Upserve Master Subscription Agreement
Valid for In-App Subscriptions, Amendments and Order Forms executed on or after April 1, 2020. Click here to view previous versions of the Upserve Master Subscription Agreement
Effective January 1, 2020, Upserve is offering a Data Processing Addendum to the Master Subscription Agreement with respect to the processing of personal information under the California Consumer Privacy Act of 2018. If applicable to you, you may enter into the Data Processing Addendum by downloading a copy and following the included instructions. Once complete, the Data Processing Addendum will supplement the terms of your Master Subscription Agreement.
By executing an Order referencing this Upserve Merchant Agreement, by renewing an existing Order, by subscribing to In-App Subscriptions or by otherwise using the Services provided by Upserve, Merchant agrees to be legally bound by the terms of this Agreement, including those which limit Upserve’s liability and require final and binding individual arbitration for any potential legal disputes that may arise. Upserve and Merchant hereby agree as follows:
1. Scope of Agreement.This Upserve Master Subscription Agreement (the “Master Subscription Agreement” or alternatively, the “Upserve Merchant Agreement”) and the order form(s) which you have executed that reference this Master Subscription Agreement and any amendments thereto (each an “Order”) (collectively, the “Agreement”) is a legal agreement between you, the entity identified on the Order (“Merchant,” “you” or “your”) and Upserve, Inc. (“Upserve,” “we,” “us” or “our”) (each a “Party” and collectively, the “Parties”). This Agreement governs Merchant’s and its Authorized Users’ subscription, purchase and/or use of the software, hardware and services identified on the Order(s) or subscribed to via In-App Subscriptions, which may include, but is not limited to: (i) certain cloud-hosted, web-based, software-as-a-service offerings and downloadable applications (the “SaaS Services”); (ii) hardware (the “Hardware”); and (iii) installation services, professional services, integration services and customer support (the “Professional Services”) (SaaS Services, Hardware and Professional Services shall collectively be referred to as the “Services”), and updates or enhancements that may be made to the Services from time-to-time.
2. Orders. At any time following Merchant’s execution of the initial Order, Merchant may subscribe to or purchase additional products or services offered by Upserve, or otherwise expand the scope of Services provided to Merchant, upon Upserve’s receipt and acceptance of an amendment to an existing Order or additional Orders. Additionally, Merchant may have the option to subscribe to certain additional Services or features within the Services through the Services (an “In-App Subscription”) which shall amend and co-term with Merchant’s existing Order with respect to such Services or features subscribed to.
3. Rights of Use. Subject to the terms of this Agreement, Upserve grants to Merchant: (i) a limited, non-exclusive, revocable, non-transferable, non-sublicensable right to use and access, and to have Authorized Users use and access, the Services (including the Customer Data, if applicable) for the sole benefit of Merchant’s business; and (ii) a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to allow Merchant and its Authorized Users to download the mobile and/or tablet applications used to access the SaaS Services, if applicable, for the duration of the Order Term. Merchant agrees and acknowledges that the SaaS Services are on-line, subscription-based products and that Upserve may make changes to components of the SaaS Services from time-to-time. Other than the rights granted to Merchant in this Section 3, Upserve reserves all right, title and interest in the Services.
4. Account and Sub-Account Creation and Security.
a. Account Creation. Merchant must create and activate a subscription account with Upserve to use the Services (the “Account”). In order to create an Account, Merchant must register and maintain a valid credit card and/or bank account with Upserve and provide Upserve with required data elements (the “Account Information”). Any Account Information provided by Merchant must be accurate, current and complete, and Merchant must ensure that such Account Information remains accurate, current and complete during the Order Term. Upserve reserves the right to suspend or terminate Merchant’s Account in the event that Merchant provides inaccurate, untrue or incomplete Account Information, or otherwise fails to comply with the Account registration requirements.
b. Sub-Account Creation. Merchant may establish subordinate accounts (each a “Sub-Account”) for the benefit of and use by authorized employees, representatives, contractors, consultants, agents and other users who are acting for Merchant’s benefit or on Merchant’s behalf (each an “Authorized User” and collectively, the “Authorized Users”). In order to create a Sub-Account, Merchant must provide Upserve with required data elements (the “Sub-Account Information”). Any Sub-Account Information provided by Merchant must be accurate, current and complete during the existence of such Sub-Account. Upserve reserves the right to suspend or terminate any Sub-Account in the event that Merchant or an Authorized User provides inaccurate, untrue or incomplete Sub-Account Information, or otherwise fails to comply with the Sub-Account registration requirements. Merchant acknowledges and agrees that Upserve offers Sub-Accounts purely as a convenience to Merchant, and that Merchant is exclusively responsible for: (i) ensuring that any Authorized User permitted to access a Sub-Account will do so only on Merchant’s behalf (not, for example, for the Authorized User’s own purposes or the benefit of third-parties); (ii) that such Authorized User fully complies with the terms of this Agreement; and (iii) monitoring Authorized Users’ access to and use of the Services.
c. Security. Merchant is fully responsible for maintaining access to, and the security and confidentiality of, the Services, the Account and any Sub-Account(s), including, but not limited to, the associated username(s) and password(s), and is fully responsible and fully liable for all activities occurring on or through the Services, the Account and any Sub-Account(s), whether authorized by Merchant or not. Upserve has no obligation to verify the identity of any person who gains access to the Services by means of an Account or Sub-Account. In the event that Merchant or an Authorized User suspects or discovers a compromise in the security of the Services, the Account or any Sub-Account(s), or unauthorized use is suspected or discovered, Merchant agrees to immediately take all necessary steps to effect the termination of the suspected Account or Sub-Account and immediately notify Upserve.
