Licensee is developing an interface to such Specifications or otherwise taking such action as is necessary to enable Licensee to process transactions through Company's systems (the "Licensee Program"). Licensee desires to license the Specifications from Company and Company has agreed to license such Specifications upon the terms and conditions contained in this Agreement.
License Grant. Subject to the terms and conditions of this Agreement, Company grants to Licensee a nontransferable, nonexclusive, limited license to use the Specifications for the sole purpose set forth in this Agreement.
Updates. From time to time, Company issues updates to the Specifications. Within 90 days of receipt of such updates, Licensee shall update its application as required to comply with changes to the Specifications and shall recertify its application following such update at all times during the term of this Agreement.
Reservation of Rights and Restrictions. Company reserves all rights in the Specifications not expressly granted herein. Except as expressly provided herein, (i) Licensee shall not copy, nor allow others to copy, any of the Specifications. (ii) Licensee shall not sell, assign, pledge, lease, deliver, or otherwise transfer the Specifications or any part thereof to any third party. (iii) Licensee shall not disclose to any third party or permit any third party to have access to or use the Specifications or any part thereof. (iv) Licensee shall not modify, alter or change the Specifications or any part thereof, or develop any diagram, drawing or other documentation based on the Specifications or the information contained therein. (v) Licensee shall not use the Specifications to develop, manufacture, modify or reproduce any other product or service that competes with any of Company's financial transaction card acquiring, authorization, settlement, processing, clearing or issuing services. (vi) Licensee may not reverse engineer the Specifications. Notwithstanding the foregoing, Licensee may disclose the Specifications to a third party subcontractor for the sole purpose of allowing such third party to write an interface into Company's systems. Said third party must agree in writing to be bound by the terms and conditions of this Agreement.
Ownership of the Specifications. Licensee acknowledges and agrees that all right, title and interest in and to the Specifications and all patents, copyrights, trademarks, trade names, trade secrets and other proprietary rights related to or residing in the Specifications, and all copies of all or any part thereof in any form whatsoever, shall remain with Company. Licensee understands and agrees that the Specifications contain trade secrets of Company that must be kept confidential. Licensee shall promptly notify Company of any actual or threatened misappropriation or infringement of Company’s proprietary rights which may come to Licensee's attention.
Proprietary Notices. Licensee shall not remove from the Specifications, or alter, any of Company’s trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Specifications, without the prior express written consent of Company. Licensee shall duplicate all such proprietary rights notices on each copy of the Specifications permitted to be made hereunder.
Confidential Information. The Specifications and all documentation, drawings, designs, specifications, documentation and related information pertaining to the Specifications, whether in oral, written, graphic, or electronic format, are and shall remain the confidential and proprietary information of Company (collectively, the "Confidential Information"). Licensee shall not disclose the Confidential Information, and shall treat the Confidential Information as strictly confidential, using the same degree of care to prevent disclosure of such information as Licensee uses with respect to its own confidential and/or proprietary information, which shall not be less than the care a reasonable person would use under similar circumstances. Licensee shall use Confidential Information only for the purpose set forth in this Agreement and not for any purposes detrimental to Company. Except as expressly permitted by this Agreement, Licensee shall not copy any Confidential Information without the prior express written consent of Company and all Confidential Information, and any copies thereof, shall be returned promptly to Company upon request in the event of termination of this Agreement.
Disclaimer of Warranties. THE LICENSED MATERIALS ARE BEING LICENSED (NOT SOLD) AND PROVIDED TO LICENSEE AS IS, WITH ALL FAULTS, WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT: (A) COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER IN CONNECTION WITH THIS AGREEMENT AND THE USE OF ANY LICENSED MATERIALS BY LICENSEE, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE), (B) COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (C) COMPANY SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO LICENSEE'S USE OF ANY LICENSED MATERIALS AND LICENSEE SHALL DEFEND COMPANY FROM, AND INDEMNIFY AND HOLD COMPANY HARMLESS AGAINST, ALL SUCH CLAIMS. THE FOREGOING STATES THE ENTIRE LIABILITY OF COMPANY WITH REGARD TO THIS AGREEMENT AND THE LICENSED MATERIALS. THE LIMITATIONS OF LIABILITY CONTAINED HEREIN ARE A FUNDAMENTAL PART OF THE BASIS OF COMPANY'S BARGAIN HEREUNDER, AND COMPANY WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS.
Effect of Termination of the Agreement. All obligations of Licensee hereunder shall survive termination of this Agreement. Upon termination Licensee shall, at Company's sole election, (a) return to Company all Specifications, including all copies and portions thereof; or (b) destroy all Specifications, including all copies and portions thereof. In either case, Licensee shall erase from all computer, electronic, or other storage devices or otherwise destroy all images and copies of all Specifications, and all portions thereof, and deliver to Company a certificate signed by an officer of Licensee acknowledging that Licensee's obligations under this section have been fully satisfied.
