merchant or any of its personnel, contractors or agents (other than the use of the Software or other actions, in any case as expressly authorized in this Agreement), (B) the existence or use of any property, equipment, facilities, Confidential Information or Intellectual Property of Merchant, (C) any use of any of the Software in combination with any technology, operating platforms, hardware, software, content, processes, systems, tools, products or other property not provided by Company, where the allegation of infringement or misappropriation relates to the combination, and/or (E) the continued use by Merchant of infringing Software after Company has provided any remedy described in Section 6.2(a) above; (iii) any unauthorized modification, operation or use of the Software by Merchant or any of its personnel, contractors or agents; (iv) the willful misconduct or gross negligence of the Merchant; and/or (v) the breach by the Merchant of this Agreement
6.3. Indemnification Procedures.
A party seeking indemnification hereunder (an “Indemnified Party”) shall give the party from whom indemnification is sought (the “Indemnifying Party”): (a) reasonably prompt notice of the relevant claim; (b) reasonable cooperation in the defense of such claim; and (c) the right to control the defense and settlement of such; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest (except as otherwise set forth in this Agreement). The Indemnified Party shall have the right to participate in the defense at its own expense.
7. LIMITATION OF LIABILITY
7.1. Warranty Disclaimer.
THE COMPANY MAKES NO, AND SPECIFICALLY DISCLAIMS, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABLITY, FITNESSS FOR A PARTICULAR PURPOSE AND TITLE), THAT ANY SERVICE (IN WHOLE AND IN PART), ANY DOCUMENTATION, ANY REPORTS FURNISHED BY THE SOFTWARE TO MERCHANT (IN ORAL OR WRITTEN FORM), THE SOFTWARE (IN WHOLE AND IN PART), THE MERCHANT ACCOUNT (IN WHOLE AND IN PART), OR ANY INTELLECTUAL PROPERTY OF THE COMPANY PROVIDED TO MERCHANT, OR ANY COMPONENT OF ANY OF THE FOREGOING, WILL MEET THE MERCHANT’S REQUIREMENTS OR THAT THE MERCHANT’S USE OF THE MERCHANT ACCOUNT WILL BE UNINTERRUPTED OR ERROR-FREE.
7.2. Limitation of Liability.
(a) IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL (INCLUDING LOST PROFITS) DAMAGES ARISING FROM OR IN ANY WAY CONNECTED WITH ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF THE AFFECTED PARTY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF THE COMPANY 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 OR PAYABLE BY MERCHANT UNDER THIS AGREEMENT.
(b) The foregoing limitations of liability set forth in Sections 7.3(a) and (b) shall not apply with respect to: (i) the willful misconduct of a party; or (ii) the obligations of any Indemnifying Party pursuant to Section 6.
(c) THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
8. MISCELLANEOUS TERMS
(a) Subject to Section 8.1(b) below, neither the Company nor the Merchant shall assign, transfer, sublicense, or otherwise dispose of this Agreement (or any rights or benefits hereunder), in whole or in part, or delegate is obligations under this Agreement, in whole or in part, to any other person without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided that, subject to Section 8.1(b), each party shall have the right to assign this Agreement, without the consent of the other party, in connection with the sale of all or substantially all of the assets of the assigning party, or merger of the assigning party (a “Permitted Assignment”).
(b) Neither an assignment/delegation by Merchant with written consent of the Company, nor a Permitted Assignment, releases the assigning/delegating party from any of its obligations under this Agreement unless such written consent so states. The rights of any permitted assignee hereunder shall be subject to any and all set-offs, counterclaims and other comparable rights arising hereunder. Any assignment/ delegation of rights/obligations of any of this Agreement contrary to the terms and conditions of this Section 8.1 shall by null and void and of no force or effect.
8.2. Governing Law; Jurisdiction Venue; Disputes.
This Agreement is deemed to have been entered in the State of Connecticut, and its interpretation, construction, and the remedies for enforcement or breach are to be applied pursuant to, and in accordance with, the laws of the State of Connecticut, without giving effect to any choice or conflict of law provision or rule (whether of the State of Connecticut or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Connecticut. Venue and jurisdiction for any action or claim brought under this Agreement shall be in the courts with proper jurisdiction located in the State of Connecticut, and the parties expressly submit themselves to the personal jurisdiction of such courts. Disputes shall be resolved pursuant to the terms and conditions of Section 9.
