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our discretion. To the extent that there is any conflict between the Documentation
<br />and the terms of this Agreement, the terms of this Section 40 shall govern and
<br />control.
<br />40.4.3 Use Restrictions. You acknowledge that the Gateway Services and
<br />Documentation constitute our intellectual property, therefore, you shall not, and
<br />shall not cause or permit any third party to: (i) use the Gateway Services in any way,
<br />other than in accordance with this Agreement, the Documentation or as otherwise
<br />instructed by us in writing; (ii) use the Gateway Services or Documentation, either
<br />directly or indirectly, for benchmarking purposes or to develop any product or
<br />service that competes with the products and services provided under this Section
<br />40; (iii) disassemble, decompile, decrypt, extract, reverse engineer or modify the
<br />Gateway Services, or otherwise apply any procedure or process to the Gateway
<br />Services in order to ascertain, derive, and/or appropriate for any reason or purpose,
<br />the source code or source listings for the Gateway Services or any algorithm, process,
<br />procedure or other information contained in the Gateway Services, except as
<br />otherwise specifically authorized in accordance with this Section 40; (iv) provide
<br />the Gateway Services or Documentation to any third party, other than to your
<br />authorized employees and contractors who are subject to a written confidentiality
<br />agreement, the terms of which are no less restrictive than the confidentiality
<br />provisions of this Section 40; (v) use, modify, adapt, reformat, copy or reproduce
<br />the Gateway Services or Documentation or any portion thereof, except as is
<br />incidental to the purposes of this Section 40, or for archival purposes (any copies
<br />made hereunder shall contain all appropriate proprietary notices); (vi) rent, lease,
<br />upload, assign, sublicense, transfer, distribute, allow access to, or timeshare the
<br />Gateway Services or Documentation; (vii) circumvent or attempt to circumvent any
<br />applicable security measures of the Gateway Services; (viii) attempt to access or
<br />actually access portions of the Platform or Gateway Services not authorized for your
<br />use; and/or (ix) use the Gateway Services in any unlawful manner or for any
<br />unlawful purpose.
<br />40.4.4 Updates. From time to time we may, at our discretion, release Updates or
<br />modify the Software. In the event we notify you of any such Update, you shall
<br />integrate and install such Update into Your Systems within thirty (30) days of your
<br />receipt of such notice. You acknowledge that failure to install Updates in a timely
<br />fashion may impair the functionality of the Platform or any of our Gateway Services
<br />provided hereunder. We will have no liability for your failure to properly install the
<br />most current version of the Software or any Update, and we will have no obligation
<br />to provide support or Gateway Services for any outdated versions.
<br />40.4.5 Licensors. The licenses granted hereunder may be subject to other licenses
<br />currently held by us or our subcontractors. Should any license held by us to certain
<br />technology or software be terminated or suspended, the corresponding license(s)
<br />granted to you hereunder may also be terminated or suspended in our sole and
<br />absolute discretion. You acknowledge and agree to such potential termination or
<br />suspension and hereby waive any and all damages, whether actual, incidental or
<br />consequential resulting therefrom.
<br />40.4.6 Export Compliance. You agree not to export or re-export the Software or
<br />any underlying information or technology except in full compliance with all
<br />applicable laws and regulations. In particular, but without limitation, none of the
<br />Software or underlying information or technology may be downloaded or otherwise
<br />exported or re-exported (i) to any country to which the United States has embargoed
<br />goods (or any national or resident thereof); (0) to anyone on the United States
<br />Treasury Department's list of Specially Designated Nationals or the United States
<br />Commerce Department's Table of Deny Orders; or (iii) in any manner not in full
<br />compliance with the requirements of the United States Bureau of Industry and
<br />Security and all applicable Export Administration Regulations. If you have rightfully
<br />obtained the Software outside of the United States, you agree not to re-export the
<br />Software except as permitted by the laws and regulations of the United States and the
<br />laws and regulations of the jurisdiction in which you obtained the Software. You
<br />warrant that you are not located in, under the control of, or a national or resident of
<br />any such country or on any such list.
<br />40.4.7 Federal Acquisition Regulations. If you are acquiring the Software on
<br />behalf of any part of the United States Government (the "Government"), the
<br />following provisions apply: Any use, duplication, or disclosure by the Government
<br />is subject to the restrictions set forth in subparagraphs (a) through (d) of the
<br />Commercial Computer Software -Restricted Rights clause at FAR 52.227-19 when
<br />applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and
<br />Computer Software clause at DFARS 252.227-7013, and in similar clauses in the
<br />NASA FAR Supplement. We are the contractor/manufacturer, with the address set
<br />forth below. Any use, modification, reproduction, release, performance, display or
<br />disclosure of the Software and/or the accompanying documentation by the
<br />Government or any of its agencies shall be governed solely by the terms of this
<br />Section and shall be prohibited except to the extent expressly permitted by the terms
<br />of this Section 40.
<br />40.4.8 Return/Destruction. Upon termination or expiration of this Agreement,
<br />all licenses granted hereunder shall immediately terminate, and within five (5) days
<br />thereof, you shall either return to us or destroy the Software and the Documentation,
<br />and shall so certify to us m writing.
