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The Payeezy Gateway Services provided and other matters contemplated and
<br />this Section 39 are subject to the rest of this Agreement, as applicable, except to th
<br />extent the terms of this Section 39 directly conflict with another provision of thi
<br />Agreement, in which case the terms of this Section 39 will control.
<br />39.1. Definitions. Capitalized terms used in this Section 39 shall have the meanin
<br />given as defined in this Section or as defined in the Glossary or elsewhere in thi
<br />Agreement.
<br />Claim means any arbitration award, assessment, charge, citation, claim, damage
<br />demand, directive, expense, fine, interest, joint or several liability, lawsuit or othe
<br />litigation, notice, infringement or misappropriation of any Intellectual Property Righ
<br />or violation of any law, and any consequential, indirect, special, incidental or punitive
<br />damages and any attorney's fees and expenses incurred in connection therewith
<br />For purposes of the foregoing Claim definition, a Claim shall be considered to axis
<br />even though it may be conditional, contingent, indirect, potential, secondary
<br />unaccrued, unasserted, unknown, unliquidated, or unmatured.
<br />Confidential Information means the Payeezy Gateway Services, Documentation
<br />oper - atonal procedures, the terms and conditions of this Section 33 (including an
<br />schedule, exhibit or addendum), pricing or other proprietary business information,
<br />and any other information provided to you by us, whether or not such information i
<br />marked as confidential; provided, however, that Confidential Information will no
<br />include information that: (a) is or becomes generally known to the public through no
<br />fault of yours; (b) was lawfully obtained by you from a third party free of any
<br />obligation of confidentiality; (c) was already in your lawful possession prior to receipt
<br />thereof, directly or indirectly, from the disclosing party; . (d) is independently
<br />developed by you without the use of the Confidential Information; (e) is disclosed
<br />with our express written permission; or (f) is disclosed pursuant to a lawful court or
<br />governmental order, provided you provide us with prompt prior written notice of any
<br />proceeding that may involve such an order, and an opportunity to contest any
<br />disclosure at such proceeding.
<br />Customer means your customer who would like to provide payment for your goods
<br />or services.
<br />Documentation means any and all manuals and other written materials in any form
<br />provided for use with the Software, as amended by us from time to time, the terms
<br />of which are incorporated in this Section 39 as if fully set forth herein.
<br />Intellectual Property Rights means any and all patents, copyrights, trademarks,
<br />trade secrets, service marks, and any other intellectual property rights, and any
<br />applications for any of the foregoing, in all countries in the world.
<br />Merchant Account shall mean an account set up for a merchant that requires a
<br />card processor, bank, merchant ID, terminal ID, merchant identification number, or
<br />otherwise named unique merchant number. Multiple physical or virtual storefronts
<br />that process transactions under the same unique merchant number shall be
<br />deemed as one (1) Merchant Account.
<br />Payeezy Gateway Services or Services means the products or services offered
<br />through the Platform including, but, not limited to payment processing services such
<br />as authorization of transactions to the appropriate payment processing network or
<br />third party service provider, transaction responses (approved, declined), and the
<br />detailed reporting of those transactions, and all related and applicable Software.
<br />Platform means our operated, or approved, electronic payment plafform(s) and /or
<br />gateway(s) (also referred to as the "Payeezy Gateway") through which the payment
<br />Services contemplated under this Section 39 are provided.
<br />Software means all applications, protocols, software components and other
<br />interfaces and software provided by us to you pursuant to this Section 39, and any
<br />and all Updates.
<br />Updates means an embodiment of the Software that provides enhancements and
<br />/or improvements.
<br />Your Systems means any web site(s) or interfaces to the Services that are
<br />operated or maintained by you or on your behalf through which transactions are
<br />submitted for processing, and all your other associated systems.
<br />39.2. Fees. Client shall pay :Processor the fees for the Payeezy Gateway Services _
<br />as set forth on the Application: A separate account with us for Payeezy Gateway
<br />Services shall be required for,each separate Merchant Account held by you.
<br />39.3. Term; Termination. The Payeezy Gateway Services shall commence as of
<br />the effective date of this Agreement and shall remain in effect until terminated by
<br />either party as provided herein. Either party may terminate these Services upon.
<br />giving the other party at least thirty (30) days prior written notice. We may suspend .
<br />or terminate your access to the Services without prior notice, with or without cause.