8.3. Force Majeure.
Neither the Company nor Merchant shall be liable to the other party for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to a Force Majeure Event. A “Force Majeure Event” is any event beyond the control of the excusing party which occurs after the Effective Date and which was not reasonably foreseeable at that time and whose effects are not capable of being overcome without reasonable expense or loss of time or both, including (without limitation) war, terrorism, civil unrest, blockades, boycotts, strikes, lock-outs and other general labor disputes, acts of government or public authorities, natural disasters, exceptional weather conditions, breakdown or general unavailability of transport facilities, accidents, fire, explosions and general shortages of energy, failures in external networks, or any delay to the extent caused by the acts or omissions of the other party.
This Agreement shall be binding on the parties, their affiliates, parents, subsidiaries, successors, and permitted assigns (if any), and each party warrants that the undersigned representative of such party is authorized to execute this Agreement on behalf of such party.
8.5. Complete Understanding.
This Agreement constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior proposals, understandings and other agreements (as to all, written and oral) between the parties relating to the subject matter hereof.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
8.7. Waiver and Amendment.
No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing signed by the party to be charged. No failure or delay by either party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power or remedy.
8.8. Independent Contractors.
The Company, and its personnel, contractors and agents, in their performance under this Agreement, are acting as independent contractors and not as employees or agents of the Merchant. Under no circumstance will either party have the right or authority to enter into any contracts or assume any obligations for the other or to give any warranty or make any representation on behalf of the other.
During the Term and for one (1) year after the termination/expiration date of the Term, neither the Company nor the Merchant shall, and neither shall assist any other person to, directly or indirectly recruit or solicit (other than by general advertisement not directed specifically to any person or persons) for employment or engagement as an independent contractor any person then or within the prior twelve (12) months employed or engaged by the other party and involved in any respect with the Software or the performance of this Agreement.
Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, upon receipt; or (iii) if by next day delivery service, upon such delivery. All notices shall be addressed to the applicable party at its respective address first set forth in the Preamble to this Agreement, or such other address as may be designated on notice to the other party pursuant these notice provisions.
8.11. Cumulative Rights and Remedies.
The rights and remedies of the Company and Merchant provided for under this Agreement are neither exclusive nor mutually exclusive, and the Company and Merchant shall be entitled to resort to any such rights and remedies, or any other remedy available to the Company and Merchant at law or in equity, or some or all in any combination, at each of their discretion.
8.12. Counterparts; Electronic/Facsimile Signatures.
This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall constitute a complete and original instrument but all of which together shall constitute one and the same agreement (notwithstanding that all of the parties are not signatories to the original or the same counterpart, or that signature pages from different counterparts are combined), and it shall not be necessary when making proof of this Agreement or any counterpart thereof to account for any other counterpart, and the signature of any party to any counterpart shall be deemed to be a signature to and may be appended to any other counterpart. For purposes of this Agreement, a document (or signature page thereto) signed and transmitted by facsimile machine or other electronic means (including pdf or any electronic signature complying with the U.S. federal ESIGN act of 2000, e.g., www. Docusign.com) is to be treated as an original document. The signature of any party on any such document, for purposes hereof, is to be considered as an original signature, and the document transmitted is to be considered to have the same binding effect as an original signature on an original document. At the request of any party, any facsimile or other electronic signature is to be re-executed in original form by the party which executed the facsimile or other electronic signature. No party may raise the use of a facsimile machine or other electronic means, or the fact that any signature was transmitted through the use of a facsimile machine or other electronic means, as a defense to the enforcement of this Agreement.
