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16.2 In the course of providing Services, we may collect information relating to activities
<br />on your network, including network configuration, TCP/IP packet headers and
<br />contents, log files, malicious codes, and Trojan horses. We retain the right to use
<br />this information or aggregations of this information, in addition to the Transaction
<br />Data described above, for any reasonable purpose.
<br />16.3 You agree that we may obtain relevant information from any applicable telecom-
<br />munications provider you utilize, as necessary to investigate any allegation of fraud,
<br />suspected fraud or other actual or alleged wrongful act by you in connection with
<br />the Services.
<br />17. INTELLECTUAL PROPERTY RIGHTS
<br />17.1 All right, title, and interest in and to all confidential information and intellectual
<br />property related to the Services (including the Marks, all Software, the content of any
<br />materials, web screens, layouts, processing techniques, procedures, algorithms, and
<br />methods and any updates, changes, alterations, or modifications to or derivative
<br />works from such intellectual property), owned, developed or licensed by us prior to,
<br />during the term of, or after this Agreement, or employed by us in connection with
<br />the Services, shall be and remain, as among the parties, our or our affiliates', our
<br />vendors' or our licensors' (as applicable) sole and exclusive property and all right,
<br />title and interest associated with the Services, Equipment and Software not expressly
<br />granted by us in this Agreement are deemed withheld. You may not use our Marks
<br />or those related to the Services in any manner, including in any advertisements,
<br />displays, or press releases, without our prior written consent.
<br />17.2 You may not, nor may you permit any third party to do any of the following: (a)
<br />decompile, disassemble, reverse engineer, or otherwise attempt to reconstruct or
<br />discover by any means any source code, underlying ideas or algorithms of the
<br />Service, Software or Equipment (or any part), except to the extent that such
<br />restriction is expressly prohibited by law; (b) modify, translate, or alter in any
<br />manner, the Service, Software or Equipment (or any part) or our Marks; (c) create
<br />derivative works of or based on the Service (or any part), Software or our Marks;
<br />(d) except for backup and archival purposes, directly or indirectly copy the Service
<br />or any Software (or any part); (e) republish, upload, post, transmit, disclose, or
<br />distribute (in any format) the Service or Software (or any part) except as permitted
<br />in this Agreement; or (f) remove, relocate, or otherwise alter any proprietary rights
<br />notices from the Service, Software or documentation (or any part) or our Marks.
<br />17.3 If we provide you with copies of or access to any Software or documentation, unless
<br />otherwise expressly stated in writing, that Software and documentation is provided
<br />on a personal, non-exclusive, non -transferable, non -assignable, revocable limited
<br />license for the period of your subscription to the applicable Service and solely for
<br />you to access and use the Software and documentation to receive the relevant
<br />Services for its intended purpose on systems owned or licensed by you. Software
<br />can only be used with certain computer operating systems and it is your
<br />responsibility to ensure that you have the appropriate hardware and software to use
<br />the Software.
<br />17.4 You shall not take any action inconsistent with the stated title and ownership in this
<br />Section 17. You will not file any action, in any forum that challenges the ownership
<br />of any part of the Service or any Software, materials or documentation. Failure to
<br />comply with this provision will constitute a material breach of this Agreement. We
<br />have the right to immediately terminate your access to and use of the Service in the
<br />event of a challenge by you.
<br />I8. ASSIGNMENT
<br />18.1 Any attempt to transfer or assign this Agreement in whole or part, or rent, lease,
<br />sell, sublicense or otherwise transfer any licensed rights, without our prior written
<br />consent, including by operation of law, transfer of voting control of you or your
<br />parent or otherwise, is prohibited and voidable by us and, in such event we may:
<br />(a) suspend Services at any time and without notice, (b) hold you and your
<br />guarantors liable for all obligations incurred by such purchaser or transferee, and
<br />(c) offset funding and obligations incurred on your accounts without regard to
<br />whether such funding or obligations relate to activities of you or of such purchaser
<br />or transferee.
<br />18.2 You shall not make an assignment (or provide a security interest) or encumber any
<br />of your rights to any payment, receivable or other amount due to you pursuant to
<br />this Agreement or otherwise covered by this agreement without our prior written
<br />consent. Failure to obtain our consent shall be deemed to be a material breach of this
<br />Agreement, not subject to cure. Any permitted assignee or successor entity to you
<br />must provide such additional information and execute such additional documen-
<br />tation or take any further actions as we may request in order to ensure continued
<br />performance of services by us under this Agreement. If you breach the forgoing
<br />covenant then we may, at our option, elect to: (a) refuse to acknowledge such
<br />assignment unless accompanied by an authorization to both initiate debits or credits
<br />to the bank account of the assignee; (b) terminate this Agreement immediately; or
<br />(c) charge for any transfers that we are called upon to make manually to fulfill such
<br />an assignment at the rate of $100 per transfer.
<br />18.3 Subject to Card Organization Rules, and without providing notice to you or
<br />obtaining your consent, we may assign or transfer this Agreement and our rights,
<br />duties and obligations under this Agreement and may delegate or subcontract our
<br />rights, duties and obligations, in whole or in part, to any Person.
