MASTER SERVICES AGREEMENT
THIS
MASTER SERVICES AGREEMENT (“Agreement” or “MSA”) DATED AS OF THE CONTRACT START DATE OF THE APPLICABLE ORDER FORM(S) IS MADE BY AND BETWEEN
INTERPAYMENTS INC. (“InterPayments”) AND THE CUSTOMER IDENTIFIED IN THE APPLICABLE ORDER FORM (“Customer”). THE
INDIVIDUAL WHO ACCEPTS OR AGREES TO THIS AGREEMENT ON BEHALF OF A COMPANY, OR
OTHER LEGAL ENTITY, BY EXECUTING AN ORDER FORM REPRESENTS AND WARRANTS THAT HE,
SHE OR THEY HAS THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY TO
THIS AGREEMENT. DEFINITIONS
1.1
“Aggregated Use Data” means data
concerning the use, performance, and measurement data created by, or made
available through the Services. These data may be related to or derived from
Customer’s use of the Services.
Aggregate Data does not include any personally identifiable information
relating to Customer, Authorized Users, or Customer’s clients or customers.
Aggregated Use Data does not identify or permit identification of an individual
user or customer, nor does it include any Card Data.
1.2
“Applicable Law” means all federal,
state, provincial or local laws, rules, regulations applicable to an activity
carried out or proposed to be carried out by a Party under this Agreement.
1.3
“Authorized Users” means any individual
(a) authorized by Customer to access the Services and (b) that has been
supplied access credentials to the InterPayments Portal by Customer (or by
InterPayments, at Customer’s request).
1.4
“Card Data” means the 16-digit
primary account number, card verification value, and/or date of expiration of
any bank-issued payment card.
1.5
“Card Network” means Visa®, MasterCard®, American Express®,
and/or Discover®.
1.6
“Card Network Merchant Rules” means the most recent
publicly available merchant guidelines published by a Card Network.
1.7
“Confidential Information” means any
information disclosed, directly or indirectly, by or on behalf of one Party (“Discloser”)
to the other Party (“Recipient”) pursuant to this Agreement that:
(a) is labelled as “confidential,”; or (b) otherwise should reasonably be
expected to be treated in a confidential manner based on the circumstances of
its disclosure and the nature of the information itself. The Services,
including all access credentials thereto, except for the public-facing aspects
of the Services are InterPayments’ Confidential Information. Confidential
Information does not include any information which: (i) is or becomes generally
known and available to the public through no act or omission of the Recipient;
(ii) was already in the Recipient’s possession without a duty of confidentiality
owed to the Discloser at the time of disclosure; (iii) is lawfully obtained by
the Recipient from a third-party who has the right to make such disclosure; or
(iv) is independently developed by the Recipient without breach of an
obligation owed to the Discloser and without any use of or reference to the
Discloser’s Confidential Information.
1.8
“Customer Application” means the Customer’s methods of accepting card payments and
Customer’s information technology infrastructure, software, hardware,
databases, electronic systems, and networks.
1.9
“Fees” means the fees and expenses due
and payable under this Agreement as described in the applicable Order Form.
1.10
“InterPayments API” means any
application programming interface that InterPayments makes available to
Customer directly or through the InterPayments Portal.
1.11
“InterPayments Portal” means the InterPayments
proprietary online portal located at www.interpayments.com or any successor web domain.
1.12
“InterPayments Surcharge Solution” means the proprietary
software solution provided by InterPayments that is used to apply a credit card
surcharge for each end-user purchase completed on the Customer Application via
integration with the InterPayments API or other relevant implementation
1.13
“Order Form” means each the Order Form entered into by
the Parties pursuant to this Agreement. Order Forms specify the Fees to be paid
by Customer and include the configuration, term, and other details about the
Services to be provided by InterPayments.
Order Forms may include a description of and additional representations,
warranties, and responsibilities amongst and between the Parties related to each
Service. Each Order Form is entered into
by the Parties pursuant to the terms and conditions of this Agreement. In the
event of a direct conflict between the terms and conditions of this Agreement
and the terms and conditions of any Order Form, the terms and conditions of the
Order Form shall control with respect to the subject matter thereof.
1.14
“Party”
means InterPayments or Customer individually, and “Parties” means InterPayments and Customer
collectively.
1.15
“Payment Service Provider” means a third-party that enables or provides the payment
services directly to the Customer via a contractual relationship, including: a merchant
account, payment processing, payment facilitation, and/or payment acceptance
across at least one (1) Card Network.
1.16
“Product-Specific
Terms” means the additional terms and conditions of use or access, if any,
which are posted to the portal or account via which Customer or an end user
accesses a particular Service, and which Customer or the end user is required
to acknowledge in connection with access to or use such of that Service.
