Subject to Customer’s compliance with the terms and conditions of this Agreement, CardFlight hereby agrees that Customer has the right to access and use the services specified in the attached Order Form (collectively, the “Service”) during the term of this Agreement for the purpose of accepting end customer credit/payment card payments – all only in accordance with CardFlight’s applicable user documentation (or other CardFlight-provided written instructions) (“Documentation”). The Service is a platform to help connect Customer’s Application (as defined in Section 1.3) payment acceptance activities with credit/payment card provider or processors (“Card Providers”). Customer may distribute its Application to end merchants (“Merchants”) provided that, such Merchants are bound in writing by restriction at least a protective of the Service, Hardware and Software as this Agreement. Customer acknowledges and agrees that it is responsible for all Merchant support. The Service may not work with all Card Providers – and CardFlight reserves the right to cease support for any Card Providers at any time (with or without notice). For clarity, the Service is hosted by CardFlight. Customer agrees that it will not engage any third party to provide services for, or consult with regard to, the Service – without CardFlight’s prior written consent.
Hardware and Software
Subject to Customer’s payment of all applicable fees, CardFlight will supply Customer with the hardware set forth on the Order Form (“Hardware”). Subject to Customer’s compliance with the terms and conditions of this Agreement, CardFlight grants Customer a nonexclusive, nontransferable, nonsublicensable license to, during the term of this Agreement, use the object code version of any software incorporated into the Hardware (“Software”) only as necessary for Customer use the Hardware in connection with the Service – and only in and as part of the specific Hardware into which it is incorporated by (or on behalf of) CardFlight. Except for the license granted under this Section, CardFlight and its licensors shall retain all rights, title, and interest in and to the Software and all copies thereof.
Subject to Customer’s compliance with the terms and conditions of this Agreement, CardFlight grants Customer a nonexclusive, nontransferable, nonsublicensable license to, during the term of this Agreement, copy, install and use the software development kit provided by CardFlight (collectively, the “SDK”) solely for the purpose of making the Service, Hardware and Software interoperable with Customer’s own mobile application (“Application”). Customer may exercise the foregoing license only within and for the benefit of Customer’s organization. Customer shall not distribute the SDK to any third party. Customer shall not, directly or indirectly (or allow any third party to): use the SDK to create (or facilitate the creation of) any product or service that is competitive (in any way) with the Service; use the SDK to engage or operate with any third party products or services competitive with the Service; or use the SDK for any commercial purpose (except to the extent your use of the Service to accept credit/payment card payments is a “commercial purpose”).
Customer will not (and will not allow any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service; (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service (excepting to the extent distribution of Customer’s Application is considered a “distribution”); (iv) use the Service for timesharing or service bureau purposes or otherwise for the benefit of a third party (excepting for the purposes of accepting credit/payment cards payments from its end customers); or (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof. Customer will use the Service only in compliance with (i) the Order Form, (ii) the rights granted hereunder, and (iii) in accordance with all applicable laws and regulations. All restrictions contained in this Section 1.4 shall also apply to the SDK and Software.
Except for the rights expressly granted under this Section 1, CardFlight retains all right, title, and interest in and to the Service, Software and SDK (and all data, software, products, works, and other intellectual property created, used, or provided by CardFlight for the purposes of this Agreement). To the extent Customer provides CardFlight with any feedback relating to the Service, Software or SDK (including, without limitation, feedback related to usability, performance, interactivity, bug reports and test results) (“Feedback”), CardFlight shall own all right, title and interest in and to such Feedback (and Customer hereby makes all assignments necessary to achieve such ownership).
Payment of Fees
Customer will pay CardFlight the fees for the Service as set forth in the Order Form (“Fees”). Unless otherwise specified in the Order Form, all Fees will be invoiced in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. For any Service for which fees are billed in arrears, CardFlight will invoice Customer following completion of the Service. Unpaid invoices are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all (i) taxes associated with Service other than taxes based on CardFlight’s net income, and (ii) CardFlight’s costs of collection in the event of Customer’s delinquent payment. In the event Customer is reselling or otherwise distributing its Application to any Merchant, such Merchant’s failure to pay Customer will not excuse, delay or vitiate any of Customer’s payment obligations hereunder. All Fees paid are non-refundable (except as otherwise expressly set forth in the Order Form) and not subject to set-off.
Subject to earlier termination as provided below, this Agreement shall commence on the Effective Date and continue for the initial subscription period specified in the Order Form; thereafter this Agreement will automatically renew for consecutive periods each equal in length to the initial subscription period (unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then current period). Either party may terminate this Agreement in the event the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days (ten (10) days in the case of non-payment) from receipt of written notice thereof. Upon termination of this Agreement, all rights granted herein to Customer will terminate and Customer will make no further use of the Services. The following provisions will survive termination of this Agreement: Sections 2, 3, 4, 5, 6, 7, 8, and 9 as well as all license and use restrictions. Notwithstanding the foregoing, CardFlight may suspend access to the Service, or reject processing of any payment/credit card transaction in the event CardFlight believes there is a breach of this Agreement or otherwise any activities by Customer or any third party that may be fraudulent, illegal or may adversely affect the Service.
