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under this OptBlue Schedule. The arbitrator has no power or authority to alter
<br />the Agreement or any of its separate provisions, including this Section 39.
<br />(g) Split Proceedings for Equitable Relief. You, we, or American Express may
<br />seek equitable relief in aid of arbitration prior to arbitration on the merits if
<br />necessary to preserve the status quo pending completion of the arbitration. This
<br />Section 39 shall be enforced by any court of competent jurisdiction.
<br />(h) Small Claims. American Express will not elect arbitration for any Claim you
<br />properly file in a small claims court so long as the Claim seeks individual relief
<br />only and is pending only in that court.
<br />(i) Governing Law/Arbitration Procedures/Entry of Judgment. This Section
<br />39 is made pursuant to a transaction involving interstate commerce and is
<br />governed by the FAA. The arbitrator shall apply New York law and applicable
<br />statutes of limitations and honor claims of privilege recognized by law. The
<br />arbitrator shall apply the rules of the arbitration organization selected, as
<br />applicable to matters relating to evidence and discovery, not federal or any state
<br />rules of procedure or evidence, provided that any party may ask the arbitrator to
<br />expand discovery by making a written request, to which the other parties will
<br />have 15 days to respond before the arbitrator rules on the request. If your Claim
<br />is for $10,000 or less, you may choose whether the arbitration will be conducted
<br />solely based on documents submitted to the arbitrator, through a telephonic
<br />hearing, or by an in-person hearing under the rules of the selected arbitration
<br />organization. At the timely request of a party, the arbitrator will provide a written
<br />opinion explaining his/her award. The arbitrator's decision will be final and
<br />binding, except for any rights of appeal provided by the FAA. Judgment on an
<br />award rendered by the arbitrator may be entered in any state or federal court in
<br />the federal judicial district where your headquarters or your assets are located.
<br />(j) Confidentiality. The arbitration proceeding and all information submitted,
<br />relating to or presented in connection with or during the proceeding, shall be
<br />deemed confidential information not to be disclosed to any person not a party to
<br />the arbitration. All communications, whether written or oral, made in the course
<br />of or in connection with the Claim and its resolution, by or on behalf of any
<br />party or by the arbitrator or a mediator, including any arbitration award or
<br />judgment related thereto, are confidential and inadmissible for any purpose,
<br />including impeachment or estoppel, in any other litigation or proceeding;
<br />provided, however, that evidence shall not be rendered inadmissible or non -
<br />discoverable solely as a result of its use in the arbitration.
<br />(k) Costs of Arbitration Proceedings. You will be responsible for paying your
<br />share of any arbitration fees (including filing, administrative, hearing or other
<br />fees), but only up to the amount of the filing fees you would have incurred if
<br />you had brought a claim in court. American Express will be responsible for any
<br />additional arbitration fees. At your written request, American Express will
<br />consider in good faith making a temporary advance of your share of any
<br />arbitration fees, or paying for the reasonable fees of an expert appointed by the
<br />arbitrator for good cause.
<br />(1) Additional Arbitration Awards. If the arbitrator rules in your favor against
<br />American Express for an amount greater than any final settlement offer American
<br />Express made before arbitration, the arbitrator's award will include: (1) any
<br />money to which you are entitled as determined by the arbitrator, but in no case
<br />less than $5,000; and (2) any reasonable attorneys' fees, costs and expert and
<br />other witness fees incurred by you.
<br />Additional Provisions for AMEX Transactions - For merchants participating in the
<br />American Express OptBlue® Program, you should review the operating guide made
<br />available to you at www.americanexpress.com/merchantopguide.
<br />40. SPECIAL PROVISIONS REGARDING FIRST DATA
<br />PAYEEZY GATEWAYSM SERVICES
<br />If you elect to utilize the Payeezy Gateway Services ("Gateway Services"), the following
<br />additional terms and conditions of this Section 40 shall apply.
<br />The Gateway Services provided and other matters contemplated under this Section 40 are
<br />subject to the rest of this Agreement, as applicable, except to the extent the terms of this
<br />Section 40 directly conflict with another provision of this Agreement, in which case the
<br />terms of this Section 40 will control.
<br />40.1 Definitions. For purposes of this Section 40 only, the Capitalized terms used in
<br />this Section 40 shall have the meaning given as defined in this Section, and if not
<br />defined in this Section, as defined elsewhere in this Agreement.
<br />(a) Claim means any arbitration award, assessment, charge, citation, claim, damage,
<br />demand, directive, expense, fine, interest, joint or several liability, lawsuit or
<br />other litigation, notice, infringement or misappropriation of any Intellectual
<br />Property Right or violation of any law, and any consequential, indirect, special,
<br />incidental or punitive damages and any attomey's fees and expenses incurred in
<br />connection therewith. For purposes of the foregoing Claim definition, a Claim
<br />shall be considered to exist even though it may be conditional, contingent,
<br />indirect, potential, secondary, unaccrued, unasserted, unknown, unliquidated,
<br />or unmatured.