1.17
“Services” means the products and
services purchased by Customer as described in the applicable Order Form, which
may include InterPayments API, the InterPayments Portal, the InterPayments
Surcharge Solution, and other services set forth in such Order Form in
connection with such Services. Customer shall only have access to the Services
selected by Customer in the applicable Order Form.
2.
ORDER FORM; LICENSE
GRANT AND RESTRICTIONS
2.1
Order Form(s) and
License(s).
(a)
Each
Order Form will identify the applicable Service(s) and the country in which
Customer desires to receive the Service(s). Nothing in this Agreement requires
InterPayments or Customer to enter into an Order Form under this Agreement or
requires InterPayments to provide a Service in a particular country.
(b)
Subject
to Customer’s compliance with this Agreement and each Order Form entered into
hereunder, InterPayments grants to Customer a limited, non-exclusive,
non-transferable (except as permitted in this Agreement) right, during the applicable
Subscription Term, to access and use the InterPayments Services as described in
an applicable Order Form for Customer’s internal business purposes. For clarity, InterPayments does not license Payments
Services and Payment Services are excluded from this clause. Subject only to
the foregoing license, InterPayments reserves all other rights. Customer
shall not use any Services that are not set forth in the fully executed Order
Form. If Customer has testing/sandbox access to the Services, Customer agrees
to use it solely for testing non-production data and for internal business
purposes only.
2.2
Authorized Users. Customer is solely
responsible for: (a) identifying and authenticating all Authorized Users; (b)
approving access by such Authorized Users to the Services; (c) protecting
against unauthorized use by Authorized Users; (d) maintaining the
confidentiality of usernames, passwords and account information for Authorized
Users; and (e) all activities that occur under its Authorized Users’ usernames,
passwords or accounts. InterPayments is not responsible for any harm arising
from any acts or omissions of Authorized Users or any person accessing the
Services via the usernames, passwords and account information for Authorized
Users. Customer will notify InterPayments immediately of any actual or
suspected breach of this Agreement or any Order Form by any Authorized User or
unauthorized access to the usernames, passwords and account information for
Authorized Users. Any breach of this Agreement or any Order Form by any
Authorized User or any person accessing the Services via the usernames,
passwords and account information for Authorized Users is deemed a breach by
Customer. InterPayments may in its sole discretion limit the number of
Authorized Users who may access the Services upon prior notice to Customer;
provided, that Customer may have up to ten (10) Authorized Users or the number
of Authorized Users as specified in an applicable Order Form.
2.3
Monitoring;
Suspension; Reporting.
InterPayments may, but is under no obligation to, monitor Customer’s use of the
Services. InterPayments may, in its reasonable discretion, suspend access to
the Services if InterPayments believes that: (a) Customer is in breach of this
Agreement or any Order Form; (b) use of Services as permitted in this Agreement
poses a security risk to InterPayments or Customer; (c) Customer’s use of any
Services violates, misappropriates, or infringes the rights of InterPayments or
any third-party or violates any Applicable Law; (d) there is a bug or
performance issue with any Services; or (e) any Applicable Law prohibits
InterPayments from performing any of its obligations under this Agreement or
providing any aspect of the Services including any related data.
2.4
Restrictions. Customer will not,
nor shall it attempt to, and will not direct others or allow others under its
control to: (a) reverse engineer, decompile, disassemble or translate the
Services, or otherwise attempt to derive source code, trade secrets or know-how
in the Services; (b) interfere with, modify, disrupt
or disable features or functionality of the Services; (c) copy, sell,
rent, lease, sublicense, distribute, create derivative works of, assign or
otherwise transfer or provide access to, in whole or in part, the Services to
any third-party except to Authorized Users; (d) use the Services to violate
Applicable Law or infringe, misappropriate or violate of any third-party
rights; (e) interfere with or disrupt the integrity or performance or
attempt to gain unauthorized access to the Services (f) develop, distribute or
make products or services that compete with any Services; or (g) remove or
alter any proprietary notices or marks on any Services.
2.5
Data. InterPayments may
collect, publish, or distribute Aggregated Use Data related to Customer’s use
of the Services collected in accordance with the Agreement to continue to
develop, improve functionality of, and provide support for the Services.
InterPayments is the sole owner of Aggregated Use Data. Upon written
request of a Customer’s Payment Service Provider, InterPayments may provide certain raw,
Customer-derived data, in an attributable form to Customer’s Payment Service
Provider. InterPayments will not publish or distribute data related to
Customer’s use of the Services other
than in accordance with this Section 2.5.
2.6
Feedback. Customer may
voluntarily provide to InterPayments ideas, suggestions, or feedback about the
Services on a non-confidential basis (“Feedback”). Customer hereby
grants to InterPayments a non-exclusive, perpetual, irrevocable, transferable,
sublicensable, royalty-free, and worldwide license to implement, use, modify
and otherwise exploit, in any way without restriction, the Feedback, without any
fees, attribution or other obligations to Customer. Notwithstanding the foregoing, nothing in
this Section 2.6 (Feedback) grants InterPayments a license to use any
Inventions covered by a registered patent owned by Customer.