<br />40.4.9 No other Licenses. Except as expressly provided above, no license for any
<br />patents, copyrights, trademarks, trade secrets or any other Intellectual Property
<br />Rights, express or implied, are granted hereunder.
<br />40.4.10 Use of Transaction Data. As permitted by applicable law and regula-
<br />tions, we reserve the right to copy and distribute to third parties, any information
<br />associated with your use of the Gateway Services or your activities on the Platform.
<br />40.5 Platform Matters.
<br />40.5.1 Integration with Your Systems. While we provide Software to you, you
<br />acknowledge that the Software itself is insufficient to allow Your Systems to function
<br />with the Platform. Programming, development and maintenance of Your Systems
<br />and their functionality are your sole responsibility. You have the sole responsibility
<br />to select and employ any competent programming agent(s) to accomplish the
<br />programming required to make Your Systems function correctly with the Platform
<br />and the payment services contemplated hereunder ("Integration"). You shall be
<br />responsible for all technical support for Your Systems and Integration related issues.
<br />You agree that you will use commercially reasonable efforts to complete the
<br />Integration as soon as possible. You will be responsible for all of your own
<br />development and implementation costs associated with such Integration.
<br />Notwithstanding any other provision of this Section 40, you acknowledge that unless
<br />and until you complete the Integration, no Gateway Services need be provided by us
<br />to you pursuant to Section, except as otherwise specifically provided in Section
<br />40.5.2 below. In addition, you acknowledge and agree that, even if you have
<br />completed Integration, if you have not entered into a valid merchant processing
<br />agreement with an authorized bank card processor, you cannot receive the Gateway
<br />Services through the Platform.
<br />40.5.2 Set -Up Assistance Services. Subject to Section 40.5.1 above, upon your
<br />request to us, and upon payment of any applicable fees, we will provide you with set-
<br />up services to assist with the Integration.
<br />40.5.3 Shut Downs. We reserve the right, from time to time, without prior notice,
<br />to shut down and restart the Platform for maintenance and/or software upgrades for
<br />reasonable time periods of one minute or more.
<br />40.5.4 Orders by Customers. You are solely responsible for accepting,
<br />processing, and filling any orders for purchases by your Customers, and for handling
<br />any inquiries arising therefrom. You shall use the highest standards in the industry
<br />in responding to complaints by Customers. We are not responsible or liable for any
<br />unauthorized access to your data or Your Systems by any means or device.
<br />40.6 Security of Information. We will use commercially reasonable efforts to maintain
<br />the security of the Gateway Services and the Platform. You will use commercially
<br />reasonable efforts to maintain the security of Your Systems. Such steps by you will be
<br />taken at your sole cost and expense, and shall include, without limitation: (i)
<br />creating firewalls to protect against unauthorized access to Your Systems by your
<br />employees, contractors, Customers, or by any other person; and (0) implementing
<br />reasonable protective techniques suggested by us. You further agree that you will be
<br />bound by and comply with all of our and all Card Organization security rules and
<br />regulations as they now exist or as each may be amended or supplemented from
<br />time to time. Notwithstanding the foregoing, the parties recognize that there is no
<br />guarantee or absolute security of information that is communicated over the
<br />internet.
<br />40.7 Privacy. We have adopted online Privacy Statement(s) for the Gateway Services to
<br />inform individuals as to online collection and use of personal information. You agree
<br />that, during the term of this Agreement, you will adequately communicate and
<br />comply with an appropriate privacy policy explaining your online collection and
<br />use of the personal information of your Customers. Unless required by law, Card
<br />Organization Rules, or done pursuant to this Agreement, you shall not, under any
<br />circumstances, sell, purchase, provide, or otherwise disclose any customer's account
<br />information, transaction information, or other personal information to any third
<br />party. You shall store all data securely. We may advise potential users of the services
<br />that we have a relationship with you.
<br />40.8 Audit Rights. Upon notice to you, we may audit your usage, records and security
<br />of the Gateway Services, your Customer's payment processing information, and the
<br />services provided hereunder to ensure (i) that you are using the Gateway Services in
<br />full compliance with the provisions of this Section 40; (0) that all applicable fees
<br />have been paid; (iii) that you are adhering to your privacy policy; and; (iv) that you
<br />are in full compliance with all applicable laws, regulations and rules (including but
<br />not limited to Card Organization Rules). Any such audit shall be conducted during
<br />regular business hours at your offices and shall not interfere unreasonably with your
<br />business.
<br />40.9 Indemnification. You shall indemnify, defend, and hold us, our subsidiaries and
<br />affiliates and our and their officers, directors, employees, shareholders, agents and
<br />attorneys from any Claim(s) arising from the conduct of your business, any
<br />Transactions submitted through the Platform hereunder for payment processing,
<br />any false or inaccurate representation made by you or the negligence, fraud,
<br />dishonesty or willful behavior of any of your employees or agents, or from your
<br />failure to strictly comply, in whole or in part, with any: (i) terms and conditions
<br />pursuant to this Agreement and any addenda hereto or Documentation; or (0)
<br />applicable law, regulations or rules. Upon written notice from us to you, you shall
<br />immediately undertake the defense of such Claim by representatives of your own
<br />choosing, subject to our reasonable approval.
<br />TD2008(ia)
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<br />August 2017 Manual T&C - CAP # 40233
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