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40.16. Ideas. You may choose to, or First Data, its affiliates vendors, or third party
<br />provider(s) may invite you to, submit comments or ideas about Clover Insights,
<br />including without limitation, about how to improve Clover Insights ('Ideas") By
<br />submitting any Idea, you agree that (a) First Data expressly disclaims any
<br />confidentiality obligations or use restrictions, express or implied, with respect to any
<br />Idea, (b) your submission will be non -confidential, and (c) First Data is free to use
<br />and disclose any Idea on an unrestricted basis without notifying or compensating
<br />you and without you claiming any rights therein You release First Data, its affiliates,
<br />vendors, or third party provider(s) from all liability and obligations that may arise
<br />from the receipt, review use or disclosure of any portion of any Idea
<br />40.17. Third Party Beneficiaries. First Data, its affiliates, vendors, or third party
<br />provider(s) used in providing Clover Insights are intended third party beneficiaries of
<br />this Section 40 as applicable, and each of them may enforce its provisions as if it
<br />was a party hereto Except as expressly provided in this Section 40. nothing in this
<br />Section 40 is intended to confer upon any Persons any rights or remedies, and the
<br />parties do not intend for any Persons to be third -party beneficiaries of this Section
<br />40
<br />40.18. Limitation of Liability. The cumulative liability to you from First Data, its
<br />affiliates, vendors, and third party provider(s) for any and all claims arising out of or
<br />resulting from this Section 40 shall not exceed the total for the Clover Insights
<br />Solution Fees you paid to the Processor in the twelve months immediately
<br />preceding any claim
<br />• .;. .. .
<br />If you elect to use the Clover Service, the following additional terms and conditions
<br />of this Section 41 shall apply
<br />The Clover Service is provided to you by Processor and not Bank The Clover
<br />Service transactions processed, and other matters contemplated under this Section
<br />41 are subject to the terms and conditions of the Agreement, as applicable, except
<br />to the extent the terms of this Section 41 directly conflict with another provision of
<br />the Agreement, in which case the terms of this Section 41 will control; provided
<br />however, Bank is not a party to this Agreement insofar as it applies to the Clover
<br />Service, and you acknowledge that Bank is not liable to you in any way with respect
<br />to the Clover Service For the purposes of this Section, 41, the words `we." "our'
<br />and "us' refer only to the Processor and not the Bank.
<br />41.1. Definitions. Capitalized terms used herein shall have the meanings given to
<br />such terms as set forth in this Section 41 or as defined in the Glossary or elsewhere
<br />n this Agreement
<br />"Clover" means Clover Network, Inc
<br />"Clover Marks" means the trademarks or service marks of Clover, an affiliate of
<br />Processor
<br />"Clover Service" means the website associated with the Clover Service the object
<br />code version of Clover software applications (whether owned or licensed by Clover)
<br />resident ona Device at the time we provide you with the Device and the object code
<br />version of the software that enables the applications resident on a Device at the
<br />time of provisioning, and any related updates (including software maintenance or
<br />bug fixes) that are designed to assist with the management of your business and
<br />enable payment processing at the point of sale and any materials, documentation
<br />and derivative works released by Processor from time to time For the avoidance of
<br />doubt, the term software in the preceding sentence does not include any software
<br />that may be obtained by you separately from the Clover Service (e g , any
<br />applications downloaded by you through an application marketplace) The Clover
<br />Service is deemed part of the "Services," as defined in and provided under the
<br />Agreement.
<br />"Customer" means a Person who makes a purchase of goods or services from
<br />you, the transaction for which utilizes the Clover Service
<br />"Customer Information" means information about your Customers (e g . name,
<br />mailing address, e-mail address, telephone number) obtained in connection with
<br />your use of the Clover Service
<br />"Device" means a tablet. smartphone, or other mobile or fixed form factor identified
<br />by Processor from time to time as compatible with and capable of supporting the
<br />Clover Service
<br />"Third Party Services" are the services, products, promotions or applications
<br />provided by someone other than Processor
<br />41.2. License Grant. During the term of the Agreement, Processor grants you a
<br />personal, limited, non-exclusive, revocable, non -transferable license. without the
<br />right to sublicense or assign in any way. to electronically access and use the Clover
<br />Service solely in the United States to manage your establishment and conduct
<br />associated point of sale activities within the United States in accordance with the
<br />terms of this Section 41 For purposes of this Section 41 "United States does not
<br />include U S Territories or possessions The Clover Service is for your internal
<br />business use only This Section 41 does not grant you any rights to the Clover
<br />Marks All intellectual property and proprietary rights in or related to the Clover
<br />Service and the Clover Marks are and will remain our, our affiliates', our vendors', or
<br />our licensors(as applicable) sole and exclusive property, and any and all right, title
<br />and interest associated with the Clover Service not expressly granted by Processor
<br />in this Section 41 are deemed withheld