2.7
Ownership; Reservation
of Rights.
Subject to the license that InterPayments grants to Customer in Section 2.1, as
between Customer and InterPayments, InterPayments solely owns and retains all
rights, title, and interest in and to the Services, including all works of
authorship (including software and documentation), trade secrets, inventions
and other technology in any form pertaining thereto and all goodwill arising
therefrom, and Customer agrees not to take any action that would be
inconsistent with such ownership. All rights that InterPayments does not
expressly grant to Customer in this Agreement are hereby reserved and
InterPayments does not grant to Customer any implied rights or licenses under
any theory.
3.
CUSTOMER APPLICATION. Notwithstanding anything to the contrary in this
Agreement: (i) Customer has and will retain sole control over the security of,
operation, maintenance, management of, and all access to and use of, the
Customer Application, and Customer is solely responsible for obtaining all
internet connectivity necessary to access and use the Services; (ii)
InterPayments is not responsible or liable for any delay or failure of
performance arising in whole or part from the Customer Application; (iii)
Customer is solely responsible for paying all costs to maintain
interoperability between the Services and the Customer Application; and (iv)
Customer will provide all cooperation and assistance as InterPayments may
reasonably request to enable InterPayments to exercise its rights and perform
its obligations in connection with this Agreement.
4.
FEES AND PAYMENT TERMS
4.1
Fees and Expenses. In consideration for
providing the Services Customer will pay InterPayments the Fees as specified in
the applicable Order Form.
4.2
Payment Terms. Customer will pay
InterPayments the Fees subject to the payment terms specified in the applicable
Order Form. All payments will be made in the currency specified in the Order
Form via electric funds transfer or other means specified in the Order Form, as
per the instructions of InterPayments. InterPayments shall not be responsible
for any processing fees Customer’s financial institution may impose upon
Customer in the payment of its invoices (including without limitation bank
transfer fees).
4.3
Late Payments. InterPayments may
charge interest on all past due invoices at a rate of 1.5% per month, or the
highest rate allowed by Applicable Law, whichever is lower. If Customer is more
than 30 days past due in payment, then InterPayments may, upon written notice
to Customer, modify the payment terms to require full pre-payment of any or all
current or pending Fees or require other assurances to secure Customer’s
payment obligations hereunder and may limit or suspend Services until Customer
comes into compliance with the applicable payment terms. Additional terms and
conditions regarding payment may be specified in the applicable Order Form.
4.4
Taxes. Fees are exclusive of all taxes, duties,
levies, tariffs and other governmental or regulatory charges (including without
limitation VAT if applicable). Customer will be solely responsible for payment
of all such amounts and any penalties and interest arising from the failure to
pay such amounts (other than taxes based on InterPayments’ net income).
4.5
Fee Increases. Unless otherwise agreed in writing, InterPayments may
increase Fees for each Renewal Subscription Term, but not during any Term. In
order for price increases to be effective, InterPayments must notify Customer at
least forty-five (45) days prior to the beginning of the Renewal Subscription
Term. Such notice may be in the form of an invoice, other written notice
(including e-mail) or delivered via the InterPayments Portal. If Customer
objects to the increase, Customer may elect to not renew subscription to the
Services. Customer acknowledges that the
following do not constitute Fee increases: (i) additional fees for any upgrade
or any additional Service that Customer orders; (ii) overage fees for usage in
excess of Customer’s usage tier, if defined and applicable in an Order Form;
and (iii) expiration of any discount or incentive programs to which Customer
was previously entitled.
4.6
Audit. Customer will
maintain complete and accurate records documenting all completed, credited, and
refunded payment transactions through its Payment Service Provider(s) (“Records”). Customer will allow
InterPayments, or certified public accountants that are selected by
InterPayments, to inspect and audit any and all Records upon reasonable notice
to Customer and during normal business hours. InterPayments may audit Customer
no more than once every 12 months unless it has reasonable cause to believe
that Customer failed to comply with this Agreement or an Order Form. Customer
will reasonably cooperate with such audit and provide access to all Records as
necessary to complete the audit. Customer will pay to InterPayments within 30
days after the completion of the audit the amount of any underpayment
revealed by any such audit. If any such audit reveals an
underpayment by Customer of five percent (5%) or more, then Customer also will
reimburse InterPayments for the reasonable costs and expenses of
such audit. The requirements of this Section 4.6 will survive for two (2)
years following the termination or expiration of the Term.
5.1
Term. This Agreement will commence on the Contract Start Date specified
in the initial Order Form entered into by the Parties and shall remain in
effect until the expiration or termination of all Order Forms entered into by
the Parties (the “Term”).
