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39.4.10. Use of Transaction Data. As permitted by applicable law and regulations,
<br />we reserve the right to copy and distribute to third parties, any information
<br />associated with your use of the Services or your activities on the Platform.
<br />39.5. Platform Matters
<br />39.5.1. 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 to
<br />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 39, you acknowledge that unless
<br />and until you complete the Integration, no Services need be provided by us to you
<br />pursuant to this Agreement, except as otherwise specifically provided in Section
<br />39.5.2 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 Services
<br />through the Platform.
<br />39.5.2. Set -Up Assistance Services. Subject to Section 39.5.1 above, upon your
<br />request to us, and upon payment of any applicable Fees, we will provide you with
<br />set-up services to assist with the Integration.
<br />39.5.3. Shut Downs. We reserve the right, from time to time, without prior notice, to
<br />shut down and restart the Platform for maintenance and /or software upgrades for
<br />reasonable time periods of one minute or more.
<br />39.5.4. Orders by Customers. You are solely responsible for accepting,
<br />processing, and filling any orders for purchases by your Customers, and for
<br />handling any inquiries arising therefrom. You shall use the highest standards in the
<br />industry in responding to complaints by Customers. We are not responsible or liable
<br />for any unauthorized access to your data or Your Systems by any means or device.
<br />39.5.5. Suspension of Access to the Platform and Services. We may suspend
<br />your access to the Platform and Services, without prior notice, with cause. For
<br />purposes of this Section 39 the term "cause", in addition to cause as defined under
<br />the Agreement, shall mean that significant activity by you has been detected (which
<br />excludes a high volume of transactions) or the security or integrity of the Platform is
<br />materially compromised. We will make commercially reasonable efforts to provide
<br />prior notification to you of any such proposed suspension and provide you with a
<br />reasonable opportunity to cure, provided just you (and no other user) are affected,
<br />and provided such cure is allowed by the applicable law or the Card Organization
<br />Rules. If prior notification to you is not possible because such significant activity or
<br />security issue would materially and adversely affect other users of the Platform and
<br />Services, then we will provide notice of such suspension as promptly as possible
<br />thereafter with detailed information regarding the suspected fraudulent activity or
<br />security issue, as well as any other information that can assist you with identifying
<br />the root cause of the problem responsible for such suspension. Upon a
<br />determination by us that you are not responsible for the fraudulent activity or
<br />security issue resulting in the suspension or any security threat as abated, the
<br />Services and your license to the Software shall be promptly re -activated and the
<br />Services under this Section
<br />39 shall recommence. Regardless of the reason for such suspension, you shall be
<br />responsible for the payment of all fees due up to and including the effective date of
<br />the suspension.
<br />39.6. Security of Information. We will use commercially reasonable efforts to
<br />maintain the security of the Services and the Platform. You will use commercially
<br />reasonable efforts to maintain the security of Your Systems. Such steps by you will
<br />be 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 (ii) implementing
<br />reasonable protective techniques suggested by us. You further agree that you will
<br />be bound by and comply with all of Tour and all Card Organization security rules and
<br />regulations as they now exist oras 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 internet.
<br />39.7. Privacy. We have adopted online Privacy Statement(s) to inform individuals
<br />as to our online collection and use of personal information. You agree that, during
<br />the term of this Agreement, you will adequately communicate and comply with an
<br />appropriate privacy policy explaining your online collection and use of the personal
<br />information of your Customers. Unless required by law, Card Organization Rules, or
<br />done pursuant to this Agreement, you shall not, under any circumstances, sell,
<br />purchase, provide, or otherwise disclose any customer's account information,
<br />transaction information, or other personal information to any third party. You shall
<br />store all data securely. We may advise potential users of the services that we have
<br />a relationship with you.
<br />39.8. Audit Rights. Upon notice to you, we may audit your usage, records and
<br />security of the Services, your Customer's payment processing information, and the
<br />services provided hereunder to ensure (i) that you are using the Services in full
<br />compliance with the provisions of this Section 39; (ii) that all applicable fees have
<br />been paid; (iii) that you are adhering to your privacy policy; and; (iv) that you are in
<br />full compliance with all applicable laws, regulations and rules (including but not
<br />limited to Card Organization Rules). Any
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<br />such audit shall be conducted during regIJaRbSbWN,QfssWyour offices and
<br />shall not interfere unreasonably with your business.
<br />39.9. Indemnification. You shall indemnify, defend, and hold us, our subsidiaries
<br />and affiliates and our and their officers, directors, employees, shareholders, agents
<br />and 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 (ii)
<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 />39.10. Limitation of Liability.
<br />39.10.1. Processor is not liable for the merit and legitimacy of the orders forwarded
<br />by you. All liability for validity of orders remains with you. We are not responsible for
<br />any data entry errors, Customer misrepresentations, or reporting errors resulting
<br />from your actions. We shall not be liable to you or your Customer for the accuracy of
<br />the information provided by the Platform or our Services.
