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39.13. Subcontractors. Processor may subcontract all or part of the Services using
<br />a variety of providers globally, but, notwithstanding any such subcontract, Processor
<br />shall remain fully responsible for performance of the Services, including ensuring
<br />the compliance of subcontractors with the terms of this Agreement applicable to
<br />such subcontractors.
<br />39.14. Survival. Upon termination or expiration of this Section 39 or the Agreement,
<br />a party's obligations shall cease except for those remaining or required to be
<br />performed following such termination. For the avoidance of doubt, the parties agree
<br />that those provisions of this Section that logically should survive its termination or
<br />expiration in order to accomplish its fundamental purposes will do so. All
<br />representations, warranties, indemnities and covenants made herein shall survive
<br />the termination of this Section and shall remain enforceable after such termination.
<br />40. Special Provisions Regarding Clover Insights Service
<br />'Terms and Conditions
<br />If you elect to utilize the First Data Clover Insights Solution ("Clover Insights") the
<br />terms and condition in this Section 36 shall apply ("Clover Insights Terms and
<br />Conditions"); and if you were granted a First Data Clover Insights Temporary
<br />Demonstration License, an election for Services under this Section 40 shall serve to
<br />supersede it. Clover Insights is provided to you by Processor and not Bank. Bank is
<br />not liable to you in any way with respect to Clover Insights. Clover Insights,
<br />transactions processed, and other matters contemplated under Section 40 are
<br />subject to the terms and conditions of the Agreement, as applicable, except to the
<br />extent the terms directly conflict with the Clover Insights Terms and Conditions, in
<br />which case the Clover Insights Terms and Conditions will control.
<br />40.1. Definition's. Capitalized terms used herein shall have the' meanings given to
<br />such terms as set forth in Section 40.1 or as defined elsewhere in this Section 40, or
<br />the Agreement.
<br />"Customer" means a Person who makes a purchase of goods or services from
<br />you, the transaction detail of which is utilized in Clover Insights. '
<br />"Customer Information" means information about your Customers (e.g., name,
<br />mailing address, card account number, e-mail address, telephone number) obtained
<br />in connection with your use of the Services and may be utilized in Clover Insights.
<br />"Data" means transaction data that may include processing data from First Data
<br />Merchant Services LLC's credit and debit information warehouse and other
<br />available sources that First Data Merchant Services LLC owns or has a contractual
<br />or other right to use in Clover Insights.
<br />"Device" means a tablet, computer, smartphone or other mobile device, or other
<br />device that you use to access the Clover Insights website to receive or to which you
<br />receive communications from Clover Insights.
<br />"First Data" means First Data Corporation, which is the parent company of First
<br />Data Merchant Services LLC.
<br />"First Data Clover Insights Marks" means the trademarks or service marks
<br />related to Clover Insights and sub -licensed to you by Processor.
<br />"First Data Clover Insights Solution" or "Clover Insights Solution" means the
<br />website or the application associated with Clover Insights, the object code version of
<br />the Clover Insights software applications and communications you receive from the
<br />applications. Among other things, Clover Insights allows merchants to track and
<br />visualize information regarding their own revenue, ticket size, and Customers
<br />contained in the Data and other third party data sources. Clover Insights may also
<br />permit a merchant to compare its performance to groups of similar businesses
<br />within their industry and /or certain geographic areas using the Data and other third
<br />party data sources, subject to certain limitations. The features and functionality of
<br />Clover Insights may be modified from time to time by First Data or its third party
<br />provider(s). For the avoidance of doubt, the term "software" in this definition does
<br />not include any software that may be obtained by you separately from Clover
<br />Insights (e.g., any applications downloaded by you). The First Data Clover Insights
<br />Solution is. deemed part of the "Services," as defined in and provided under the .
<br />Agreement.
<br />"Clover Insights Solution Fees" means the fees charged for your use of the First
<br />Data Clover Insights Solution, which includes additional fees for multiple locations.
<br />"Third . Party Services" are the services, products, promotions orapplications
<br />provided to you by or through someone other than Processor.,
<br />"User Documentation means that documentation regarding the operation,
<br />guidelines and features and functionality of Clover Insights that is made available to
<br />you from - time to time at the Website, by internet. link or otherwise. User
<br />Documentation may be modified from time to time by First Data or its third party
<br />provider(s).
<br />40.2. License Grant. Subject to the Clover Insights Terms and Conditions in this
<br />Section 40, Processor grants you a personal, limited, non-exclusive, revocable, non-
<br />transferable sub -license, without the right to further sub -license or assign in any
<br />way, to electronically access and use, solely in the United States, Clover Insights to
<br />manage your establishment(s) and analyze associated point of sale activities within
<br />the United States. For purposes of this Section 40, "United States' does not include
<br />U.S. Territories or possessions. Clover Insights is for your internal business use
<br />only. This Section 40 does not grant you any rights to First Data Clover Insights
<br />Marks. Except for the license expressly granted herein, all intellectual property and
<br />proprietary rights in or related to Clover Insights and First Data Clover Insights
<br />Marks are and will remain the sole and
<br />A TRUE COPY
<br />CERTIFICATION ON LAST PAGE
<br />exclusive property of First Data or its affiliateJ, Rr@0AT0 t LdgR1I� provider(s) (as
<br />applicable), and any and all right, title and interest associated with Clover Insights
<br />not expressly granted in this Section 40 is deemed withheld.