5.2
Subscription Terms. Customer may purchase subscriptions to one or more
Services during the Term. The effective period of each subscription (the “Subscription
Term”) with respect thereto specified in the applicable Order Form. A
single Order Form may provide for the purchase of multiple Service
subscriptions, each of which may have different Subscription Terms.
(a)
Initial Subscription Term. Customer’s initial Subscription Term for a Service
(the “Initial Subscription Term”) as defined in the Order Form(s)
which will begin on the “Effective Date” specified on the signature page of the
Order Form with for that Service.
(b)
Automatic Renewal.
At the end of the then-current Subscription Term, each subscription to a
Service will automatically renew for (i) successive twelve (12) month periods
(a “Renewal Subscription Term”), if a renewal term is not
specified in the Order Form, or (ii) for a period specified in the Order Form, unless
either Party provides written notice of non-renewal to the other Party at least
thirty (30) days before the expiration date of the then-current Subscription
Term.
5.3
Termination. Either Party may
terminate this Agreement by written notice if the other Party is in material
breach of this Agreement and such material breach is not cured within 30 days
after written notice of such breach from the non-breaching Party. Upon termination of this Agreement, each Order Form entered
into by the Parties shall be deemed to be simultaneously terminated. For
avoidance of doubt, InterPayments may consider, in its sole discretion, late or
non-payment of amounts due hereunder or under any Order Form to be a material
breach. In the event that the fees with respect to Services accessed or used by
the Customer or other amounts due hereunder or any Order Form are to be paid by
a third-party and that third-party fails to pay any such amounts within 60 days
of the applicable payment due date, InterPayments may terminate this Agreement
or any Order Form at its sole discretion upon notice.
5.4
Effects of Termination. Upon the expiration or
termination of this Agreement: (a) all access to the Services shall
automatically terminate; (b) all Fees will become due and payable immediately;
and (c) each Party will destroy or securely delete the other Party’s
Confidential Information and, upon request, provide written certification of
such destruction or deletion.
5.5
Survival. The following Sections, and any defined terms and
provisions required to interpret or enforce those Sections (but only to the
extent required for such interpretation or enforcement), will survive the
termination or expiration of this Agreement: 1 (Definitions), 2.2 (Authorized Users), 2.4 (Restrictions), 2.5
(Data), 2.6 (Feedback), 2.7 (Ownership), 3 (Customer Application), 4 (Fees and
Payment Terms), 5.4 (Effects of Termination), 6 (Confidentiality), 7
(Representations and Warranties), 8 (Limitation of Liability), 9
(Indemnification) and 10 (Miscellaneous).
6.1
Confidential
Information. In connection with
this Agreement and/or the Order Form the Parties may transmit Confidential Information
to each other. “Confidential
Information” means any information or documentation disclosed by either Party
to the other that is marked as confidential or would be deemed as confidential
by a reasonably party under the circumstances.
In such circumstances the Party transmitting Confidential Information
shall be deemed the “Disclosing Party” and the Party receiving the Confidential
Information shall be deemed the “Receiving Party.” Confidential Information includes, but is not
limited to the Disclosing Party’s customers, clients, partners, source code,
products, plans, technology, intellectual property, processes, designs, and
financial information.
6.2
Confidentiality Obligations. The Receiving Party
will use the same efforts to protect the Disclosing Party’s Confidential
Information that it uses to protect its own confidential information of similar
sensitivity, but in no event will such efforts be less than commercially
reasonable efforts. The Receiving Party may only use the Disclosing Party’s
Confidential Information to perform its obligations and exercise its rights
under this Agreement. The Receiving Party will not disclose or provide access
to the Disclosing Party’s Confidential Information to any third-party,
including but not limited to non-proprietary, third-party artificial
intelligence platforms, except: (a) for disclosures to the Receiving Party’s:
(i) human employees or human consultants with a need to know such information;
or (ii) professional advisors or potential investors or acquirers (each in (i)
and (ii), a “Permitted Recipient”); and (b) the Receiving Party may
disclose the Disclosing Party’s Confidential Information if it is compelled by
Applicable Law to do so, provided the Receiving Party gives the Disclosing
Party prior written notice of such disclosure (to the extent legally permitted)
and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing
Party wishes to contest the disclosure. The Receiving Party will promptly
inform the Disclosing Party in writing of any actual or suspected loss or
alteration of, or unauthorized access to, use or disclosure of, Confidential
Information. The Receiving Party’s Permitted Recipients must informed of the
confidential nature of any Confidential Information provided to them and be
bound by confidentiality obligations at least as protective of the Disclosing
Party’s Confidential Information as those set contained this Section 6 and the
Receiving Party will be liable for any breach of this Agreement by its
Permitted Recipients.
7.
REPRESENTATIONS AND
WARRANTIES
7.1
Mutual Representations
and Warranties.