Inspection Rights and Further Assurances. During the term of this Agreement and for a period of one year thereafter, Company and its agents shall have the right to inspect the business records, equipment, facilities and premises of Licensee during normal business hours to verify Licensee's compliance with its obligations under this Agreement. In conducting such inspection, Company shall be entitled to confiscate any Specifications, copies thereof, or other documentation based on the Specifications which Licensee may have in its possession in violation of this Agreement. At any time upon the request of Company, Licensee shall promptly and duly execute and deliver any such further instruments and documents and take such further action as Company may reasonably deem desirable to obtain the full benefits of this Agreement.
Assignments. No right or obligation of Licensee under this Agreement shall be assigned, delegated or otherwise transferred, whether by agreement, operation of law or otherwise.
License Grant for Company Gateway Service. Company has the right to license and hereby grants to You, and You accept, a nonexclusive, nontransferable sublicense to use the Company Gateway Service on a single computer or computer network owned, leased, or otherwise controlled by You. Except as expressly set forth above, as an essential condition in the utilization of the Company Gateway Service contemplated by this Agreement, You may not copy, modify, reverse engineer, decompile, disassemble, assign, sublicense, transfer, pledge, lease, rent or otherwise share the Company Gateway Service.
No Ownership Rights Conveyed to Company Gateway Service. You acknowledge and agree that this Agreement does not convey any title or ownership interest in the Company Gateway Service to You in any manner whatsoever. You further acknowledge and agree that the only right granted to You by this Agreement is the limited license to use the Company Gateway Service according to the terms and conditions of this Agreement.
Term. This Agreement will commence immediately upon your selection of the "I Accept" box on the applicable screen. Thereafter, this Agreement will continue on a month to month basis unless and until either party terminates this Agreement as provided herein. We may terminate this Agreement upon Your breach of any term of this Agreement. In the event we terminate the Agreement due to Your breach, You will be responsible for all fees due and owing, if any, including any amount incurred during the month of termination.
New Services. New online services may be offered from time to time as part of the Company Gateway Service. Access to such new services shall be subject to the terms and conditions of this Agreement and any additional fees, terms and conditions relative to the particular new online service, if any.
Fees. Applicable fees, if any, in connection with the Company Gateway Service will be set-forth in a subsequent, contemporaneous or prior agreement (such as, for example purposes only, a merchant processing agreement) or Statement of Work. You shall be solely responsible for, any and all taxes of whatever nature, including without limitation, withholding taxes or other taxes imposed by foreign jurisdictions, federal, state and local taxes and surcharges applicable to the services rendered under this Agreement, excluding taxes based on the income of Company. Company shall not be liable for, and You shall pay directly and indemnify and hold Company and its affiliates harmless from and against any and all liability for, all such taxes and/or surcharges.
Termination. Company may terminate This Agreement at any time for any reason.
Equipment. You are responsible for and must provide solely at your own expense, all telephone and other equipment and services necessary to access the Company Gateway Service.
Customer Support. Certain support and services will be provided to You, including: (i) production and distribution of user documentation which describes the Company Gateway Service and (ii) telephone customer support services. System Availability. You acknowledge and agree that, although You will generally have access to the Company Gateway Service twenty-four hours per day, seven days per week (except in the event of a force majeure event), access to certain services may not be available on a continuous basis and the Company Gateway Service will be subject to periodic downtime to permit, among other things, hardware and/or software maintenance to take place.
Copyrighted Material. The Company Gateway Service (including the website), contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, and graphics. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part, whether copyrighted, trademarked or proprietary, or otherwise. You may download copyrighted material solely for Your own internal use as contemplated under this Agreement. Except as expressly provided by copyright law, any copying, redistribution, or publication must be with the express permission of the owner. In any copying, the redistribution or publication of copyrighted material and any changes to or deletion of author attribution or copyright notice is expressly prohibited.
Lawful Use. You shall use the Company Gateway Service and any components thereof for lawful purposes only. You shall not post or transmit through the Company Gateway Service any material which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasion of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law.
Security of Information. While commercially reasonable steps are taken to maintain the security of the Company Gateway Service, there is no guarantee of absolute security of information that is communicated over the Internet. You acknowledge that all information transmitted and received through the Internet or other electronic means is subject to unauthorized interception, diversion, corruption, loss access or disclosure.
Compliance with Laws. You shall comply fully with the requirements of all applicable federal, state and local laws and regulations. Furthermore, You are solely responsible for monitoring legal developments applicable to the operation of Your business, interpreting applicable laws and regulations, determining the requirements for compliance with all applicable laws and regulations, and maintaining an on-going compliance program.
