Because terms of services are often complicated, we tried our best to make it easy to read. However, as it is a legal document, some parts may still be hard to understand at first hand. If you have any question, please feel free to contact us.
THESE TERMS OF SERVICE AND THE SALES ORDER REFERENCING THESE TERMS OF SERVICE (THE “SALES ORDER”, AND TOGETHER WITH THESE TERMS OF SERVICE, “AGREEMENT”) DESCRIBE THE TERMS AND CONDITIONS ON WHICH PROCESSOUT INC. (“PROCESSOUT”) PROVIDES ITS SERVICES TO THE CUSTOMER (AS DEFINED IN THE SALES ORDER) ACCESSING AND INTEGRATING PROCESSOUT’S PROPRIETARY APPLICATION PROGRAMMING INTERFACES (THE “API”) AND/OR ONLINE DATA ANALYTICS TOOLS, OR OTHERWISE RECEIVING THE BENEFIT OF PROCESSOUT’S SERVICES. BY INDICATING ACCEPTANCE OF THIS AGREEMENT OR BY OTHERWISE USING THE SERVICE, CUSTOMER IS ENTERING INTO A LEGALLY BINDING AGREEMENT WITH PROCESSOUT.
IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, CUSTOMER MUST NOT COMPLETE THE ORDER PROCESS AND MUST NOT USE THE SERVICE. TERMS NOT DEFINED HEREIN SHALL HAVE THE MEANINGS GIVEN TO THEM IN THE SALES ORDER.
1. Provision of the Service.
1.1 Provision Generally
During the Term as defined in (Section 5.1) ProcessOut will provide Customer with access to ProcessOut’s proprietary (i) online data analytics tools, and/or (ii) integrated payment infrastructure APIs, and in each case the related services provided for herein (collectively, the “Service”) in accordance with the terms and conditions of this Agreement. In order to access and use the Service, Customer is responsible at its own expense for obtaining its own Internet access, and any hardware and software required therefor. The use of any registration-related information you provide us and the information we collect about you in connection with your subscription to the Service is governed by our Privacy Policy, available at https://www.processout.com/privacy-policy, which is incorporated herein by reference. Additionally, if any personal data that you input into the Service or otherwise transfer or make available to us is stored in the European Union (“EU”), then the transfer of such personal data shall be governed by the ProcessOut EU Model Contract Clauses, available at https://www.processout.com/eu-model-contract-clauses, which are incorporated herein by reference. ProcessOut will provide implementation services to the Customer to the extent set forth in the Sales Order.
1.2 Grant of Rights
Subject to the terms and conditions of this Agreement, ProcessOut hereby grants to Customer a limited, non-exclusive, non-transferable right for Customer’s Users (as defined below) to access and use the Service, solely for Customer’s internal business purposes during the Term. A “User” shall mean an employee or independent contractor of Customer. All rights not expressly granted to Customer are reserved by ProcessOut and its licensors. There are no implied rights.
1.3 Eligibility Requirements
By entering into this Agreement, Customer represents and warrants that Customer meets the following minimum requirements (“Eligibility Requirements”): (a) Customer is at least 18 years old and has the legal capacity to be bound by this Agreement; (b) Customer has the necessary rights and authority to enter into and perform the obligations required of Customer under this Agreement including entering into this Agreement on behalf of and binding a third-party, if so applicable; (c) All information which Customer provides, including but not limited to information provided during registration, information about Customer and any third -party business, and all relevant payment information, is within Customer’s right to use, and is and will remain accurate, complete and current; (d) Customer is in compliance with all applicable laws, including but not limited to all applicable laws and regulations pertaining to data privacy; (e) None of the Customer Data (as defined herein) will contain any unlawful, defamatory, offensive, libelous, harassing, abusive, fraudulent, pornographic or obscene content or material; and (f) Customer will provide ProcessOut with any information, records, or materials that we request to verify Customer’s compliance with the eligibility requirements set forth above and the terms and conditions of this Agreement.