Each Party represents and warrants that it has all required corporate authority
to enter into this Agreement and to perform its obligations under this
Agreement, and that the performance of such obligations does not conflict with
or result in a breach of any other agreement of such Party or any judgment,
order, or decree by which such Party is bound.
7.2
InterPayments. InterPayments
represents and warrants that:
(a)
InterPayments shall provide the Services in
compliance with Applicable Laws and Card Network Merchant Rules;
(b)
the
InterPayments Surcharge Solution will be configured so it does not:
(i)
apply
surcharges to purchases that are prohibited by Applicable Law or Card Network
Merchant Rules;
(ii)
apply
surcharges to purchases in any jurisdiction where such surcharges are
prohibited by Applicable local Law; or
(iii)
apply
surcharges at rates that are greater than permitted by Applicable Law or Card
Network Merchant Rules;
(c)
InterPayments
will at no time have access to or be in possession of Card Data unless
otherwise specified in an applicable Order Form.
7.3
Customer. Customer represents and warrants
that it:
(a)
will
use the Services it receives under this Agreement in compliance with Applicable
Law and Card Network Merchant Rules;
(b)
shall
notify its customers of a potential surcharge before the completion of any
transaction and, if applicable, at both the (i) store entry and (ii) store
payment counter for physical point-of-sale payments;
(c)
will
include a separate line item for the surcharge amount or percentage in its
presentation to customers both on the (i) payment application and (ii) payment
confirmation/receipt. Customer must
include the surcharge amount OR percentage in the transaction total amount and
refund the pro-rated surcharge amount if a credit or refund is processed for
the goods or services sold;
(d)
will not include a surcharge if the transaction already
includes “convenience fees” or “service fees” (as defined by Visa, MasterCard,
Discover, American Express, etc.); and
(e)
shall notify InterPayments promptly if it
is in violation of or becomes aware of its violation of Applicable Law or Card
Network Merchant Rules applicable to or affecting the Services.
7.4
Disclaimer. While InterPayments
strives to ensure that the Services will meet its Customer’s compliance needs, it
is acknowledged that the InterPayments technologies operate in a climate
characterized by rapid technological change, including frequent introductions
of new products and services, evolving industry standards and changing laws,
rules, regulations, and Card Network Merchant Rules, as well as changing
customer needs, requirements, preferences and use cases. TO THE FULLEST
EXTENT PERMITTED UNDER APPLICABLE LAW, AND EXCEPT FOR THE WARRANTIES SET FORTH
IN THIS SECTION 7, THE SERVICES (INCLUDING ALL DATA TRANSMITTED BY THE
SERVICES) ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITH ALL FAULTS, AND
INTERPAYMENTS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS OR
IMPLIED WARRANTIES IN CONNECTION WITH THIS AGREEMENT, INCLUDING ALL WARRANTIES
OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING,
USAGE, OR TRADE PRACTICE.
8.1
IN
NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL,
INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR
LOST REVENUE, LOST PROFITS, COST OF REPLACEMENT OF GOODS OR SERVICES, LOSS OF
TECHNOLOGY, GOODWILL, RIGHTS OR SERVICES, LOSS OF DATA OR INTERRUPTION OR LOSS
OF USE OF SERVICE IN CONNECTION WITH THIS AGREEMENT.
8.2
EXCEPT
WITH RESPECT TO FRAUD, GROSS NEGLIGENCE AND WILLFUL MISCONDUCT, INTERPAYMENTS’
TOTAL LIABILITY TO CUSTOMER FOR ALL CLAIMS IN CONNECTION WITH THIS AGREEMENT
WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO INTERPAYMENTS DURING THE
TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE APPLICABLE
CLAIM(S);
PROVIDED, THAT WITH RESPECT TO THE FIRST 12-MONTHS OF THE TERM, A PARTY’S
MAXIMUM LIABILITY SHALL BE NO GREATER TWENTY-FOUR (24) TIMES THE MONTHLY
MINIMUM FEE OR TWICE THE MINIMUM ANNUAL FEE FOR THAT PERIOD, WHICHEVER IS
APPLICABLE IN THE ORDER FORM.
8.3
SECTION
8.1 AND SECTION 8.2 WILL NOT APPLY TO: (A) BREACHES OF SECTION 6; (B)
INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY
RIGHTS, INCLUDING ANY BREACH OF SECTION 2.4; (C) INDEMNIFICATION OBLIGATIONS
ARISING UNDER SECTION 9; OR (D) INTERPAYMENTS’ DATA USAGE IN ACCORDANCE WITH TO
SECTION 2.5 (DATA).