5. Use Restrictions. Merchant and its Authorized Users may not personally, or through any affiliate, employee, consultant, contractor, agent or other third-party: (i) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the Services; (ii) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Services, in whole or in part, for competitive purposes or otherwise; (iii) allow access to, provide, divulge or make available the Services to any user other than Authorized Users; (iv) write or develop derivative works based upon the Services; (v) modify, adapt, tamper with or otherwise make any changes to the Services or any part thereof; (vi) obliterate, alter or remove any proprietary or intellectual property notices from the Services; (vii) create internet links to or from the Services, or “frame” or “mirror” any content from the Services; (viii) use the Services to provide payment processing services to third-parties or otherwise use the same on a “service bureau” basis; (ix) disclose or publish, without Upserve’s prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Services; (x) use the Services in a manner not authorized under the documentation provided on Upserve’s website or in violation of any applicable law, rule or regulation; (xi) in any way access or use the Services to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Services; (xii) breach or attempt to breach the security of the Services or any network, servers, data, computers or other hardware relating to or used in connection with the Services, or any third-party that is hosting or interfacing with any part of the Services; (xiii) use or distribute through the Services any software, files or other tools or devices designed to interfere with or compromise the privacy, security or use of the Services; or (xiv) otherwise use or copy the Services except as expressly permitted herein.
6. Support, Maintenance, Updates and Beta Testing.
a. Support Services. During the Order Term, Upserve will provide Merchant with support of the Services as identified on the Order. In the event that Merchant requires support of the Services, Merchant may access the various support articles made available by Upserve, or contact Upserve’s support team through telephone, live chat or email, all of which can be found on Upserve’s website at https://www.upserve.com/support-services/.
b. Maintenance and Updates. From time-to-time it may be necessary for Upserve to perform scheduled or unscheduled repairs or maintenance of the SaaS Services. In the event that scheduled maintenance of the SaaS Services is anticipated, Upserve will use reasonable efforts to: (i) notify Merchant of the scheduled maintenance; and (ii) perform such scheduled maintenance during the period(s) of lowest anticipated usage of the SaaS Services. In the event that Upserve releases updates to the downloadable applications used to access the SaaS Services, Merchant acknowledges and agrees that such updates may be critical or mandatory in nature and may require Merchant to download and install such updates in order to continue accessing the Services. MERCHANT AGREES THAT UPSERVE SHALL IN NO EVENT BE LIABLE TO MERCHANT OR ANY THIRD-PARTY FOR ANY INTERRUPTION, SUSPENSION OR TERMINATION OF ANY ACCOUNT OR SUB-ACCOUNT OR ACCESS TO THE SERVICES, INFORMATION ASSOCIATED WITH AN ACCOUNT OR SUB-ACCOUNT OR FOR ANY LOSSES OR DAMAGES OF ANY KIND RESULTING FROM MERCHANT’S FAILURE TO DOWNLOAD AND INSTALL AN UPDATE.
c. Beta Testing. From time-to-time, Upserve may offer Merchant the opportunity to participate in beta testing of new services, devices, software and features that may not have been thoroughly tested for quality assurance. IN THE EVENT THAT MERCHANT ACCEPTS AN OFFER FROM UPSERVE TO PARTICIPATE IN ANY BETA TESTING, MERCHANT AGREES THAT UPSERVE SHALL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES OF ANY KIND THAT MERCHANT MAY INCUR AS A RESULT OF SUCH PARTICIPATION, INCLUDING, BUT NOT LIMITED TO, ANY INTERRUPTION OF THIRD-PARTY SERVICES, LOSS OR DAMAGES TO MERCHANT’S HARDWARE OR LOSS OF OR DAMAGE TO DATA, INCLUDING TRANSACTION OR CARD INFORMATION.
7. Use of Third-Party Services.
a. Third-Party Services. From time-to-time during the Order Term, Upserve may recommend, provide Merchant with access to, or assist in enabling third-party software, applications, hardware, products or services (the “Third-Party Services”), which will be done at Upserve’s sole discretion, and which in certain circumstances may be revoked at any time. Merchant acknowledges and agrees that additional Professional Services may be required for Upserve to enable certain Third-Party Services and provide Merchant with continued interoperation with the Third-Party Services and the Services, and such Professional Services may give rise to additional Fees. Merchant acknowledges and agrees that certain categories of Third-Party Services are required to receive the full functionality of certain Services (including, but not limited to, point of sale hardware, internet connectivity and an integrated payment processing account), but that Upserve’s Services may only work with certain Third-Party Services. Third-Party Services are made available only as a convenience to Merchant, and Merchant’s purchase, access to or use of any Third-Party Services is solely between Merchant and the provider of the Third-Party Services (the “Third-Party Services Provider”), who is solely responsible for the Third-Party Services, the content therein, any warranties to the extent that such warranties have not been disclaimed and any training, support or maintenance for the Third-Party Services. Any use of Third-Party Services by Merchant is entirely at Merchant’s own risk and discretion and is subject to the terms of Merchant’s agreements with such Third-Party Services Provider(s), and as such, it is Merchant’s responsibility to read the terms and conditions and/or privacy policies applicable to such Third-Party Service prior to use. Upserve does not provide any warranties with respect to Third-Party Services, and Merchant acknowledges that Upserve has no control over Third-Party Services and shall not be liable to Merchant or anyone else for such Third-Party Services or any loss of Services, interruptions, loss of data or damages of any kind arising from or in connection with such Third-Party Services. Merchant is solely responsible for any fees charged by Third-Party Services Providers for Merchant’s use of the Third-Party Services. Merchant acknowledges and agrees that additional Professional Services and corresponding Fees may be required for the enablement and continued use of certain Third-Party Services. For the avoidance of doubt, the payment processing services which may be offered to Merchant by Upserve (the “Upserve Payments”) are not considered a Third-Party Service under this Section 7; however, the Parties’ relationship with respect to the Upserve Payments is governed by a separate agreement between Merchant, Upserve and Upserve’s processing partner(s).
b. Use of Certain Third-Party Services with Financing. If Merchant qualifies for and obtains financing for all or a portion of the Services on Merchant’s Order from Upserve and/or one of Upserve’s financing partners, Merchant acknowledges and agrees that Merchant will be required to use Upserve Payments during the applicable Order Term in order to process card payments with the Services. For all such Orders, Upserve shall have no obligation to provide Merchant with access to, or assist in enabling, any Third-Party Services providing payment processing services similar to or competitive with the Upserve Payments, and any such decisions shall be made in Upserve’s sole discretion.
c. Use of Data. In the event that Merchant installs or enables a Third-Party Service for use with the Services, Merchant grants Upserve permission to allow the Third-Party Services Provider to access Merchant Data and/or Customer Data and to take any other actions as required for the interoperation of the Third-Party Services with the Services, and any exchange of data or other interaction between Merchant and the Third-Party Services Provider. Merchant shall ensure that such Third-Party Services Provider implements and complies with reasonable security measures in handling Customer Data. If any Customer Data is collected directly by Merchant or a Third-Party Services Provider, Merchant shall ensure that it and/or such Third-Party Services Provider adopts, posts and processes the Customer Data in conformity with applicable posted privacy policies and all applicable laws. Upserve is not responsible for any disclosure, modification or delegation of Merchant’s data or other information, or for any corresponding losses or damages Merchant may suffer as a result of access by a provider of Third-Party Services to Merchant’s data or other information.