8.13. Rules of Usage.
In this Agreement, unless a clear intention appears otherwise: (a) the singular number includes the plural number and vice versa; (b) reference to any person includes such person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement, and reference to a person in a particular capacity excludes such person in any other capacity or individually; (c) reference to any gender includes each other gender; (d) reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof; (e) reference to any law means such law as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder; (f) “hereunder,” “hereof,” “hereto,” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular section or other provision hereof; (g) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term; (h) “or” is used in the inclusive sense of “and/ or”; (i) with respect to the determination of any period of time, “from” means “from and including” and “to” means “to but excluding”; (j) references to documents, instruments or agreements shall be deemed to refer as well to all addenda, exhibits, schedules or amendments thereto; (k) references to “person” or “persons” means an individual, corporation, limited liability company, partnership, trust, joint venture or other legal entity; (l) article and section headings herein are for convenience only and shall not affect the construction hereof; and (m) section and article references shall be deemed to refer to all subsections and sections thereof, unless otherwise expressly indicated.
In addition to all other provisions which expressly survive termination/ expiration of this Agreement, or whose context requires such survival, the following provisions shall specifically survive termination of this Agreement: Sections 2.3, 2.5, 3, 4.3, 5, 6, 7, 8, 9 and 10.
9. DISPUTE RESOLUTIONS
9.1. General Intent.
Any and all disputes between the parties arising from or relating to this Agreement or the relationship between the parties as reflected by this Agreement (each a “Dispute”) shall be resolved in accordance with this Section 9. The intent of the parties is to identify and promptly attempt to resolve all Disputes. Except as provided otherwise elsewhere in this Agreement, before attempting to exercise any legal or equitable remedy, including termination of this Agreement for cause, each party shall follow the dispute resolution procedure set forth in this Section 9 (the “Dispute Resolution Process”). Any periods of time specified in this Section 9 shall be independent of, and may run concurrently with, any periods of time indicated in the Term.
Each party shall notify the other party in writing within a reasonable period of time after becoming aware of any Dispute or of any breach by the other party of this Agreement, (a “Breach”). A notice of Dispute or Breach shall describe in reasonable detail the nature of the Dispute or Breach.
If either party delivers to the other a notice of Dispute or Breach, then the parties shall promptly engage in good faith negotiations between progressively more senior representatives of each party over a period of thirty (30) days. Notwithstanding the foregoing, a party will not be required to engage in discussions pursuant to this Section 9.3 of a Dispute or Breach beyond a time that is ninety (90) days before expiration of the statute of limitations applicable to that Dispute or Breach. All discussions conducted pursuant to this Section 9.3 will be treated as confidential settlement discussions and none of the proposals, counter-proposals or statements made during discussions will be admissible for any purpose in any other proceeding.
If the discussions described in Section 9.3 do not result in negotiated resolution, then either party may require the other to participate in non-binding commercial mediation proceedings, whereupon each party shall participate in such mediation in good faith in an effort to resolve their differences. The mediation shall be administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Rules then in effect (insofar as such rules are not inconsistent with the provisions of this Agreement), and shall be conducted in the State of Connecticut and City of New Haven at a location mutually agreed to by the parties (or determined by the mediator, if the parties fail to so agree), before a sole, neutral, and impartial mediator mutually agreed to by the parties or, if the parties fail to so agree, chosen by the AAA. Any person who serves as mediator shall possess the qualifications necessary to serve as an arbitrator under the American Arbitration Association’s Commercial Arbitration Rules for Large, Complex Commercial Disputes (with the intent of the foregoing being to ensure that the person serving as mediator possesses sufficient experience in large, complex commercial disputes to serve a useful role as mediator with respect to Disputes or Breaches arising under this Agreement) and, more specifically, shall possess significant knowledge and experience in the information technology industry. The person who serves as mediator hereunder for any given Dispute or Breach shall not be eligible to serve as an arbitrator for the same Dispute or Breach. The mediator shall be selected, as described above, and the mediation commenced, no later than twentyone (21) days after the delivery of the applicable written demand for mediation. The mediation shall be concluded, regardless of whether the applicable Dispute or Breach has then been resolved, within sixty (60) days after delivery of the applicable written demand for mediation. Each party shall pay its own expenses incurred in connection with any mediation under this Section, and each party shall share equally the costs of the mediator and AAA and any other third-party costs and expenses of the mediation. The mediation will be treated as a confidential settlement discussion and none of the proposals, counter-proposals or statements made in the course of the mediation will be admissible for any purpose in any other proceeding. The mediator will not testify for either party in any later proceeding related to the dispute. No recording or transcript will be kept of the mediation proceedings. Notwithstanding the foregoing, a party will not be required to engage in mediation pursuant to this Section 9.4 of a Dispute or Breach beyond a time that is ninety (90) days before expiration of the statute of limitations applicable to that Dispute or Breach.