8.4
THE
FOREGOING LIMITATIONS IN SECTIONS 8.1 AND 8.2 WILL APPLY REGARDLESS
OF WHETHER THE APPLICABLE LIABILITY ARISES FROM ANY CLAIM BASED UPON
CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE,
AND WHETHER OR NOT THE AGGRIEVED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON
LIABILITY IN THIS AGREEMENT, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE
AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION
COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON
LIABILITIES SET FORTH IN SECTION 8.1 AND 8.2 ARE AGREED ALLOCATIONS OF RISK AND
SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF
ANY LIMITED REMEDY.
9.1
Calculation Errors. In the event that the
InterPayments Surcharge Solution incorrectly calculates a surcharge amount or
incorrectly applies a surcharge where no surcharge should have been applied (a
“Calculation Error”) the Parties shall have the following rights and
obligations:
(a)
InterPayments
agrees to indemnify, defend and hold harmless the Customer from damages,
awards, judgments, settlement amounts, fines, penalties, losses, costs and
expenses (including reasonable legal fees and expenses and costs of
investigation) and other liabilities arising out of any lawsuit, claim, demand,
administrative action, arbitration or other legal or regulatory action or
proceeding brought or asserted against Customer by any third party as a result
of or in connection with a Calculation Error (“Compliance Claim”);
provided, that (1) Customer provides InterPayments with prompt written
notice of the Calculation Error or Compliance Claim once known or suspected by
Customer; (2) Customer provides InterPayments with all information and
assistance reasonably requested by InterPayments in connection with the defense
or settlement of the Compliance Claim; and (3) to the extent permitted by
Applicable Law, InterPayments is granted sole control over the defense and
settlement of such Compliance Claim.
(b)
Notwithstanding
anything to the contrary, InterPayments shall have no liability or obligation
to Customer with respect to any Calculation Error or Compliance Claim which is
the result of (1) Customer’s error or late or inaccurate information having
been provided to InterPayments by or on behalf of Customer; (2) Customer’s
action, omission, or implementation that is contrary to advice or guidance
provided by InterPayments in order for Customer to be compliant with Applicable
Law or Card Network Merchant Rules; or (3) Customer’s breach of this Agreement
or where Customer would otherwise be obligated under Section 9.3.
(c)
Notwithstanding
anything to the contrary, InterPayments shall have a maximum liability with
respect to Calculation Errors and Compliance Claims, whether with respect to
indemnification obligations under this Section or otherwise of no more than
$15,000 with respect to any single Calculation Error and during any 12-month
period shall be no greater than four (4) times the Fees paid to InterPayments
during the preceding 12-months, except that during the first twelve (12) months
of the Term the maximum liability on the part of InterPayments shall be
forty-eight (48) times the monthly minimum fee or four (4) times the Fees paid
to InterPayments since the commencement of the Term, whichever is greater.
(d)
In
the event that a Calculation Error results in excess profit to Customer due to
a high surcharge or a surcharge which should not have been applied,
InterPayments shall promptly upon becoming aware of such Calculation Error
advise the Customer to refund the excess or inapplicable surcharge have no
other liability to Customer with respect to such Calculation Error. In the event of a Compliance Claim against
Customer following Customer’s refund of the excess or inapplicable surcharge,
InterPayments shall have the obligations set forth in above.
(e)
THIS SECTION 9.1 STATES THE ENTIRE
LIABILITY OF INTERPAYMENTS, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT
TO ANY CLAIMS FALLING WITHIN THE SCOPE OF SECTION 9.1.
9.2
Intellectual Property Claims. InterPayments will:
(a) defend, or, at its option, settle, any claim brought against Customer by a
third-party alleging that Customer’s use of the Services as expressly
authorized in this Agreement constitutes a direct infringement of any
intellectual property rights of any third-party (a “IP Claim”); and (b)
indemnify and hold harmless Customer from any damages awarded in a final
judgment (or amounts agreed in a monetary settlement) in a IP Claim defended by
InterPayments; provided that Customer provides InterPayments: (i) prompt
written notice of; (ii) sole control over the defense and settlement of; and
(iii) all information and assistance reasonably requested by InterPayments in
connection with the defense or settlement of, any such IP Claim. If any such IP
Claim is brought or threatened, then InterPayments may, at its sole option and
expense: (1) procure for Customer the right to continue to use the infringing
items; (2) modify the infringing items to make them non-infringing; (3) replace
the infringing items with non-infringing technology having substantially
similar capabilities; or (4) if none of the foregoing is commercially
practicable, then terminate this Agreement. Notwithstanding the foregoing in
this Section 9.2, InterPayments will have no obligation under this Section 9.2:
(x) for any use of the InterPayments Software Solution in combination with
software, products, services or technologies not provided by InterPayments, to
the extent that the Services would not be infringing but for such combination;
(y) arising from or in connection with Customer’s failure to use the Services
in accordance with this Agreement; or (z) for any claims or actions that fall
within the scope of Section 9.3. THIS SECTION 9.2 STATES THE ENTIRE
LIABILITY OF INTERPAYMENTS, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT
TO ANY CLAIMS FALLING WITHIN THE SCOPE OF SECTION 9.2.