8. Security. Upserve has implemented technical and organizational measures designed to secure the Services and data from accidental loss and unauthorized access, use, alteration or disclosure; however, Upserve cannot guarantee that unauthorized third-parties will never be able to defeat those measures to gain access to the Services, and as such, Merchant understands that its use of the Services is at Merchant’s own risk. Merchant will use reasonable measures consistent with applicable laws and regulations to protect the security of the Services, Merchant’s Account and Sub-Accounts, Customer Data and Merchant Data in order to prevent a data breach. In the event that Merchant or an Authorized User becomes aware of or suspects any unauthorized access to or use of the Services, an Account or Sub-Account, Customer Data or Merchant Data, Merchant shall immediately notify Upserve along with a detailed description of the actual or suspected data breach. Merchant and Upserve agree to fully cooperate with each other in the event of a data breach, and Merchant will bear all associated expenses incurred by Upserve to comply with applicable laws and regulations (including, but not limited to, any data breach laws) arising from any unauthorized access or acquisition of Merchant Data or Customer Data while such data is in Merchant’s reasonable possession, custody or control.
9. Fees, Payment and Taxes.
a. Fees. In exchange for the Services, Merchant agrees to pay to Upserve the applicable fees for the Services (including applicable Meraki License Fees, Additional Implementation Fees, Cancellation Fees, Gateway Fees and other fees defined herein) plus applicable shipping fees and Taxes (the “Fees”) in the currency listed on the applicable Order. Merchant’s Order(s) may include Fees attributable to certain Services which are paid to Upserve on a recurring monthly basis, including, but not limited to, the SaaS Services (the “Subscription Services”) and certain Services which are paid to Upserve in a non-recurring, one-time manner, including, but not limited to, Hardware, certain Professional Services, Additional Implementation Fees and Cancellation Fees (the “Non-Recurring Services”). Fees attributable to Subscription Services are paid in advance and will be billed on thirty (30) day intervals (each such date is referred to as a “Billing Date”). Fees attributable to Non-Recurring Services shall be paid upon Merchant’s execution of an Order referencing such Non-Recurring Services, unless otherwise provided for within Merchant’s Order. Any amounts past due from Merchant under this Agreement shall accrue interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or, if less, the maximum rate allowed by applicable law, in addition to all reasonable expenses associated with the collection thereof. Except as otherwise expressly provided within this Agreement, or in the Upserve Hardware Return and Exchange Policy (which is hereby incorporated into this Agreement), all Fees are non-refundable, non-cancelable and non-creditable. In making payment of Fees, Merchant acknowledges that Merchant is not relying upon future availability of any Service beyond the current Order Term or any upgrades or future enhancements to the Services.
b. Payment. Merchant authorizes Upserve to charge any credit card and/or bank account provided by Merchant (the “Payment Information”), all amounts arising under this Agreement (including Fees and Early Termination Fees, if applicable), until all of Merchant’s payment obligations hereunder have been paid in full. Merchant must keep its Payment Information current at all times, and in the event that Merchant wishes to make changes to its Payment Information, it may contact [email protected] In the event that Merchant’s Payment Information cannot be verified, is invalid, is over-limit or is not otherwise acceptable, Upserve may, at its discretion: (i) suspend or cancel the Services without notice; (ii) generate invoices for payment; (iii) pass through to Merchant any fees incurred by Upserve as a result of a rejected payment attempt (including, but not limited to, ACH rejection fees) in the exact amount as charged; and/or (iv) in the event that Merchant is using Upserve Payments, deduct any amounts due from Merchant’s settlement funds.
c. Meraki License Fees. In the event that Merchant’s Order(s) include the purchase of a Meraki router, Merchant acknowledges and agrees that the use of such Hardware requires the purchase of annual licenses (each a “Meraki License Fee”). Merchant’s Order includes the Meraki License Fee for the first year of the applicable Order Term; however, Merchant shall be responsible for paying the Meraki License Fees to Upserve on an annual basis for the remainder of the Order Term at the then-current Meraki License Fee price as passed through to Merchant by Upserve.
d. Implementation Services. In the event that Merchant’s Order(s) include On-Site Installation and/or Remote Installation (collectively, the “Implementation Services”), Merchant understands and acknowledges that such Implementation Services are fixed rate and inclusive of certain defined services, the details of which can be found at https://www.upserve.com/implementation/ (the “Implementation Site”), and in the case of On-Site Installation, the quoted price is an estimate based on the estimated labor and materials costs required for the technician to complete such On-Site Installation. Additional fees may apply on a case-by-case basis in order to complete the Implementation Services, including, but not limited to: (i) additional Hardware (e.g. routers, switches and access points); (ii) cabling labor; (iii) cabling materials (e.g. termination hardware and mounting brackets); and (iv) the performance of services which deviate from those items explicitly included within the Implementation Services as identified on the Implementation Site (e.g. performance of certain non-standard menu builds outside of Merchant’s use of the provided menu template) (the “Additional Implementation Fees”). In the event that additional services giving rise to Additional Implementation Fees are required, Upserve will provide Merchant with a quote on a time and materials basis for such Additional Implementation Fees, and upon acceptance, Merchant agrees to pay Upserve such Additional Implementation Fees. It is Merchant’s responsibility to ensure that all site requirements are met in order to prevent cancellation of Merchant’s scheduled Implementation Services. In the event that any Implementation Services are cancelled by Merchant for any reason with less than forty-eight (48) hours’ prior written notice to Upserve, Merchant agrees to pay Upserve a cancellation fee (the “Cancellation Fee”) on a per-cancelled-event basis in an amount equal to the applicable cancellation fee amount at the time of cancellation, which can be found on the Implementation Site. In the event that Merchant has financed the Implementation Services as contemplated in Section 9(f) hereof, Additional Implementation Fees and Cancellation Fees will not be included in the Financed Fees, and as such, payment for such Additional Implementation Fees and Cancellation Fees shall be made to Upserve in accordance with Sections 9(a) and 9(b) hereof. Merchant understands and acknowledges that certain In-App Subscriptions may require Implementation Services, as identified at the time of subscription, and by subscribing to such In-App Subscription, Merchant agrees to pay the Implementation Fees with respect to such In-App Subscription under the terms of this Agreement.