Disclaimers. We do not make and hereby expressly disclaim any representation or warranty (i) that access to the Company Gateway Service will be uninterrupted or error free, (ii) that security breaches will not occur with respect to any information communicated through the Company Gateway Service the Internet, or any common carrier communications facility, and (iii) as to the results that may or may not be obtained by You in connection with Your use of the Company Gateway Service. WE DO NOT MAKE ANY WARRANTY, GUARANTEE OR REPRESENTATION (EITHER EXPRESS OR IMPLIED) REGARDING THE MERCHANTABILITY, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF THE COMPANY GATEWAY SERVICE OR ANY SERVICES PROVIDED UNDER THIS AGREEMENT, AND ALL SUCH WARRANTIES, GUARANTEES AND REPRESENTATIONS ARE HEREBY EXPRESSLY DISCLAIMED. ALL SERVICES PROVIDED UNDER THIS AGREEMENT AND THE COMPANY GATEWAY SERVICE ARE PROVIDED ON AN "AS-IS, WITH ALL FAULTS" BASIS.
Indemnification. You shall be liable to and shall indemnify and hold Company, its affiliates, their employees, representatives, successors and permitted assigns harmless from and against any and all claims, demands by third parties, losses, liability, cost, damage and expense, including litigation expenses and reasonable attorneys' fees and allocated costs for in-house legal services, to which Company, its employees, representatives, successors and permitted assigns may be subjected or which it may incur in connection with any claims which arise from or out of or as the result of (i) Your breach of this Agreement, (ii) failure by You in the performance of Your duties and obligations under this Agreement, (iii) Your distribution by You of Your Licensee Program, and/or 3rd party use of Your Licensee Program; and/or (iv) any data or security breach caused by, or alleged to have been caused by or resulting from the Company Gateway Service.
Limitation of Liability. You acknowledge and agree that We shall not be liable to You for any claims, damages, losses, obligations, costs or expenses or other liability arising directly or indirectly from or otherwise concerning (i) any termination, suspension, delay or disruption of service (including billing for a service) by the Internet, any common carrier or any third party service provider; (ii) any failure, disruption or malfunction of the Company Gateway Service, the Internet, or any communications network, facility or equipment, whether or not attributable to one or more common carriers; (iii) Your failed attempts to access the Company Gateway Service or to complete transactions via the Company Gateway Service; (iv) any failure to transmit, obtain or collect data or for human, machine or software errors or faulty or erroneous input by You; (v) any damages resulting from any delays and/or losses arising in connection with the services provided hereunder; or (vi) any loss of or inability to access data or information stored or generated by the Company Gateway Service. Notwithstanding anything to the contrary in this Agreement or elsewhere, Our cumulative liability to You for any claim related to this Agreement and Your use of the Company Gateway Service (whether arising from tort, statute, contractor, or otherwise) shall in all cases be limited to the actual, direct and proven out-of-pocket losses, damages or expenses suffered or incurred by You arising from Our willful misconduct or gross negligence. Furthermore, Our cumulative liability to You shall not, in any case, exceed the fees paid by You for use of the Company Gateway Service to Us by You during the month preceding the month in which the claim arose. Notwithstanding anything to the contrary in this Agreement or elsewhere, in no event shall We be liable to You or to any third party for any indirect, special, incidental, consequential, punitive or unproven losses, damages or expenses of any kind, including, without limitation, lost profits or loss of goodwill arising from the use or inability to use the Company Gateway Service including, without limitation, the inability to access your data or information generated or stored on the Company Gateway Service, and regardless of whether such claim arises in tort, in contract or by statute or regulation. The Parties acknowledge and agree that the provisions and limitations of this Section are of the essence of this Agreement and that absent them, neither Party would have entered into this Agreement.
Governing Law. This Agreement shall be construed and governed in accordance with the laws of the State of New York, excluding its conflict of law provisions. Severability. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms of this Agreement.
No Waiver. The failure of either party to enforce any rights granted by this Agreement or to take action against the other party in the event of any breach of this Agreement shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
Amendment. This Agreement may be modified, amended or replaced by Us from time to time upon notice to You on the Company Gateway Service website or other form of written notice; provided, however, that if We send You any such notice, via electronic communication, a posting on this website or otherwise, of any such modification, amendment or replacement, You confirm Your acceptance of the modification, amendment or replacement by not closing and/or by continuing to use and access Your account on the Company Gateway Service.
Force Majeure. In addition to the limitations of liability set forth above, in no event shall We or You be liable with respect to the failure of its duties and obligations under this Agreement which is attributable to acts of God, war, terrorism, conditions or events of nature, civil disturbances, work stoppages, equipment failures, power failures, fire or other similar events beyond its control.
Entire Agreement. You acknowledge that You have read this Agreement, understand it and agree to be bound by its terms and conditions. This Agreement is the complete and exclusive statement of the Agreement between You and Us and supersedes any prior agreements, proposal, representation or warranty between You and Us regarding Your use of the Company Gateway Service. TO PROCEED WITH THE COMPANY GATEWAY SERVICE, YOU MUST AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH ABOVE. IF YOU DO NOT AGREE, PROMPTLY LOG-OFF OF THIS PROGRAM. IF YOU AGREE TO THESE TERMS AND CONDITIONS, INDICATE YOUR AGREEMENT BY SELECTING THE "I ACCEPT" BOX ON THE APPLICABLE SCREEN.