9.3
By Customer. Customer covenants and agrees to indemnify, defend and
hold harmless InterPayments and its parents,
subsidiaries, affiliates and their respective officers, directors, members,
employees, representatives, shareholders, agents, attorneys and permitted
assigns (collectively, the “InterPayments Indemnitee Parties”), from
and against any damages, awards, judgments, settlement amounts, fines,
penalties, losses, costs and expenses (including reasonable legal fees and
expenses and costs of investigation) and other liabilities arising out of any
lawsuit, claim, demand, administrative action, arbitration or other legal or
regulatory action or proceeding brought or asserted against any InterPayments
Indemnitee Parties by any third party to this Agreement as a result of or in
connection with (i) any untrue or inaccurate representation or warranty made by
Customer, or any failure on the part of Customer to provide timely and accurate
data to InterPayments and adequate disclosure to end-users as needed with
respect to the Services; (ii) any violation of Applicable Law or infringement,
misappropriation or violation of third-party rights by any aspect of the
Customer Application or any products or services advertised or commercialized
on or through the Customer Application; (iii) late, inaccurate or incomplete
data provided by or on behalf of Customer in connection with its use of or
access to the Services; or (iv) violation of applicable Card Network Merchant
Rules when they require Customer to surcharge non-credit card payment products,
including, without limitation, debit, stored value, prepaid or smart cards,
account access devices or other payment cards, services or products, excluding
electronic funds transfer, cash or check (collectively, “Other Payment
Products”); provided that InterPayments provides Customer with: (a) prompt
written notice of; (b) sole control over the defense and settlement of; and (c)
all information and assistance reasonably requested by Customer in connection
with, the defense or settlement of any such claim. Customer will pay all
damages finally awarded against InterPayments (or the amount of any settlement
Customer enters into) with respect to any such claim defended by Customer.
InterPayments may appear in connection with such claims, at Customer’s expense,
through counsel reasonably acceptable to Customer.
10.1
Successors and Assigns. Neither Party may assign this Agreement or any of its
rights under this Agreement or any Order Form entered into hereunder without
the prior written consent of the other Party and any such assignment shall be
null and void. Notwithstanding the foregoing, InterPayments may assign this
Agreement without the consent of Customer to any InterPayments affiliate, or
upon a change of control, consolidation, merger, sale of all or substantially
all of its business or assets related to this Agreement, or a similar
transaction or series of transactions. Subject to the foregoing, this Agreement
will be binding upon and inure to the benefit of the Parties and their
respective successors and permitted assigns.
10.2
Force Majeure. Neither Party will be liable for any failure or delay in
its performance under this Agreement due to any cause beyond its reasonable
control, including an act of war, terrorism, act of God, earthquake, flood,
embargo, riot, sabotage, labor shortage or dispute, governmental act or failure
or degradation of the Internet, but in all cases excluding the payment of Fees
(each, a “Force Majeure”). The delayed Party must give the other Party
notice of such Force Majeure and use commercially reasonable efforts to correct
such failure or delay in performance.
10.3
Governing Law. This Agreement, each Order Form, and all claims and
controversies arising hereunder and thereunder will be governed by and
construed in accordance with the internal laws of the State of New York in the
United States, without regard to any laws, treaties, or conflicts of laws
principles that would apply the law of any other jurisdiction and without
regard to the United Nations Convention on the International Sale of Goods.
10.4
Dispute Resolution. If there is any dispute between
the Parties arising out of this Agreement or the subject matter hereof (a “Dispute”),
then authorized representatives of each Party will negotiate in good faith to
resolve the Dispute prior to commencing any action against the other. If such
representatives cannot resolve the Dispute after 30 days of good faith
negotiations
or if a Party fails to participate in good faith efforts to resolve the Dispute, then the Dispute
shall be determined by binding individual arbitration in New York County, New
York, United States. The arbitration shall be conducted in accordance with the
Commercial Arbitration Rules of the American Arbitration Association (“AAA”) in effect at the time of the
Dispute, subject to any modifications contained in this Agreement. The Dispute
shall be determined by binding individual arbitration before one arbitrator.
The award shall be in writing and include the findings of fact and conclusions
of law upon which it is based. Unless the Parties agree otherwise, discovery
will be limited to an exchange of directly relevant documents. Depositions will
not be taken except as needed in lieu of a live appearance or upon mutual
agreement of the parties. The arbitrator shall resolve any discovery disputes.