1.4 Restrictions
Customer shall not (and shall not allow any third party to): (a) use the Service for the benefit of any third party (for the avoidance of doubt, Customer’s partners and clients may benefit from Customer’s use of the Service and such benefit shall not constitute a violation of this provision), or to develop or market any product, software or service that is functionally similar to or derivative of the Service, or for any other purpose not expressly permitted herein; (b) permit any third-party to access or use the Service except as envisioned by the Service in its normal operation or specified herein; (c) sell, distribute, rent, lease, service bureau, post, link, disclose or provide access to the Service, directly or indirectly, to any third party; (d) alter, modify, debug, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any software (including source code) associated with the Service; or (e) use any robot, spider, scraper or other automated means to access the Service in an unauthorized manner, or engage in any scraping, data- mining, harvesting, data aggregating or indexing of the Service. All acts and omissions of Users shall be deemed to be those of Customer, and Customer shall be responsible therefor. Customer shall keep all passwords and API keys provided to it safe and secure, and shall be responsible for all use of the Service using passwords or API keys issued to Customer and Users. Customer shall notify ProcessOut immediately of any actual or suspected unauthorized use of its passwords or API keys for the Service. Without limiting any of its other rights or remedies, ProcessOut reserves the right to suspend Customer’s or any User’s access to the Service if ProcessOut reasonably believes that Customer or such User has materially violated the restrictions and obligations in this Agreement (in which case, it shall provide Customer prompt written notice of such suspension).
1.5 Customer Cooperation
Customer shall: (a) reasonably cooperate with ProcessOut in all matters relating to the Service; (b) respond promptly to any ProcessOut request to provide information, approvals, authorizations or decisions that are reasonably necessary for ProcessOut to provide the Service in accordance with this Agreement; and (c) provide such Customer materials or information as ProcessOut may reasonably request to provide the Service and ensure that such materials or information are complete and accurate in all material respects.
1.6 Support and Related Services
ProcessOut will provide Customer with telephone and/or email support in connection with Customer’s use of the Service during ProcessOut’s regular business hours or as set forth on the Sales Order. ProcessOut is not responsible to provide any support for any issues resulting in problems, errors or inquiries resulting from Customer’s systems and hardware.
1.7 Professional Services
Customer may request and ProcessOut may agree to provide custom development, consulting, training or other professional services as mutually agreed to by the parties (“Professional Services”). Any arrangement for provision of Professional Services shall be detailed and set forth in a separate statement of work executed by both parties (the “Statement of Work”).
2. ProcessOut Technology
In connection with providing the Service, ProcessOut and its licensors shall operate and support the hosted environment used by ProcessOut to provide the Service, including the ProcessOut Technology (as defined below), the server hardware, disk storage, firewall protection, server operating systems, management programs, web server programs, documentation and all other technology or information so used by ProcessOut. As used herein, “ProcessOut Technology” means all of ProcessOut’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by ProcessOut in providing the Service.
3. Ownership
Customer acknowledges and agrees that as between ProcessOut and Customer, all right, title and interest in and to the Service (including the data, information, text, images, designs, sound, music, marks, logos, compilations (meaning the collection, arrangement and assembly of information other than Customer Data) and other content on or made available through the Service, other than Customer Data), the ProcessOut Technology and all improvements and derivatives of the foregoing (including all intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain owned by ProcessOut or its licensors, and this Agreement in no way conveys any right, title or interest in the Service or the ProcessOut Technology other than a limited right to use the Service in accordance with this Agreement. ProcessOut acknowledges and agrees that as between Customer and ProcessOut, all right, title and interest in and to the Customer Data are and shall remain owned by Customer or its licensors, and this Agreement in no way conveys any right, title or interest in the Customer Data other than a limited right to use the Customer Data in accordance with the terms and conditions herein. No right or license is granted hereunder to Customer under any trademarks, service marks, trade names or logos. Customer shall not remove any ProcessOut trademark, service mark or logo, or any proprietary notices or labels (including any copyright or trademark notices) from the Service. ProcessOut acknowledges and agrees that as between Customer and ProcessOut, all right, title and interest in and to the Customer Data are and shall remain owned by Customer or its licensors, and this Agreement in no way conveys any right, title or interest in the Customer Data other than a limited right to use the Customer Data in accordance with the terms and conditions set forth and agreed to herein.