e. Gateway Fees. If at any point during the Order Term Merchant uses the Upserve Point of Sale Services in order to process payments with a Third-Party Services Provider of payment processing services, Merchant will be assessed a Fee in the amount of ninety-nine dollars ($99.00) per month for each month in which Merchant processes a transaction with such Third-Party Services Provider (the “Gateway Fees”).
f. Financing. If Merchant qualifies for and obtains financing for all or a portion of the Services on Merchant’s Order from Upserve and/or one of Upserve’s financing partners, Merchant will pay such financing party directly for the Fees attributable to the financed Services (the “Financed Fees”) during the designated term of Merchant’s financing (the “Financing Term”) in accordance with Merchant’s agreement(s) with such financing party. Merchant acknowledges and agrees that Merchant’s obligation to pay Financed Fees to any such financing party may be independent from this Agreement and survives any termination or expiration of this Agreement. Following the end of the Financing Term, Merchant agrees to pay the relevant Fees to Upserve in the manner contemplated in Section 9(a) hereof for the remainder of the Order Term, as applicable.
g. Taxes. Fees are exclusive of applicable federal, state, local or other governmental sales, use, property, value added, goods and services taxes, fees or charges now in force or enacted in the future (the “Taxes”), unless otherwise expressly indicated by Upserve. Merchant is responsible for all applicable Taxes that arise from or as a result of Merchant’s subscription to and/or purchase of the Services. If Merchant is not charged Taxes by Upserve, Merchant is fully and solely responsible for determining if Taxes are payable, and if so, calculating and self-remitting Taxes to the appropriate tax authorities in Merchant’s jurisdiction, along with any penalties, late charges or interest associated with the Taxes. Merchant represents and covenants that it will indemnify Upserve and its parent, subsidiary and affiliate entities and their respective officers, directors, agents and employees for any liability or expense that Upserve or its parent, subsidiary and affiliate entities and their respective officers, directors, agents or employees may incur in connection with such Taxes.
h. Change in Fees. Upserve reserves the right to change Fees upon thirty (30) days’ advance notice to Merchant, and Merchant’s continued use of the Services following such change will be deemed an acceptance of the change unless Merchant otherwise terminates this Agreement prior to the effective date of such change; provided, however, that in the event that such notice provides Merchant with alternative recourse to prevent such a change in Fees, such notice shall control and Merchant shall not be entitled to terminate this Agreement. In the event that Merchant terminates this Agreement due to a change in Fees prior to the effective date of such change as contemplated within the preceding sentence, the Early Termination Fee shall not apply, and Merchant shall only be liable for the payment of Fees for Services provided to Merchant through the effective date of termination. For the avoidance of doubt, this Section 9(h) shall not apply to Additional Implementation Fees as contemplated in Section 9(d) hereof, Gateway Fees as contemplated in Section 9(e) hereof or changes in Fees upon the renewal of an Order as contemplated in Section 11(b) hereof.
i. Disputing Fees. Merchant is responsible for promptly and carefully reviewing amounts invoiced and its payment of Fees. In the event that Merchant wishes to dispute any Fees charged to or paid by Merchant under this Agreement, Merchant must provide Upserve with written notice of the dispute (the “Disputed Fees Notice”) by sending an email to [email protected] within thirty (30) days of the date that the invoice at issue was made available by Upserve (the “Dispute Timeframe”). Such Disputed Fees Notice should set out the nature of the dispute along with all available supporting documentation. In the event that Merchant provides Upserve with such a Disputed Fees Notice outside of the Dispute Timeframe, Upserve shall have no obligation to investigate or effect any adjustments to the disputed Fees, and any voluntary efforts by Upserve to assist Merchant in investigating such disputed Fees shall not create any obligation to continue such investigation or any future investigation.
10. Intellectual Property.
a. Upserve Services. The Services and the contents thereof are and will always remain the exclusive, sole and absolute property of Upserve or its licensors. Merchant does not acquire any right, title or interest in or to the Services. Upserve owns all rights in and to the trademarks, service marks, logos, trade names, domain names and other identifiers used and displayed on or in connection with the Services (aside from any Merchant Data which may be displayed therein) (the “Upserve Marks”), and Merchant agrees not to challenge, directly or indirectly, Upserve’s use, ownership or registration of the Upserve Marks. The Upserve Marks may not be used by Merchant in any way without the prior written permission of Upserve. Any rights not expressly granted herein with respect to the Services are reserved by Upserve.
b. Feedback. From time-to-time, Merchant may choose to submit comments, suggestions, enhancements, requests, information, questions, data, ideas, description of processes, modifications or other information to Upserve (the “Feedback”). Merchant hereby irrevocably assigns to Upserve all right, title and interest in and to the Feedback. Upserve may in connection with any of its Services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligations, compensation, royalty or restrictions based on intellectual property rights or otherwise. Feedback will not be considered Merchant’s Confidential Information, and nothing within this Agreement shall limit Upserve’s right to independently use, develop, evaluate or market products, whether incorporating Feedback or otherwise.
c. Merchant Data. As used within this Agreement, “Merchant Data” means all information provided by Merchant or Authorized Users through the Services, including, but not limited to, menu data, Account Information, Sub-Account Information and other information on Merchant and Authorized Users. As between Upserve and Merchant, Merchant owns Merchant Data and has sole responsibility for the legality, reliability, integrity, accuracy and quality of the Merchant Data. Merchant grants Upserve and its parent, affiliate and subsidiary entities a worldwide, non-exclusive, royalty-free, transferable, fully paid up license to use, copy, modify, create derivative works of, display and transmit Merchant Data in connection with providing and governing the Services. Merchant is solely responsible for the Merchant Data and the accuracy and legality thereof and warrants to Upserve that it has all necessary rights to use such Merchant Data in relation to the Services.