<br />41.3. Restrictions. You may not. nor may you permit any third party to do any of
<br />the following (a) access or attempt to access the Clover Service (or any part) that is
<br />not intended or made available for public use. (b) decompile, disassemble, reverse
<br />engineer, or otherwise attempt to reconstruct or discover by any means any source
<br />code, underlying
<br />A TRUE COPY
<br />ideas or algorithms of the Clover service or any pp �R Ib A�}lR,I ,tL41fc4GE
<br />restriction is expressly prohibited by law, (C) [alter in any
<br />manner, the Clover Service (or any part) or the Clover Marks: (d) create derivative
<br />works of or based on the Clover Service (or any part) or the Clover Marks, (e)
<br />except for backup and archival purposes. directly or indirectly copy the Clover
<br />Service (or any part), (f) republish, upload. post, transmit, disclose, or distribute (in
<br />any format) the Clover Service (or any part) except as permitted herein; (g) access
<br />or use (in any format) the Clover Service (or any part) through any time-sharing
<br />service, service bureau network, consortium, or other means; (h) rent. lease, sell,
<br />sublicense, assign, or otherwise transfer your license rights to any third party,
<br />whether by operation of law or otherwise (i) use or ship the Clover Service (or any
<br />part) outside of the United States, or access the Clover Service (or any part) from
<br />outside the United States, without in any case obtaining our advance written
<br />consent, 0) remove, relocate, or otherwise alter any proprietary rights notices from
<br />the Clover Service (or any part) or the Clover Marks. (k) perform or attempt to
<br />perform any actions that would interfere with the proper working of the Clover
<br />Service, prevent access to or use of the Clover Service by other users, or in our
<br />reasonable judgment impose an unreasonable or disproportionately large load on
<br />our infrastructure, network capability or bandwidth, or (I) use the Clover Service (or
<br />any part) except as permitted in subsection 41 2 above
<br />You shall not take any action inconsistent with the stated title and ownership in
<br />subsection 41 2 above You will not file any action, in any forum that challenges the
<br />ownership of any part of the Clover Service, any related software, materials or
<br />documentation Failure to comply with this provision will constitute a material breach
<br />of this Agreement We have the right to immediately terminate your access to and
<br />use of the Clover Service in the event of a challenge by you
<br />41.4. Clove rServiceLimitationsand Requirements.
<br />41.4.1. You may access the Clover Service 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 Internet/data
<br />provider Your use of the Clover Service may be subject to. (a) the terms of your
<br />agreements with your Internet/data provider: and (b) the availability or uptime of the
<br />services provided by your Internet/data provider
<br />41.4.2. You may use the Clover Service to conduct point of sale activities offline.
<br />transactions initiated offime will be queued and submitted for authorization when
<br />Internet connectivity to the Clover System is restored However, you assume all risk.
<br />responsibility and liability associated with any transaction that you choose to
<br />conduct while the Clover Service is used offline
<br />41.4.3. The Clover Service does not function with every mobile device Processor
<br />may alter which Devices are approved as compatible with the Clover Service in our
<br />discretion from time -to -time.
<br />41.4.4. We may perform maintenance on the Clover Service from time to time which
<br />may result in service interruptions, delays, or errors We will not be liable for any
<br />such interruptions, delays. errors, or bugs You agree that we may contact you in
<br />order to assist you with the Clover Service and obtain information needed to identify
<br />and fix any errors
<br />41.4.5. You shall at all times comply with any operating procedures, requirements,
<br />or guidelines regarding your use of the Clover Service that are posted on the Clover
<br />website or otherwise provided or made available to you (collectively. 'Clover Ops
<br />Guide")
<br />41.4.6. You shall comply with the following requirements in connection with your use
<br />of the Clover Service.
<br />a) With respect to each Customer who requests the delivery of transaction receipts
<br />via text message or email, such Customer must enter his phone number or email
<br />address in the appropriate space displayed on the Device himself, you are NOT
<br />permitted to add or modify any Customer Information (including but not limited to
<br />phone number and email address) on behalf of a Customer
<br />b) With respect to each Customer who desires to receive marketing material of
<br />other communications from you via text message or email, such Customer must
<br />check the appropriate consent check box displayed on the Device himself, you are
<br />NOT permitted to add or modify a Customer's consent indication on his behalf
<br />c) You (or your agents acting on your behalf) may only send marketing materials or
<br />other communications to the Customer's provided phone number, street address.
<br />and /or email address if the Customer has specifically consented by checking
<br />(himself) the applicable box displayed on the Device
<br />d) NOTWITHSTANDING THE CAPABILITY OF THE CLOVER SERVICE TO
<br />COLLECT AND STORE CUSTOMER INFORMATION AND TO ALLOW YOUR
<br />CUSTOMERS TO ELECT TO RECEIVE MARKETING MATERIALS FROM YOU
<br />SOME STATES MAY LIMIT YOUR USE OF SUCH INFORMATION ONCE
<br />COLLECTED, EVEN IF THE CUSTOMER HAS PROVIDED HIS CONSENT, AND
<br />IOR YOUR DISCLOSURE OF SUCH INFORMATION TO THIRD PARTIES YOU
<br />ACKNOWLEDGE AND AGREE THAT (1) YOUR USE OF CUSTOMER
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