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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 />If you elect to utilize the First Data Clover Insights- Solution ("Clover Insights")
<br />the 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. Definitions. 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, smarlphone 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
<br />of the Clover Insights software applications and communications you receive from
<br />the 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 or applications
<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 />CardCo2305
<br />A TRUE COPY
<br />CERTIFICATION ON LAST PAGE
<br />J.R. SMITH, CLERK
<br />exclusive property of First Data or its affiliates, vendors, or third party 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) excel 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, (j) 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 (nay 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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