e. Application Usage Data. As used within this Agreement, “Application Usage Data” means information collected and analyzed by Upserve relating to Merchant’s and Authorized Users’ interaction with and operation of the Services, including, but not limited to, time spent using the Services; browser types and language; internet protocol addresses; device-specific information, including hardware models, operating systems and versions, unique device identifiers, mobile network information, information about the location of the device and the location of customers in relation to Merchant and the device, the device’s interaction and performance with our Services and Merchant’s customers; peripheral hardware, other third-party services and identification of other software running in connection with the Services (strictly for the purposes of anti-fraud and malware prevention purposes). As between Upserve and Merchant, Upserve owns Application Usage Data, and as such, Upserve may use such data for its own legitimate purposes and may share such Application Usage Data with third-parties without notice to Merchant.
f. Merchant and Third-Party IP. Merchant grants to Upserve a non-exclusive, worldwide, royalty free, paid-up, perpetual, irrevocable, transferable and sub-licensable license and right to use, modify, reproduce, sublicense, publicly display, distribute, broadcast, transmit, stream, publish and publicly perform: (i) Merchant’s business name, name, image, likeness, logos, trademarks, services marks, domain names and any audiovisual content, video recordings, audio recordings, photographs, graphics, artwork, text, menu items and any other content provided, specified, recommended, directed, authorized or approved to use by Merchant (collectively, the “Merchant IP”); and (ii) any third-party’s business name, name, image, likeness, logos, trademarks, service marks, domain names, audiovisual recordings, video recordings, audio recordings, photographs, graphics, artwork, text, menu items and any other content provided, specified, recommended, directed, authorized or approved for use by Merchant (collectively, the “Third-Party IP”), in each case in connection with the Services, or in all media or formats now known or hereinafter developed in order to provide and promote the Services, Upserve’s business and Merchant’s business. Any use of the Merchant IP or Third-Party IP as contemplated herein is within Upserve’s sole discretion.
g. Data Sharing. Upserve may share the Merchant IP, Third-Party IP and certain Merchant Data and/or Customer Data with Third-Party Services Providers at Merchant’s direction and to the extent that Upserve is legally allowed to share it. Merchant agrees that such use may be governed by Merchant’s agreements with such Third-Party Services Providers, and Upserve is not responsible for the use or treatment of such data by such Third-Party Services Providers. If Merchant instructs Upserve to share such information with Third-Party Services Providers, Merchant agrees to indemnify, defend, protect and hold Upserve and its affiliates harmless from and against any and all third-party damages, losses, claims and expenses, including, but not limited to, governmental penalties and reasonable attorneys’ fees, which may be asserted against or incurred by Upserve or any affiliate arising out of or relating from the sharing, use or ownership of such data.
h. Anonymized Data. Outside of providing Merchant with the Services, Upserve may aggregate, use, disclose, compile, distribute and publish statistical or analytical data regarding the Services, Merchant Data, Customer Data and/or Application Usage Data in an aggregate and anonymized form only (the “Anonymized Data”) and may make such Anonymized Data publicly available, provided that such information does not directly identify any Confidential Information. As between Upserve and Merchant, Upserve owns all such Anonymized Data.
11. Term and Termination.
a. Agreement Term. This Agreement shall commence on the date of execution of Merchant’s initial Order and shall continue in full force and effect as to each Order until the expiration or termination of all such Orders, unless otherwise terminated earlier as provided within this Agreement.
b. Order Term; Renewal. The term of an Order will begin on the date of execution of the Order and will continue for a term of no less than the Subscription Term defined therein, which will begin on the earlier of the Subscription Start Date identified on the Order or the actual date of activation of the Services identified on the Order (the “Initial Order Term”). Following the end of an Initial Order Term, the Order shall automatically renew with respect to the SaaS Services and any recurring Professional Services to which Merchant has subscribed for successive periods equal to the length of the Initial Order Term (each a “Renewal Order Term”) (the Initial Order Term combined with all subsequent Renewal Order Terms shall be referred to as the “Order Term”). Upon renewal of an Order, the Fees relating to such renewed Services during such Renewal Order Term shall include, on a per-renewed-Services basis, an uplift equal to Upserve’s then-current list price for the renewed Services. Either Party may prevent the renewal of an Order by providing the other Party with written notice of its intent to not renew the Order at least sixty (60) days prior to the end of the then-current Order Term. In the event that Merchant intends to not renew an Order as contemplated in the preceding sentence, Merchant may send an email to [email protected] in order to provide notice of non-renewal.
c. Termination and Suspension by Upserve.
i. For Convenience. Upserve may terminate this Agreement with respect to any Order for convenience upon sixty (60) days’ prior written notice to Merchant.
ii. For Cause. Notwithstanding anything to the contrary herein, Upserve may immediately terminate this Agreement with respect to any Order and/or suspend Merchant’s and its Authorized Users’ access to the Services, at Upserve’s sole discretion, in the following instances: (1) Merchant’s non-payment of Fees; (2) Merchant’s and/or Authorized Users’ use of the Services for fraudulent or illegal purposes; (3) Merchant’s violation of any other agreement to which Upserve is a party or to which Upserve is not a party but with relates to this Agreement; (4) upon request by law enforcement or other governmental agency; (5) upon the occurrence of technical or security issues as identified in Upserve’s sole discretion; or (6) Upserve believes, in its sole discretion, that Merchant’s continued use of the Services interferes with, is harmful to, or is otherwise inconsistent with Upserve’s business.
d. Termination for Material Breach. Either Party may terminate this Agreement with respect to any Order in the event that the other Party has materially breached this Agreement, and such breach remains uncured for a period of sixty (60) days (the “Cure Period”) after written notice thereof is provided to the breaching Party by the non-breaching Party. The Parties acknowledge and agree that in order to constitute valid notice of an alleged material breach of this Agreement as contemplated in the preceding sentence, such notice shall: (i) be sent in the manner proscribed in Section 18(h) hereof; (ii) shall specifically reference the breaching Party’s “material breach” of this Agreement; (iii) shall describe the alleged material breach in sufficient detail to put the breaching Party on notice; and (iv) shall provide the breaching Party the opportunity to cure the alleged material breach during the Cure Period. During the Cure Period, the non-breaching Party shall use commercially reasonable efforts to cooperate with the breaching Party in furtherance of curing such alleged material breach, as may be reasonably requested.