<br />18.4 If this Agreement is assigned with our permission or by operation of law, the
<br />restriction against assignment shall continue to apply to the assignee, who will not
<br />be authorized to further assign this Agreement except as described in this Section 18.
<br />I9. TERM; EVENTS OF DEFAULT
<br />19.1 This Agreement becomes effective only when your Application is approved by Bank.
<br />We reserve the right to immediately suspend or terminate your account and this
<br />Agreement if you fail to meet our policies even if your account has been activated to
<br />submit transactions prior to your approval by us. This Agreement will continue in
<br />full force and effect until it is terminated by Merchant or Bank in Accordance with
<br />the terms of this Agreement.
<br />19.2 The initial term of this Agreement is three years from the date of your approval by
<br />Bank (the Initial Term). After the Initial Term, subject to Section 19.3, this
<br />Agreement shall automatically extend for additional period of three years each (each
<br />an Extended Term).
<br />19.3 A party may give written notice to the other party, not later than 60 days before the
<br />end of the Initial Term or the relevant Extended Term, to terminate this Agreement
<br />at the end of the Initial Term or the relevant Extended Term, as the case may be.
<br />Should you fail to notify us in writing that you wish to terminate this Agreement
<br />under this Section 19.3 you agree that you will continue to be charged certain fees
<br />pursuant to this Agreement even if you are not using your account. If you have an
<br />equipment lease termination of this Agreement does not terminate that equipment
<br />lease.
<br />19.4 If you terminate this agreement before the end of the Initial Term or any Extended
<br />Term, you will be obligated to pay Bank all monthly fees, whether for maintenance,
<br />products, equipment, and an Early Termination Fee of $350.00. The Early
<br />Termination fee will be automatically deducted from your Settlement Account when
<br />your Merchant Account is closed.
<br />193 We may terminate this Agreement or suspend any or all of the Services immediately
<br />and without notice in the following circumstances (each, a "Default"):
<br />a) we, in our sole discretion, are not satisfied with your financial condition or
<br />believe that you may not be able to continue to satisfy your obligations under
<br />this Agreement;
<br />b) any assignment or transfer of voting control of you or your parent or sale of all
<br />or a substantial portion of your assets; c) irregular Card sales by you, excessive
<br />Chargebacks, noncompliance with any applicable data security standards, as
<br />determined by Bank, or any Card Organization, or any other Person, or an actual
<br />or suspected data security breach, or any other circumstances which, in our sole
<br />discretion, may increase our exposure for your Chargebacks or otherwise present
<br />a financial or security risk to us;
<br />d) you breach any of your representations, warranties or covenants in this
<br />Agreement or you default in any material respect in the performance or
<br />observance of this Agreement or in any other agreement with us or any of our
<br />respective Affiliates, including the establishment or maintenance of a Reserve or
<br />any failure to notify us of any change to the information in your merchant profile;
<br />e) your actions come under investigation by any Card Organization resulting in the
<br />Card Organization directing us to terminate or suspend our Services or
<br />Agreement with you;
<br />f) you engage in conduct that creates or may create harm or loss to the goodwill of
<br />any Card Organization, the Bank, Processor, or their respective Affiliates or
<br />agents;
<br />g) you or any of your affiliates are listed in one or more databases of terminated or
<br />high risk parties maintained by any Card Organization;
<br />h) you are subject to any voluntary or involuntary bankruptcy or insolvency
<br />petition or proceeding, and such proceeding shall continue undismissed or
<br />unstayed for a period of 60 consecutive days; or
<br />i) you violate any applicable law or Card Organization Rule or we reasonably
<br />believe that termination of this Agreement or suspension of Services is necessary
<br />to comply with any law, including the rules and regulations promulgated by the
<br />Office of Foreign Assets Control of the U.S. Department of the Treasury
<br />19.6 We may suspend or terminate this Agreement or our provision of one or more
<br />Services to you immediately without notice and without penalty if: (a) the Service is
<br />generally discontinued; (b) our arrangement with the Card Organization or third
<br />party vendor in relation to the Service expires or terminates; (c) we are directed to
<br />end the service to you by any Card Organization; (d) we are prevented from
<br />providing the Service by any law, regulation, requirement, ruling or notice issued in
<br />any form whatsoever by judicial or governmental authority; (e) in the event that an
<br />Adverse Development arises or (f) if in our sole judgement, for any other reason our
<br />continued performance under this Agreement is impossible or impracticable under
<br />the circumstances.
<br />19.7 We may also suspend Services if, in our sole judgement, it is necessary to: (a) prevent
<br />damages to, or degradation of, our or a third party vendor or network's network
<br />integrity that may be caused by a third party; (b) comply with any law, regulation,
<br />court order or other governmental request which requires immediate action; or (c)
<br />otherwise protect us or a third party vendor from potential legal liability. To the
<br />extent practicable, we shall give notice to you before suspending any Services in
<br />these circumstances. Availability of Services may vary due to events beyond the
<br />TD2008(ia) 7
<br />August 2017 Manual T&C - CAP # 40233
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