During the term of this Agreement, each party (a “Disclosing Party”) may provide the other party (a “Receiving Party”) with confidential and/or proprietary materials and information (“Confidential Information”). All materials and information provided by Disclosing Party to Receiving Party and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all other information that the Receiving Party reasonably should have known was the Confidential Information of the Disclosing Party, shall be considered Confidential Information; for the avoidance of doubt, the Service and terms of this Agreement are Confidential Information of CardFlight. Receiving Party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of Disclosing Party. Receiving Party will only use the Confidential Information internally for the purposes contemplated hereunder. The obligations in this Section 4 shall not apply to any information that: (i) is made generally available to the public without breach of this Agreement, (ii) is developed by the Receiving Party independently from the Disclosing Party’s Confidential Information, (iii) is disclosed to Receiving Party by a third party without restriction, or (iv) was in the Receiving Party’s lawful possession prior to the disclosure to the Receiving Party and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party. Receiving Party may disclose Confidential Information as required by law or court order; provided that, Receiving Party provides Disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon Disclosing Party’s request, Receiving Party shall return to Disclosing Party all Disclosing Party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof. Notwithstanding the foregoing, (a) Receiving Party may disclose Confidential Information to any third-party to the limited extent necessary to exercise its rights, or perform its obligations, under this Agreement; provided that, all such third parties are bound in writing by obligations of confidentiality and non-use at least as protective of the Disclosing Party’s Confidential Information as this Agreement and (b) all Feedback shall be solely CardFlight’s “Confidential Information.”
CardFlight warrants that it will use commercially reasonable efforts to (i) ensure the Service is available on a 24/7 basis, and (ii) promptly correct all verifiable defects in the Service of which CardFlight is aware. CardFlight warrants to Customer that the Hardware will be free from defects in material and workmanship, and shall substantially conform to its applicable user manual, as it exists at the date of delivery, for a period of twelve (12) months from the date of delivery. CardFlight’s entire liability and Customer exclusive remedy for breach of the foregoing warranty shall be for CardFlight to, at its option, either repair or replace the Hardware that does not meet this warranty. The Hardware warranty will be automatically void if damage is caused to the Hardware after delivery or if the Hardware is otherwise misused by Customer or any third party after delivery. EXCEPT AS EXPRESSLY SET FROTH IN THIS SECTION 5, CARDFLIGHT DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY AND ALL SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. CARDFLIGHT DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE.
Limitation of Liability; Indemnity
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, NEITHER PARTY, SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY: (A) ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE, OR TECHNOLOGY, OR LOSS OF BUSINESS; (B) INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; (C) MATTERS BEYOND SUCH PARTY’S REASONABLE CONTROL (SUCH AS CARDFLIGHT’S SYSTEMS BEING “HACKED” BY A THIRD PARTY, OR DOWNTIME OR ERRORS CAUSED BY CARD PROVIDERS); OR (D) AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES PAID BY CUSTOMER TO CARDFLIGHT DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION ACCRUES (PROVIDED THAT, IF NO FEES ARE PAID, SUCH AMOUNTS SHALL BE LIMITED TO US$100.00). THE LIMITATIONS ON LIABILITY CONTAINS HEREIN SHALL NOT APPLY TO BREACH(ES) OF SECTION 4, OR BREACH(ES) OF ANY LICENSE RESTRICTIONS.
CARDFLIGHT SHALL HAVE NO LIABILITY WITH RESPECT TO ANY OF THE ACTS OR OMISSIONS OF ANY CARD PROVIDERS. CARDFLIGHT DOES NOT GUARANTEE, WARRANTY OR UNDERWRITE ANY PAYMENTS PROCESSED BY, OR SUBMITTED BY CUSTOMER OR ANY END CUSTOMER TO BE PROCESSED BY, ANY CARD PROVIDERS HEREUNDER
CARDFLIGHT WILL HAVE NO LIABILITY OR RESPONSIBILITY WITH RESPECT TO THE ACTS OR OMISSIONS OF ANY THIRD PARTIES IN CONNECTION WITH THE SERVICE (INCLUDING, FOR EXAMPLE, THE FRAUDULENT ACTIVITIES OF ANY MERCHANTS OR END CUSTOMERS).
Customer will indemnify and hold CardFlight harmless from and against all claims, demands, damages, losses, costs and expenses (including attorneys’ fees) arising from or in connection with any disputes or other issues between Customer and any Card Provider or Customer end customer.
Until one (1) year after termination of this Agreement, Customer will not encourage or solicit any employee or consultant of CardFlight to leave CardFlight for any reason.
Customer acknowledges that the Service, Software and Hardware may be subject to United States or Territory export and import controls, and in its activities in connection with this Agreement, Customer shall at all times strictly comply with all laws, regulations and orders, and agrees to commit no act which, directly or indirectly, would violate any United States or Territory law, regulation or order, including, without limitation, tax, export and foreign exchange laws, export controls imposed by the U.S. Export Administration Act of 1979.
The parties will comply with the additional term and conditions (if any) set forth in the Order Form. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable or transferable by a party except with the other party’s prior written consent; provided that, a party may transfer and assign its rights and obligations under this Agreement without consent to a successor to all or substantially all of its assets or business to which this Agreement relates. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind CardFlight in any respect whatsoever. Any notices in connection with this Agreement will be in writing and sent by first class US mail, confirmed facsimile or major commercial rapid delivery courier service to the address specified on the Order Form (or such other address as may be properly specified by written notice hereunder). Email notice shall authorized to the extent set forth herein. This Agreement shall be governed by the laws of the State of New York, without regard to the conflict of law provisions thereof. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in New York, New York, USA, in the English language and the arbitral decision may be enforced in any court. With respect to all disputes arising in relation to this Agreement, but subject to the preceding arbitration provision, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in New York, New York. The prevailing party in any action or proceeding to enforce this Agreement will be entitled to recover costs and attorneys’ fees.
July 28, 2013