12. Effect of Termination and Non-Renewal.
a. Early Termination Fee. Subject to the terms of this Agreement, Merchant acknowledges and agrees that by executing an Order, Merchant is obligated to pay all of the Fees identified on the Order for the duration of the applicable Order Term, and that any Hardware discounts offered to Merchant and identified on an Order are contingent upon the foregoing. In the event that Merchant terminates this Agreement with respect to any Order prior to the end of the applicable Order Term (with the exception of a termination under Sections 9(h) or 11(d) hereof), or in the event that Upserve terminates this Agreement pursuant to Sections 11(c)(ii)(1), 11(c)(ii)(2) or 11(d) hereof, Upserve will: (i) accelerate the remaining Fees due, which shall be calculated as the sum of: (a) any non-recurring Fees relating to the terminated Order(s) which have not been paid to Upserve as of the effective date of such termination; and (b) the product of the recurring Fees relating to the terminated Order(s) and the number of months then outstanding on the applicable Order Term; and (ii) charge to Merchant the difference between the list price and discounted price for any discounted Hardware identified on the applicable Order (collectively, the “Early Termination Fee”). Early Termination Fees shall become due immediately upon an applicable termination and paid to Upserve in the manner contemplated in Section 9(b) hereof.
b. Effect of Termination. Upon the non-renewal or termination of an Order and/or this Agreement for any reason, Merchant’s right to use and access the recurring Services covered under the applicable Order(s) and all licenses granted hereunder will immediately terminate, and: (i) Merchant shall immediately cease all access to the terminated recurring Services, and if applicable, uninstall any applications used to access the SaaS Services; (ii) Merchant shall, as directed by Upserve, destroy or return to Upserve the Customer Data in Merchant’s possession, custody or control, or in the possession, custody or control of any third-party; and (iii) upon Merchant’s written request, which Upserve must receive within thirty (30) days of the effective date of termination, and upon receipt of all Fees due under this Agreement, and in compliance with applicable law, Upserve will provide Merchant with a record of Merchant’s basic transactions for up to the past year, if applicable. For the avoidance of doubt, upon the non-renewal or termination of an Order, any additional Orders of Merchant, along with this Agreement with respect to such Orders, will continue in full force and effect until otherwise terminated or not renewed. Merchant acknowledges and agrees that following the non-renewal or termination of an Order or this Agreement for any reason, Upserve shall have no obligation to retain Merchant Data, and may irretrievably destroy applicable Merchant Data in the event of such non-renewal or termination.
c. Survival. Upon the non-renewal or termination of an Order and/or this Agreement for any reason, all sections of this Agreement which by their nature should survive non-renewal or termination will survive, including, but not limited to: Section 5 (Use Restrictions), Section 9 (Fees, Payment and Taxes) (solely with respect to activity or liability occurring up to the effective date of termination), Section 10 (Intellectual Property), Section 12 (Effect of Termination), Section 14 (Disclaimer; Limitation of Liability), Section 15 (Indemnification), Section 16 (Confidentiality), Section 17 (Arbitration) and Section 18 (General).
13. Merchant Representations and Warranties. Merchant represents and warrants to Upserve that: (i) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement; (ii) the individual executing the Order on behalf of Merchant has all necessary authority to bind Merchant to the terms of this Agreement; (iii) Merchant and its Authorized Users are and will remain in compliance with this Agreement and all applicable laws and regulations; (iv) Merchant has the right to grant to Upserve the licenses provided herein; and (v) in the event that Merchant’s Order(s) include Implementation Services, Merchant is the legal owner of the property at which the Implementation Services will occur or otherwise has the full legal authority to allow all activities incidental to the Implementation Services to occur without approvals from any other person or entity.
14. DISCLAIMER; LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, UPSERVE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, AND EXPRESSLY DISCLAIMS ANY AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, THE DATA AND THIRD-PARTY SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, THOSE ARISING THROUGH COURSE OF DEALING OR CONDITIONS OF UNINTERRUPTED OR ERROR-FREE ACCESS OR USE, ALL OF WHICH ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. MERCHANT AND MERCHANT’S AUTHORIZED USERS ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES, ASSOCIATED DATA AND THIRD-PARTY SERVICES IS AT MERCHANT’S AND AUTHORIZED USERS’ OWN RISK, THAT THE CALCULATION AND REPORTING FUNCTIONALITY WITHIN THE SERVICES IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE EXPERT ADVICE TO BE RELIED UPON FOR COMPLIANCE PURPOSES (INSTEAD, MERCHANT IS ADVISED TO CONSULT LICENSED PROFESSIONALS FOR THESE PURPOSES), AND THAT EVERYTHING IN THE SERVICES ARE PROVIDED WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, UPSERVE MAKES NO PROMISE (I) AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES, SERVICES FEATURES (INCLUDING, BUT NOT LIMITED TO, OFFLINE MODE AND PAYROLL AND TAX CALCULATION) OR ANY DATA WITHIN THE SERVICES, ALL OF WHICH ARE PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS; (II) AS TO ANY THIRD-PARTY SERVICES PROVIDER OR ANY OF ITS PRODUCTS OR SERVICES, WHETHER OR NOT UPSERVE MAY HAVE DESIGNATED IT OR ITS THIRD-PARTY SERVICES AS “CERTIFIED,” “PREFERRED,” “VALIDATED” OR OTHERWISE; (III) THAT THE USE OF THE SERVICES WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE OR OPERATED IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (IV) THAT THE SERVICES WILL MEET MERCHANT’S REQUIREMENTS OR EXPECTATIONS; (V) THAT ANY MERCHANT DATA OR CUSTOMER DATA WILL BE ACCURATELY OR RELIABLY STORED; (VI) THAT ALL ERRORS OR DEFECTS WILL BE CORRECTED; OR (VII) THAT THE SERVICES WILL BE FREE OF ANY VIRUS OR OTHER HARMFUL COMPONENT; PROVIDED, HOWEVER, THAT UPSERVE WILL NOT KNOWINGLY INSERT ANY SUCH HARMFUL CODE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE SPECIFIC LIMITATIONS OF LIABILITY THROUGHOUT THIS AGREEMENT, IN NO EVENT SHALL UPSERVE BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUE, PROFITS, GOODWILL, USE, DATA, PROPERTY DAMAGE, PERSONAL INJURY OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE OR UNAVAILABILITY OF THE SERVICES, AN ACCOUNT OR ANY SUB-ACCOUNT(S), OR OTHERWISE ARISING IN CONNECTION WITH THE SERVICES OR ANY THIRD-PARTY SERVICES, REGARDLESS OF THE CAUSE OF ACTION. UPSERVE’S TOTAL LIABILITY, IF ANY, FOR DAMAGES BASED UPON OR ARISING OUT OF THE SERVICES OR THIS AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL FEES PAID TO UPSERVE BY MERCHANT UNDER THE ORDER(S) GIVING RISE TO SUCH LIABILITY IN THE THREE (3) MONTH PERIOD PRECEDING THE INCIDENT UPON WHICH THE CLAIM OR CLAIMS ARE BASED.