Any Dispute or Breach that is not resolved by the discussions or the mediation required by this Agreement, including any issue regarding the extent to which any Dispute or Breach is subject to arbitration and the applicability or enforceability of these dispute resolution procedures, shall, subject to Section 9.6, be decided by binding arbitration administered by the AAA under its Complex Commercial Arbitration Rules then in effect (insofar as such rules are not inconsistent with the provisions of this Agreement), and shall be conducted, State of Connecticut and City of New Haven at a location mutually agreed to by the parties (or determined by the arbitrators, if the parties fail to so agree), before three arbitrators, each of whom shall possess the same qualifications and characteristics specified with respect to mediators in Section 9.4. Each of the parties shall choose one arbitrator and the third arbitrator shall be chosen by the first two arbitrators. If, for any reason, the parties cannot agree upon an arbitrator, either party fails to designate an arbitrator, such designated arbitrators fail to designate a third arbitrator, or any designated arbitrator refuses to serve in such capacity, an arbitrator shall be promptly designated by the AAA upon the demand of either party. Any counterclaims and other related actions shall be brought in the same venue. During the ninety (90) days following the commencement of arbitration, the parties will consult between themselves and with the arbitrator to define and limit the issues and will exchange those documents or other evidence each intends to use at the arbitration to support its case, and provide each other with names of all proposed witnesses. Each party shall cooperate fully in facilitating discovery. A majority of the arbitrators shall have the power to, as appropriate and consistently with the terms of this Agreement, determine and effect a fair resolution of the applicable Dispute or Breach, effect a termination of this Agreement, and award damages. The arbitrators (or a majority of them) shall decide all matters submitted to them within thirty (30) days following the conclusion of any necessary hearings. Any award rendered by a majority of the arbitrators shall be in writing and shall set forth in reasonable detail the facts of the Dispute or Breach, the decision of the arbitrators, and their reasons therefor. The award rendered by a majority of the arbitrators in any arbitration hereunder shall be final and binding upon the parties, and judgment on any such award may be entered in any court having jurisdiction thereof. The arbitrator shall have no power or authority to award exemplary or punitive damages, or nonmonetary or equitable relief of any sort, or any relief not measured by the prevailing party’s actual damages (adjustments for time value of money permitted), and will not make any decision inconsistent with this Agreement. All aspects of the arbitration and any award shall be confidential. Neither the parties nor the arbitrator may disclose the existence, content or results of the arbitration, except as necessary to comply with legal or regulatory requirements. Before making any such disclosure, a party will give written notice to all other parties and shall afford such parties a reasonable opportunity to protect their interests.
9.6. Exceptions to Arbitration; Forum.
Notwithstanding anything to the contrary in this Agreement, either party may (a) seek equitable remedies from a court of competent jurisdiction and (b) in lieu of arbitration pursuant to Section 9.5, litigate Disputes or Breaches concerning privacy, or ownership or misuse of proprietary/ confidential information or intellectual property in courts of competent jurisdiction, as provided below, and upon commencement of any such proceeding, any arbitration then pending shall be stayed, insofar as it concerns the matters subject to decision by such court. Any court proceedings pursuant to the preceding sentence, or any matter that may for any reason be litigated before a court notwithstanding the arbitration provisions hereof, shall be litigated and decided solely and exclusively in a court having jurisdiction and which is located in the county (for state courts) or the district (for federal courts) of the State of Connecticut and City of New Haven. Any counterclaims and other related actions may be brought in the same venue. This choice of venue is intended by the parties to be mandatory and not permissive, thereby precluding the possibility of litigation of Disputes or Breaches in any other jurisdiction or venue. Each party hereby waives any right it may have to assert the doctrine of forum non conviens or any similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulates that the state and federal courts used pursuant to this Agreement shall have in personam jurisdiction over each of them (and their respective indemnitees) for the purpose of litigating any such dispute, controversy or proceeding. Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this action by registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Agreement. Nothing herein shall affect the right of any party to serve process in any other manner permitted by law. THE PARTIES HERETO WAIVE THEIR RIGHT TO A JURY TRIAL IN ANY ACTIONS THAT THEY MAY BRING, OR THAT MAY BE BROUGHT AGAINST THEM, UNDER OR IN CONNECTION WITH THIS AGREEMENT.