<br />Regardless of the reason for termination, you shall be responsible for the payment
<br />of all fees due up to and including the effective date of termination.
<br />39.4. License Grant.
<br />39.4.1. License. Subject to the terms and conditions of this Agreement (including
<br />additional rights and licenses granted in the Documentation), we hereby grant you
<br />and you hereby accept a nonsublicensable, royalty free, non-exclusive,
<br />nontransferable, revocable limited license to use the Services, during the term of
<br />this Agreement, for the sole and limited purpose of submitting payment transactions
<br />to us for processing, and otherwise using our Services as set forth herein. For
<br />clarity, all references to Services in this Agreement shall include the applicable
<br />Software.
<br />A TRUE COPY
<br />CERTIFICATION ON LAST PAGE
<br />er 39.4.2. Documentation License. Subject h ditions of this
<br />e Agreement, we hereby grant, and you herebyaccepf, as honsu lic nsable, royalty
<br />s free, non-exclusive, non -transferable, revocable limited license to use the
<br />Documentation during the term of this Agreement for the sole and limited purpose of
<br />g supporting your use of the Services. You shall strictly follow all Documentation
<br />s provided to you, as it may be amended from time to time by us, in our discretion. To
<br />the extent that there is any conflict between the Documentation and the terms of
<br />Agreement, the terms of this Section 39 shall govern and control.
<br />r 39.4.3. Use Restrictions. You acknowledge that the Services and Documentation
<br />I constitute our intellectual property, therefore, you shall not, and shall not cause or
<br />permit any third party to: (i) use the Services in any way, other than in accordance
<br />with this Agreement or the Documentation or as otherwise instructed by us in
<br />t writing; (ii) use the Services or Documentation, either directly or indirectly, for
<br />benchmarking purposes or to develop any product or service that competes with the
<br />products and services provided under this Section 39; (iii) disassemble, decompile,
<br />decrypt, extract, reverse engineer or modify the Services, or otherwise apply any
<br />y procedure or process to the Services in order to ascertain, derive, and/or
<br />appropriate for any reason or purpose, the source code or source listings for the
<br />s Services or any algorithm, process, procedure or other information contained in the
<br />t Services, except as otherwise specifically authorized in accordance with this Section
<br />39; (iv) provide the 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 the Agreement; (v) use, modify, adapt, reformat, copy or reproduce the
<br />Services or Documentation or any portion thereof, except as is incidental to the
<br />purposes of this Section 39, or for archival purposes (any copies made hereunder
<br />shall contain all appropriate proprietary notices); (vi) rent, lease, upload, assign,
<br />sublicense, transfer, distribute, allow access to, or time share the Services or
<br />Documentation; (vii) circumvent or attempt to circumvent any applicable security
<br />measures of the Services; (viii) attempt to access or actually access portions of the
<br />Platform or Services not authorized for your use; and/or (ix) use the Services in any
<br />unlawful manner or for any unlawful purpose.
<br />39.4.4. 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 Services provided
<br />hereunder. We will have no liability for your failure to properly install the most
<br />current version of the Software or any Update, and we will have no obligation to
<br />provide support or Services for any outdated versions.
<br />39.4.5. 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 />39.4.6. 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 applicable
<br />laws and regulations. In particular, but without limitation, none of the Software or
<br />underlying information or technology may be downloaded or otherwise exported or
<br />re-exported (i) to any country to which the United States has embargoed goods (or
<br />any national or resident thereof); (ii) to anyone on the United States Treasury
<br />Department's list of Specially Designated Nationals or the United States Commerce
<br />Department's Table of Deny Orders; or (iii) in any manner not in full compliance with
<br />the requirements of the United States Bureau of Industry and Security and all
<br />applicable Export Administration Regulations. If you have rightfully obtained the
<br />Software outside of the United States, you agree not to re-export the Software
<br />except as permitted by the laws and regulations of the United States and the laws
<br />and regulations of the jurisdiction in which you obtained the Software. You warrant
<br />that you are not located in, under the control of, or a national or resident of any such -
<br />country or on any such list.
<br />39.4.7. 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 is
<br />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)(1i) 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 />Agreement and shall be prohibited except to the extent expressly permitted by the
<br />terms of this Section 39.
<br />39.4.8. Return/Destruction. Upon termination or expiration of this Agreement, all
<br />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 in writing.
<br />39.4.9. 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.
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