15. Indemnification. In addition to the specific indemnification obligations elsewhere in this Agreement, Merchant agrees to indemnify, defend and hold Upserve and its parent, subsidiary and affiliate entities, and their respective officers, directors, agents and employees, harmless from and against any and all third-party suits, actions, claims, demands, penalties, charges, costs or losses of any kind, including, but not limited to, reasonable attorneys’ fees and collection costs (collectively, the “Losses”), to the extent such Losses result from or arise out of: (i) Merchant’s or Authorized Users’ use of the Services, Merchant Data and Customer Data, whether or not such use is wrongful or improper; (ii) Merchant’s business; (iii) any actual or alleged breach of Merchant’s representations, warranties or obligations under this Agreement; (iv) Merchant’s or Authorized Users’ violation of any law, rule or regulation or the rights of a third-party; (v) any third-party’s access to and/or use of the Services under an Account or Sub-Account; (vi) Merchant’s use of Third-Party Services or relationship with a Third-Party Services Provider; (vii) disputes between Merchant and Merchant’s employees or Merchant and Customers; or (viii) Merchant’s Taxes.
16. Confidentiality. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has, or may in the future, disclose certain Confidential Information under this Agreement or in connection with the Services. All such Confidential Information shall remain the exclusive and confidential property of the Disclosing Party. Except as otherwise provided within this Agreement, Receiving Party shall not disclose, use or misappropriate Confidential Information of the Disclosing Party, and shall protect such Confidential Information by using the same degree of care as Receiving Party uses to protect its own confidential or proprietary information of a like nature, but not less than a reasonable degree of care. Receiving Party shall limit the use of and access to Disclosing Party’s Confidential Information to Receiving Party’s employees, contractors or authorized representatives who need to know such Confidential Information and who have entered into binding obligations of confidentiality substantially similar to the obligations set forth herein. Notwithstanding the foregoing, Receiving Party may disclose Confidential Information pursuant to appropriate statutory or regulatory authority or court order, provided Disclosing Party is given prompt written notice of such requirement prior to such disclosure. Upon written request of Disclosing Party at any time, Receiving Party shall turn over to Disclosing Party all Confidential Information of Disclosing Party, all documents or media containing the Confidential Information and any and all copies or extracts thereof, or destroy the Confidential Information and any and all extracts thereof (provided, however, that Upserve may retain certain Confidential Information for regulatory purposes or in back-up files, provided that Upserve’s confidentiality obligations hereunder continue to apply). For the purposes of this Agreement, “Confidential Information” shall mean such information which has been marked “trade secret,” “confidential” or “proprietary,” or with words of similar import, and that which the Receiving Party should have considered under the circumstances of its disclosure to be trade secret, confidential or proprietary. Without limiting the foregoing, and for the avoidance of doubt, Upserve’s Confidential Information includes, but is not limited to, the terms (but not the existence of) this Agreement, all trade secrets, software, source code, object code, specifications, documentation, business plans, merchant lists and merchant-related information, financial information, auditors reports, proposals, Customer Data, Application Usage Data, results from testing or benchmarking the Services, product roadmap, data and other information of Upserve and its licensors relating to or embodied in the Services. Information will not be considered Confidential Information to the extent that: (i) it is or becomes a matter of public knowledge through no fault of Receiving Party; (ii) it was in the Receiving Party’s possession or known by it prior to receipt from Disclosing Party; (iii) it was rightfully disclosed to Receiving Party by a third-party without restriction; or (iv) it is independently developed by Receiving Party without use of such Confidential Information.
17. Binding Individual Arbitration.
a. Arbitration. Except as specifically stated within this Agreement, Upserve and Merchant agree that any and all disputes or claims that may arise between Merchant and Upserve arising out of or in any way relating to this Agreement or the Services (each a “Dispute”) shall be resolved exclusively through final and binding arbitration; provided, however, that Merchant may assert qualifying individual claims regarding a Dispute in a small claims court in Providence County, Rhode Island, and provided that such claims remain in small claims court and proceed only on an individual, non-class or non-representative basis. ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. UNLESS OTHERWISE EXPLICITLY PROVIDED FOR HEREIN, THE PARTIES WAIVE ANY RIGHT TO HAVE THEIR CASES DECIDED BY A JURY AND WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION IN REGARDS TO ANY DISPUTE. Any action or proceeding brought forward by a Party (each a “Disputing Party”) relating to any Dispute must commence within one (1) year after the cause of action accrues. If any provision of this Section 17 is found unenforceable, the unenforceable provision will be severed and replaced with an enforceable provision that comes closest to expressing the intention of the unenforceable provision, and the remaining arbitration terms will be enforced (provided, however, that in no event will there be a class or representative arbitration, and in the event that such is held to be unenforceable, the entirety of this Section 17 shall be null and void). Subject to and without waiver of the arbitration provisions herein, this Section 17 shall not preclude a Disputing Party from obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided, however, that any further relief shall be pursued by such Disputing Party through an arbitration proceeding under this Section 17. Subject to and without waiver of the arbitration provisions herein, the Parties agree that any judicial proceedings will be brought in, and the Parties hereby consent to the exclusive jurisdiction and venue in, the state courts in Providence, Rhode Island or federal courts in the State of Rhode Island.