9.7. Equitable Relief.
In the event of any breach or threatened breach of the provisions of this Agreement concerning ownership or misuse of confidential information or intellectual property, the parties acknowledge that monetary damages may be an inadequate remedy and the innocent party may suffer irreparable harm. Accordingly, those provisions may be enforced by appropriate equitable relief pursuant to Section 9.6 upon a showing that the moving party has no adequate legal remedy, is likely to suffer irreparable harm, and satisfies other applicable requirements for equitable relief.
9.8. Fees and Costs.
During the pendency of any arbitral or court proceeding, each party shall bear its own attorneys’ fees and costs, and the parties shall each pay half the arbitration costs. The prevailing party in any arbitration or court proceeding under this Agreement will be entitled to recover its reasonable fees and costs incurred in the arbitration or proceeding including reasonable attorneys’ fees and costs and the costs of arbitration (but not the costs of mediation pursuant to Section 9.4) from the non-prevailing party, provided that the arbitrators or judge have the discretion to determine that there is no prevailing party or to eliminate or reduce the prevailing party’s recovery of its fees and costs to the extent that the arbitrators or judge determine that full recovery thereof would be unreasonable or disproportionate to the harm suffered by the prevailing party.
“Activation Date” means the date the Company provides access to the Merchant; such access to be deemed given when the Merchant is able to access the Merchant Account through the Merchant username and password therefor.
“Business Day” means the active banking days as designated by the Federal Reserve Bank of New York, New York excluding Saturday, Sunday and specified holidays.
“Documentation” means all manuals, guidelines, reports, media and other documentation regarding the Software or any Intellectual Property of the Company which are provided in writing or electronic format by the Company to the Merchant.
“Gift Vouchers” means Uptown Network digital gift vouchers consisting of an alphanumeric code on a mobile device.
“Merchant Data” means data regarding the Merchant as generated by the Software and Merchant Account.
“Merchant Input Data” means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from the Merchant by or through the Software or that incorporates or is derived from the processing of such information, data or content by or through the Software.
“Merchant Systems” means the Merchant’s information technology infrastructure, including computers, servers, operating systems, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Merchant or through the use of third-party services.
“Proprietary Information” means: (a) with respect to Proprietary Information of the Company, confidential or proprietary information, processes and material of the Company relating to or associated with the Software that are conceived, made or possessed by the Company including without limitation: plans, designs, performance specifications, marketing plans, algorithms, Intellectual Property, Intellectual Property Rights, ideas, inventions, formulas, techniques, and know how as well as any of the foregoing relating to the Software and the Merchant Account (and each of the irrespective source codes) and the Documentation; and (b) with respect to Proprietary Information of Merchant, confidential or proprietary information, and material of Merchant relating to or associated with the Merchant Data including without limitation the Merchant Materials, data and information regarding Merchant’s customers and all other non-public personally identifiable information
“Regulatory Authority” means any international, U.S. federal or state governmental or quasigovernmental regulatory authority, department, or judicial or administrative body. “Regulatory Requirement” means any law, ordinance, regulation, rule, judgment, order, declaration, decree, directive, legislative enactment, or other binding requirement of or by any Regulatory Authority. References to any Regulatory Requirement refer to such Regulatory Requirement in changed or supplemented form, or to a newly adopted Regulatory Requirement replacing a previous Regulatory Requirement.