<br />(b) Confidential Information means the Gateway Services, Documentation,
<br />operational procedures, the terms and conditions of this Section 40 (including
<br />any schedule, exhibit or addendum), pricing or other proprietary business
<br />information, and any other information provided to you by us, whether or not
<br />such information is marked as confidential; provided, however, that Confidential
<br />Information will not include information that: (a) is or becomes generally known
<br />to the public through no fault of yours; (b) was lawfully obtained by you from a
<br />third party free of any obligation of confidentiality; (c) was already in your lawful
<br />possession prior to receipt thereof, directly or indirectly, from the disclosing
<br />party; (d) is independently developed by you without the use of the Confidential
<br />Information; (e) is disclosed with our express written permission; or (0 is
<br />disclosed pursuant to a lawful court or governmental order, provided you provide
<br />us with prompt prior written notice of any proceeding that may involve such an
<br />order, and an opportunity to contest any disclosure at such proceeding.
<br />(c) Customer means your customer who would like to provide payment for your
<br />goods or services.
<br />(d) Documentation means any and all manuals and other written materials in any
<br />form provided for use with the Software, as amended by us from time to time, the
<br />terms of which are incorporated in this Section 40 as if fully set forth herein.
<br />(e) Intellectual Property Rights means any and all patents, copyrights,
<br />trademarks, trade secrets. service marks, and any other intellectual property
<br />rights, and any applications for any of the foregoing, in all countries in the world.
<br />(f) Merchant Account shall mean an account set up for a merchant that requires
<br />a card processor, bank, merchant ID., terminal ID., merchant account number, or
<br />otherwise named unique merchant number. Multiple physical or virtual
<br />storefronts that process transactions under the same unique merchant number
<br />shall be deemed as one (1) Merchant Account.
<br />(g) Operational Procedures means our published policies and procedures
<br />contained in the various documents provided to you, as amended from time to
<br />time, concerning the Gateway Services provided pursuant to this Section, the
<br />terms of which are incorporated in this Section as if fully set forth herein.
<br />(f) Payeezy Gateway Services or Gateway Services means the payment
<br />processing services offered through the Platform (including, but, not limited to
<br />authorization of transactions, routing transactions to the appropriate payment
<br />processing network or third party service provider, transaction responses
<br />(approved, declined), and the detailed reporting of those transactions) and
<br />related Software, as applicable. The Gateway Services do not include alternative
<br />payment products or services that are supported by or may be accessed through
<br />the Platform and with respect to which you enter into an agreement: (i) with us
<br />(which agreement may consist of an amendment to this Agreement or specific
<br />terms in this Agreement expressly covering such alternative payment products or
<br />services) (such alternative payment products or services, "Separate Products"), or
<br />(ii) a third party service provider (e.g., PayPal) regarding your participation in
<br />such alternative payment products or services (together with Separate Products,
<br />the "Excluded Products").
<br />(h) Platform means our operated, or approved, electronic payment platform(s)
<br />and/or gateway(s) (also referred to as the "Payeezy Gateway") through which
<br />the payment services contemplated under this Section 40 are provided.
<br />(i) Software means all applications, protocols, software components and other
<br />interfaces and software provided by us to you pursuant to this Section 40, and
<br />any and all Updates.
<br />(1) Updates means an embodiment of the Software that provides enhancements
<br />and/or improvements.
<br />(k) Your Systems means any web site(s) or interface(s) to the Gateway Services
<br />that are operated or maintained by you or on your behalf through which
<br />transactions are submitted for processing, and all of your other associated
<br />systems.
<br />40.2 Fees. You shall pay us the fees for the Gateway Services as set forth on the
<br />Application. A separate account with us for the Gateway Services shall be required
<br />for each separate Merchant Account held by you.
<br />40.3 Term;Termination. The Gateway Services shall commence as of the effective date
<br />of this Agreement and shall remain in effect until terminated by either party as
<br />provided herein. Either party may terminate the Gateway Services s upon giving the
<br />other party at least thirty (30) days prior written notice. We may suspend or
<br />terminate your access to Gateway Services without prior notice, with or without
<br />cause. Regardless of the reason for termination, you shall be responsible for the
<br />payment of all fees due up to and including the effective date of termination.
<br />40.4 License Grant.
<br />40.4.1 License. Subject to the terms and conditions of this Agreement (including
<br />additional rights and licenses granted in the Documentation), we grant to you a non-
<br />sublicensable, royalty free, non-exclusive, nontransferable, revocable limited license
<br />to use the Gateway Services during the term of this Agreement for the sole and
<br />limited purpose of submitting payment transactions to us for processing and
<br />otherwise using Gateway Services as set forth herein. For clarity, all references to
<br />Gateway Services in this Agreement shall include the applicable Software.
<br />40.4.2 Documentation License. Subject to the terms and conditions of this
<br />Agreement, we grant to you, and you hereby accept, a royalty free, non-exclusive,
<br />non -transferable, revocable limited license, without right of sublicense, to use the
<br />Documentation during the term of this Agreement for the sole and limited purpose
<br />of supporting your use of the Gateway Services. You shall strictly follow all
<br />Documentation provided to you, as it may be amended from time to time by us, in
<br />TD2008(ia)
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<br />August 2017 Manual T&C - CAP # 40233
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