4. Fees; Payments; Taxes
4.1 Fees
In consideration of the provision of the Service, Customer shall pay ProcessOut the applicable fees in the amounts and the manner set forth on Sales Order.
4.2 Increases
ProcessOut reserves the right to increase its fees at any time on 60 days’ notice to Customer. If Customer objects to the fee increase, Customer may terminate the Service by written notice during such 60-day period. If Customer does not exercise its right of termination during such period, Customer will be deemed to have accepted the increased fees.
4.3 Taxes
All amounts due hereunder are exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with this Agreement, the Service, or Customer’s and its Users’ access to the Service. Customer shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on ProcessOut’s income), which may be invoiced by ProcessOut from time-to-time.
4.4 Late payments
Customer shall pay interest on all late payments at the lesser of (a) 1.5% per month or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse ProcessOut for all costs and expenses, including attorneys’ fees, incurred in collecting any unpaid amounts owed by Customer hereunder.
5. Term; Termination
5.1 Term, Termination and Automatic Renewal
The term of this Agreement shall commence upon Customer’s subscription to the Service as detailed on the Sales Order and, unless earlier terminated as set forth herein, shall continue for the period of the initial subscription selected by the Customer (the “Initial Term”). ProcessOut reserves the right to terminate this Agreement at any time upon written notice to the Customer and shall repay to Customer any pro-rated portion of the fees paid to it in connection with the Service that the Customer would have received but for ProcessOut’s cancellation. In the event that the Agreement is not terminated as set forth herein it shall continue to automatically renew for the length of the Initial Term (a “Renewal Term”). The Initial Term and any Renewal Term is referred to herein as a “Subscription Term”, and the Subscription Terms are referred to collectively as the “Term.”
5.2 Termination for Breach
Either Party may terminate this Agreement by written notice thereof to the other Party, if the other Party materially breaches this Agreement and does not cure such breach within 30 days after written notice thereof.
5.3 Effects of Termination; Survival
Upon any termination of this Agreement: (a) all rights granted to Customer hereunder shall terminate and ProcessOut shall no longer provide access to the Service to Customer, and (b) Customer shall cease and cause its Users to cease using the Service. Any obligations that have accrued prior to termination shall survive termination of this Agreement. In addition, the following Sections, as well as any other provisions herein which by their nature should survive, shall survive termination of this Agreement: Sections 3 through 11.
6. Customer Data
6.1 Data Generally
All data and information which the Customer inputs into the Service (the “Customer Data”) is stored in a private and secure fashion, and will not be used by ProcessOut except as permitted herein. Customer hereby grants to ProcessOut a limited, non-exclusive, royalty-free right and license to use, reproduce, manipulate, and display the Customer Data: (a) during the Term solely in connection with providing the Service to Customer, (b) during and after the Term to improve, develop and market the Service, provided that ProcessOut may only use anonymized and aggregated Customer Data to improve, develop and market the Service. Without limiting the above, ProcessOut may analyze Customer Data, and data of other customers, to create aggregated and anonymized statistics or data that do not identify Customer or any individual, household, user, browser, or device and ProcessOut may during and after the Term use and disclose such statistics or data in its discretion. Except as specified otherwise in this Agreement, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Data. The content of Customer Data shall be Customer’s sole responsibility. ProcessOut shall operate the Service in a manner that provides reasonable information security for Customer Data, using commercially reasonable data backup, security, and recovery protections.