<br />39.10.2. In no event shall we be liable to you, or to any other person or entity, under
<br />this Section 33, or otherwise, for any punitive, exemplary, special, incidental or
<br />consequential damages, including, without limitation, any loss or injury to earnings,
<br />profits or goodwill.
<br />39.10.3. Notwithstanding any provision in this Agreement to the contrary, in no event
<br />shall our liability under this Section 39 for all Claims arising under, or related to, this
<br />Section 33 exceed, in the aggregate (inclusive of any and all Claims made by you
<br />against us, whether related or unrelated), the lesser of: (i) the total amount of fees
<br />paid by you for the our Services during the 12 -month period immediately preceding
<br />the date the event giving rise to such Claim(s) occurred; or (ii) $50,000.00.
<br />39.10.4. Notwithstanding provisions set forth herein, we will not be liable for any
<br />Claims under this Agreement arising directly or indirectly from or otherwise
<br />concerning: (a) any termination, suspension, delay or disruption of service (including
<br />billing for a service) by the Internet, any common carrier or any third party service
<br />provider; (b) any failure, disruption or malfunction of the Services provided
<br />hereunder or the Internet, or any communications network, facility or equipment
<br />beyond our reasonable control, whether or not attributable to one or more common
<br />carriers or third party service providers; (c) any failed attempts by you or your
<br />Customers to access any Systems or to complete processing transactions; or (d)
<br />any failure to transmit, obtain or collect data from Customers or for human, machine
<br />or software errors or faulty or your or your Customer's erroneous input. Except as
<br />expressly agreed to by us in writing with respect to any Separate Product, we are
<br />not liable for any Excluded Products.
<br />39.11. DISCLAIMER OF WARRANTIES. YOU ACKNOWLEDGE AND AGREE
<br />THAT THE USE OF THE PAYEEZY GATEWAY SERVICES AND
<br />DOCUMENTATION ARE AT YOUR SOLE RISK WE MAKE NO
<br />REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AND NO IMPLIED
<br />AT LAW WARRANTY SHALL ARISE FROM THIS SECTION, PAYEEZY
<br />GATEWAY SERVICES, DOCUMENTATION, OUR PROCEDURES, OTHER
<br />SERVICES PROVIDED OR PERFORMED BY US HEREUNDER, INCLUDING,
<br />WITHOUT LIMITATION: (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY
<br />OR FITNESS FOR A PARTICULAR PURPOSE, (B) ANY WARRANTIES OF
<br />NONINTERFERENCE OR NON -INFRINGEMENT; OR (C) ANY WARRANTIES
<br />THAT ANY PRODUCT OR SERVICE PROVIDED HEREUNDER (INCLUDING BUT
<br />NOT LIMITED TO THE SOFTWARE) WILL (1) MEET YOUR REQUIREMENTS; (2)
<br />OPERATE ACCORDING TO YOUR EXPECTATIONS; (3) PROVIDE ACCURATE
<br />DATA; OR (4) OPERATE UNINTERRUPTED OR ERROR FREE. ANY AND ALL
<br />SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED BY US AND WAIVED BY
<br />YOU. WE DO NOT WARRANT THAT ANY ERRORS WILL BE CORRECTED. .
<br />EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH -HEREIN, THE PAYEEZY
<br />GATEWAY SERVICES, (INCLUDING WITHOUT LIMITATION THE PAYEEZY
<br />GATEWAY AND SOFTWARE), DOCUMENTATION AND OTHER SERVICES
<br />PROVIDED HEREUNDER ARE PROVIDED ON AN "AS -IS, WITH ALL FAULTS"
<br />BASIS. THIS DISCLAIMER OF WARRANTIES CONSTITUTES AN ESSENTIAL
<br />PART OF THIS AGREEMENT. All decisions to reject any processing transaction or
<br />payment for your products or services are solely your responsibility.
<br />39.12. Notices. You agree to notify us of any change in your name, type of
<br />business, or any other information required on your Merchant Processing
<br />Application at least thirty (30) business days prior to the effective date of change.
<br />Any notice or other communication required or permitted to be given hereunder shall
<br />be in writing, addressed or transmitted to the party to be notified at such party's
<br />address or number at such party's last known address or number, and shall be: (i) if
<br />sent by us, hand delivered or delivered by facsimile transmission, overnight courier
<br />or certified, registered, regular mail or e-mail; or (ii) if sent by you, certified or
<br />registered mail, postage prepaid return receipt requested to 3975 N.W. 120th
<br />Avenue, Coral Springs, FL 33065. Any notice delivered hereunder shall be deemed
<br />effective, as applicable, upon delivery, if hand delivered or sent by overnight courier;
<br />upon receipt as evidenced by the date of transmission indicated on the transmitted
<br />material, if by facsimile transmission or e-mail; on the date of delivery indicated on
<br />the return receipt, if mailed by certified or registered mail; or ten (10) days after
<br />mailing, if by regular mail (or as otherwise required by applicable law). The parties'
<br />addresses may be changed by written notice to the other party as provided herein.
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