b. Procedure. All Disputes will be resolved finally and exclusively by binding individual arbitration with a single neutral arbitrator (the “Arbitrator”) and will be administered by the American Arbitration Association (the “AAA”) (https://www.adr.org/) (the “AAA Site”) pursuant to its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes, the Federal Arbitration Act (9 U.S.C. §§ 1-16) and this Section 17 (the terms of which shall control in the event of an inconsistency). To begin an arbitration proceeding, the Disputing Party must submit the Dispute by utilizing the forms available on the AAA Site, and simultaneously sending a copy of the completed form(s) to the other Party. The arbitration will be conducted based upon written submissions unless the Disputing Party requests and/or the Arbitrator determines that a telephone or in-person hearing is necessary. In the event that an in-person hearing is requested and/or determined to be necessary, such hearing shall take place in Providence, Rhode Island. The Arbitrator shall be responsible for determining all threshold arbitrability issues, including, but not limited to issues relating to whether this Agreement (or any aspect thereof) is enforceable, unconscionable or illusory and any defense to arbitration, including, but not limited to, waiver, delay, laches or estoppel. The Arbitrator’s award will be binding on the Parties and may be entered as a judgment in any court of competent jurisdiction. While an Arbitrator may award relief (including, but not limited to, monetary, declaratory or injunctive relief), the Arbitrator may do so only with respect to the individual Party seeking relief and only to the extent necessary to provide relief warranted by the individual Party’s claim. The Arbitrator shall be required to issue a reasoned decision in writing, explaining the Arbitrator’s essential findings and conclusions upon which an award is based (if any). An Arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect. Payment of all filing, administration, Arbitrator and attorneys’ fees will be governed by the rules of the American Arbitration Association. All aspects of such an arbitration proceeding, along with any decision, written decision and award will be considered Confidential Information under the terms of this Agreement. For the purposes of this Section 17, references to Merchant and Upserve also include their respective parent, subsidiary and affiliate entities, agents, employees, predecessors, successors and assigns, as well as Authorized Users or other beneficiaries of the Services.
a. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties with respect to its subject matter (excluding, however, any services, such as Upserve Payments, for which Merchant has a separate agreement with Upserve that is explicitly separate from the terms of this Agreement) and supersedes and overrides all prior agreements. In the event of a conflict between any Order(s) and the terms of this Master Subscription Agreement, the Order(s) shall control once accepted by Upserve.
b. Updates to Master Subscription Agreement. Upserve may update or modify this Master Subscription Agreement from time-to-time, including any referenced policies and other documents. In the event that Upserve makes material changes to the terms of this Master Subscription Agreement, Upserve will post the updated Master Subscription Agreement on its website (which will be effective immediately upon posting unless otherwise stated) and may provide Merchant with notice as appropriate under the circumstances (by, for example, sending Merchant notice via email or through the Services). Upon such notice, Merchant’s and its Authorized Users’ continued use of the Services constitute Merchant’s acceptance of such changes. Notwithstanding the foregoing, in the event that any Order is amended or renewed past its Initial Order Term or any Renewal Order Term, as applicable, upon amendment or renewal of such Order the then-current Master Subscription Agreement will apply. Any such updates to the Master Subscription Agreement will not apply to Merchant to the extent that: (i) the changes concern matters which are the subject of an actual Dispute between Merchant and Upserve as of the date such changes take effect; and (ii) Upserve has actual notice of such Dispute as of the date such changes take effect.
c. Waiver. The failure of either Party to insist upon strict compliance with any term of this Agreement shall not be construed as a waiver with regard to any subsequent failure to comply with such term or provision.
d. Severability. Unless otherwise provided for herein, if any provision(s) of this Agreement are determined to be invalid or unenforceable under applicable law, then such provision(s) will be changed and interpreted to accomplish the objectives of such provision(s) to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.
e. Assignment. Upserve may, without notice or consent from Merchant, assign, transfer or convey this Agreement, whether by direct assignment, change of control, operation of law or other transaction, to any third-party, successor in interest, related party or affiliate of Upserve (each an “Assignee”), and that such Assignee may rely upon Merchant’s representations and enforce Merchant’s obligations under this Agreement. In contrast, this Agreement is personal to Merchant, and Merchant may not assign its rights or obligations under this Agreement to anyone without the prior written consent of Upserve.
f. Relationship of the Parties. The Parties hereto expressly understand and agree that each Party is an independent contractor in the performance of each and every part of the Agreement, and that no joint venture, partnership, employment or agency relationship exists between Upserve and Merchant as a result of this Agreement.
g. Force Majeure. Neither Party shall be in default of its obligations under this Agreement, or liable for any delay or failure to perform relating to such obligations (including, but not limited to, disruptions or outages in the Services), to the extent that performance of such obligations result from causes outside the reasonable control of such Party, including, without limitation, internet outages or interruptions, strikes, labor disputes, rebellions, revolutions, embargoes, earthquakes, fires, floods, wars, terrorism, riots, government sanctions, acts of God, acts of civil or military authorities and acts or omission of carriers or suppliers (each a “Force Majeure Event”). In the event of a Force Majeure Event, the non-performing Party shall use best efforts to recommence its obligations under this Agreement as soon as possible.
h. Notices. Any notice or other communication required or permitted under this Agreement shall be in writing and deemed to have been given: (i) upon receipt by personal delivery, delivery by overnight courier with signature acknowledgment of receipt or delivery by certified mail; (ii) the second business day after mailing via first class mail; or (iii) immediately if sent by email or through a notification delivered via the SaaS Services. Unless otherwise provided for herein, all notices to Upserve shall be directed to Upserve via email to [email protected] All notices to Merchant shall be directed to the physical address(es) and/or email address(es) provided within this Agreement. Either Party may designate, by notice to the other, substitute addresses or email addresses, and thereafter, notices are to be directed to such substitute addresses or email addresses.
i. Electronic Signatures. Original signatures transmitted and received via electronic transmission are true and valid signatures and shall bind the Parties to the same extent as an original signature.
j. Governing Law. This Agreement and any Disputes will be governed by and construed in accordance with the applicable laws of the State of Rhode Island without regard to its choice of law or conflicts of law principles. Each Party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the binding individual arbitration provisions of Section 17 must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal courts in Providence, Rhode Island, and each Party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Providence, Rhode Island, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other Party.
k. Headings. The headings used in this Agreement are for reference only and do not define, limit or otherwise affect the meaning of any provision hereof.