<br />40.3. Restrictions.
<br />40.3.1. You may not, nor may you permit any third party, other than employees and
<br />agents with a business need, to do any of the following: (a) access or attempt to
<br />access Clover Insights (or any part) that is not expressly made available for public
<br />use; (b) decompile, disassemble, reverse engineer, or otherwise attempt to
<br />reconstruct or discover by any means any source code or any underlying data,
<br />ideas or algorithms of Clover Insights (or any part), except to the extent that such
<br />restriction is expressly prohibited by law; (c) modify, translate, or alter in any
<br />manner, Clover Insights (or any part), or First Data Clover Insights Marks; (d) create
<br />derivative works of or based on Clover Insights (or any part) or Clover Insights
<br />Marks; (e) except for backup and archival purposes, directly or indirectly copy
<br />Clover Insights (or any part), except screen shots may be copied and retained solely
<br />for internal business purposes; (f) republish, upload, post, transmit, disclose, or
<br />distribute (in any format) Clover Insights (or any part) excet as expressly permitted
<br />herein; (g) access or use (in any format) Clover Insights (or any part) through any
<br />time-sharing service, service bureau, network, consortium, or other means; (h) rent,
<br />lease, sell, sublicense, assign, or otherwise transfer your license rights to any third
<br />party, whether by operation of law or otherwise; (i) use or ship Clover Insights (or
<br />any part) outside of the United States, or access Clover Insights (or any part) from
<br />outside the United States, without in any case obtaining our advance written
<br />consent; Q) remove, relocate, or otherwise alter any proprietary rights notices from
<br />Clover Insights (or any part), or First Data Clover Insights Marks; (k) perform or
<br />attempt to perform any actions that would interfere with the proper working of Clover
<br />Insights, prevent access to or use of Clover Insights by other users, or in our
<br />reasonable judgment impose an unreasonable or disproportionately large load on
<br />Clover Insights' infrastructure, network capability or bandwidth; or (1) use Clover
<br />Insights (or any part) except as permitted in Section 40.2.
<br />40.3.2. You shall not take any action inconsistent with the stated title and ownership
<br />in Section 40.2. You will not file any action in any forum that challenges the
<br />ownership of any part of Clover Insights, any related software, materials or User
<br />Documentation. Failure to comply with this provision will constitute a material breach
<br />of this Agreement and may restrict Processor's ability to sublicense Clover Insights
<br />to you. Processor has the right to immediately terminate Services under this Section
<br />40, and First Data has the right to immediately terminate your access to and use of
<br />Clover Insights in the event of a challenge by you.
<br />40.4. Clover Insights Limitations and Requirements.
<br />40.4.1. You may access Clover Insights through your Device using a wired
<br />(ethernet) or wireless (wifi or cellular) connection to the Internet. You are solely
<br />responsible for the payment of any fees that may be imposed by your Intemet/data
<br />provider. Your use of Clover Insights may be subject to: (a) the terms of your
<br />agreements with your Internet / data provider; and (b) the availability or uptime of
<br />the services provided by your Internet/data provider.
<br />40.4.2. You may use Clover Insights to conduct analysis of the Data and third party
<br />data made available through Clover Insights application and/or other tools made
<br />available at the website or in the application.
<br />40.4.3. First Data may alter which Devices and browsers are approved as
<br />compatible with Clover Insights in its discretion from time -to -time.
<br />40.4.4. First Data may perform maintenance on Clover Insights from time to time
<br />which may result in service interruptions, delays, or errors. Neither First Data nor its
<br />affiliates, vendors, or third party provider(s), will be liable for any such interruptions,
<br />delays, errors, or bugs. You agree that First Data or its affiliates, vendors, or third
<br />party provider(s) may contact you in order to assist you with Clover Insights and
<br />obtain information needed to identify and fix any errors.
<br />40.4.5. You shall at all times comply with the User Documentation,
<br />40.4.6. You shall comply with the following requirements in connection with your use
<br />of Clover Insights:
<br />40.4.6.1. In the event you are able to discern any information about a particular
<br />entity or individual from the information available from Clover Insights, either alone
<br />or with other information in your possession, you understand and acknowledge that
<br />the information may be subject to certain privacy, marketing, insider trading, or other
<br />applicable laws and you will limit your use thereof in accordance with all applicable
<br />laws.
<br />40.4.6.2. With respect to each Customer who desires to receive marketing material .
<br />or other communications from you via text message or email, such Customer must
<br />check the appropriate consent or the consent must be provided in writing; you are
<br />NOT permitted to add or modify a Customer's consent indication on his behalf.
<br />40.4.6.3. You (or your agents acting on your behalf) may only send marketing
<br />materials or other communications to the Customer's provided phone number, street
<br />address, and/or email address if the Customer has specifically consented in writing
<br />executed by the Customer.
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