The arbitrator and counsel of record will have the power of subpoena process as
provided by law. The Parties knowingly and voluntarily waive their rights to
have any Dispute tried and adjudicated by a judge or a jury. The arbitration
shall be governed by the substantive laws of the State of New York, without
regard to conflicts-of-law rules, and by the arbitration law of the Federal
Arbitration Act (Title 9, U.S. Code). Judgment upon the award rendered may be
entered in any court having jurisdiction. Notwithstanding the foregoing, upon
the application by either Party to a court for an order confirming, modifying
or vacating the award, the court shall have the power to review whether, as a
matter of law based on the findings of fact determined by the arbitrator(s),
the award should be confirmed, modified or vacated in order to correct any
errors of law made by the arbitrator(s). In order to effectuate such judicial
review limited to issues of law, the Parties agree (and shall stipulate to the
court) that the findings of fact made by the arbitrator(s) shall be final and
binding on the Parties and shall serve as the facts to be submitted to and
relied upon by the court in determining the extent to which the award should be
confirmed, modified or vacated. Except as otherwise required by law, the
Parties and the arbitrator(s) agree to keep confidential and not disclose to
third parties any information or documents obtained in connection with the arbitration
process, including the resolution of the Dispute. The prevailing party shall be
entitled to be awarded costs, including reasonable attorney’s fees, paid or
incurred in successfully compelling and/or participating in such arbitration
and/or successfully defending or enforcing the award. Customer may bring claims
only on its own behalf and agrees that it shall not participate in any class
action, mass action or class-wide arbitration or any consolidated claims
arising from or related to this Agreement or which name InterPayments as a
party to the proceeding. Any provision of applicable law notwithstanding, the
arbitrator will not have authority to award damages, remedies or awards that
conflict with this Agreement.
The Parties agree that
the dispute resolution procedures and monetary damages may be inadequate to
address the breach or threatened breach of Section 2.4 and Section 6 and the
aggrieved party shall, be entitled to seek equitable relief, including without
limitation, injunctive relief and specific performance, in addition to any
other remedies provided hereunder or available at law and without the
requirement to post bond.
10.5
Publicity. Neither Party shall issue any public statement regarding
this Agreement or the subject matter hereof without the other Party’s prior
written consent. Unless a Party has specifically notified the other Party to
the contrary in writing, either Party may, during the Term, use the name or
logo of the other Party or its Affiliates to identify such other party as a
customer or vendor (as the case may be) in accordance with that Party’s
provided marketing guidelines.
10.6
Other Technology or Services. Customer acknowledges and agrees that Customer has not
relied on any future availability of any service offerings, technology, or
additional, enhanced or updated features or functionality, and that the
Services do not include any audit support (unless otherwise specified in an Order
Form).
10.7
Entire Agreement. This Agreement along
with any Order Form(s) executed in connection with this Agreement comprise the
entire agreement of the Parties concerning the subject matter hereof and
supersede all prior or contemporaneous agreements and understandings with
respect to said subject matter. No terms of any request for proposal, purchase
order, or other similar document provided by Customer will modify this
Agreement, regardless of any failure of InterPayments to object to such terms. In
the event of a direct and otherwise irreconcilable conflict between this
Agreement and any applicable Order Form, the Order Form shall govern.
10.8
Third Party
Beneficiaries.
This Agreement is for the sole benefit of the Parties and their respective
successors and permitted assigns and nothing herein, express or implied, is
intended to or will confer upon any other Party any legal or equitable right,
benefit, or remedy of any nature whatsoever under or by reason of this
Agreement.
10.9
Waivers; Amendments. All waivers of
rights arising under this Agreement must be made in writing by the Party
waiving rights. InterPayments reserves the right to update this Agreement at
any time. InterPayments will update the Last Updated Date at the top of this
page if InterPayments update this Agreement. If a change to this Agreement
materially modifies Customer’s rights or obligations, then InterPayments may
require that Customer accept the modified Agreement in order to continue to use
the Services.
10.10 Notices. Any notice provided under this Agreement
will be effective if it is sent via electronic mail to the InterPayments at support@interpayments.com or to Customer at the
email address set forth in the applicable Order Form. Either Party may change
its address for receipt of notice by notice to the other Party in accordance
with this Section. Notices are deemed given on the same day an electronic mail
is sent to the recipient.
10.11 Relationship of the Parties. The relationship
between the Parties is that of independent contractors. Nothing contained in
this Agreement will be construed as creating any agency, partnership, joint
venture or other form of joint enterprise, employment, or fiduciary
relationship between the Parties, and neither Party will have authority to
contract for or bind the other Party in any manner whatsoever. Customer is responsible for its own payments
and tax policies and reporting positions taken. Customer is responsible for
conducting its own due diligence and seeking the assistance of a qualified
legal, tax, or accounting professional.
10.12 Severability. If any provision in
this Agreement is held by a court of competent jurisdiction to be unenforceable,
then: (a) it will be severed from this Agreement; (b) the court of competent
jurisdiction will replace the severed provision with another provision that
most closely reflects the Parties’ original intent to the fullest extent
permitted by Applicable Law; and (c) this Agreement will remain in full force
and effect.