6.2 Additional Customer Responsabilities
Customer is solely responsible for all Customer Data. ProcessOut does not guarantee the accuracy, integrity or quality of Customer Data. Customer shall not: (a) upload or otherwise make available to ProcessOut any Customer Data that is unlawful or that violates the rights of any third parties; (b) upload or otherwise make available to ProcessOut any Customer Data that Customer does not have a right to transmit due to any law, rule, regulation or other obligation; (c) use, upload or otherwise transmit any Customer Data that infringes any intellectual property or other proprietary rights of any third party; (d) upload or otherwise make available to ProcessOut any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, limit the functionality of any computer software or hardware or telecommunications equipment; (e) interfere with or disrupt the Service or servers or networks connected to the Service; (f) upload or otherwise make available to ProcessOut any Customer Data that constitutes protected health information subject to the Health Insurance Portability and Accountability Act or any regulation, rule or standards issued thereunder, or constitutes similarly protected information under any applicable state, rule or regulation; or (g) violate any applicable law, rule or regulation, including those regarding the export of technical data.
7. Representations and Warranties; Disclaimer
7.1 General Representations and Warranties
Each Party hereby represents and warrants to the other Party that: (a) if such Party is a corporation, company or other entity (as applicable), such entity is duly organized, validly existing and in good standing in its jurisdiction of organization; (b) such Party’s execution, delivery and performance of this Agreement have been duly and validly authorized by all necessary organizational action on its part or, if such Party is an individual, such Party has legal capacity to enter into this Agreement; (c) the provisions set forth in this Agreement constitute legal, valid, and binding obligations of such Party enforceable against such Party in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting creditors’ rights generally; and (d) its execution, delivery and performance of this Agreement does not and will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under, any agreement or other obligation to which such Party is subject.
7.2 ProcessOut Limited Warranty
ProcessOut further represents and warrants that (a) it will provide the Service in a competent and workmanlike manner; and (b) it owns or otherwise has sufficient rights (including without limitation all intellectual property rights thereto) to grant the licenses to Customer under this Agreement. ProcessOut does not warrant that it will be able to correct all reported defects or that use of the Service will be uninterrupted or error free. ProcessOut makes no warranty regarding features or services provided by any third parties. ProcessOut retains the right to modify its services and the ProcessOut Technology in its sole discretion. Customer’s sole remedy for ProcessOut’s breach of the warranty in this paragraph shall be that ProcessOut shall remedy the applicable error, or if ProcessOut is unable to do so in a timely manner, refund to Customer actual damages up to a limit of the fees paid during the six (6) month period leading up to when the breach of warranty occurred.
7.3 Disclaimer
EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 7.1-7.2 ABOVE, PROCESSOUT MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICE (IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE), INCLUDING ANY WARRANTY (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, (B) THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, (C) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, OR (D) AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICE.
7.4 Additional Disclaimer
CUSTOMER ACKNOWLEDGES THAT THE SERVICE IS HOSTED BY A THIRD PARTY HOSTING PROVIDER (THE “HOSTING CONTRACTOR”) AND USES THIRD PARTY SERVER HARDWARE, DISK STORAGE, FIREWALL PROTECTION, SERVER OPERATING SYSTEMS, MANAGEMENT PROGRAMS, WEB SERVER PROGRAMS FOR DELIVERY OF THE SERVICES. ADDITIONALLY, PROCESSOUT USES THIRD PARTIES TO HELP RECEIVE PAYMENTS (“PAYMENT PROCESSOR”). PROCESSOUT MAY CHANGE ITS HOSTING CONTRACTOR AND PAYMENT PROCESSOR AT ANY TIME. YOUR USE OF THE SERVICE IS SUBJECT TO ANY RESTRICTIONS IMPOSED BY THE HOSTING CONTRACTOR AND THE PAYMENT PROCESSOR, AS APPLICABLE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, PROCESSOUT SHALL NOT BE LIABLE FOR ANY PROBLEMS, FAILURES, DEFECTS OR ERRORS WITH THE SERVICE TO THE EXTENT CAUSED BY THE HOSTING CONTRACTOR OR PAYMENT PROCESSOR. CUSTOMER ACKNOWLEDGES THAT THE FEES PAYABLE FOR THE SERVICE REFLECT THE FACT THAT PROCESSOUT IS NOT RESPONSIBLE FOR THE ACTS AND OMISSIONS OF THE HOSTING CONTRACTOR OR PAYMENT PROCESSOR, AND THAT PROCESSOUT COULD NOT AFFORD TO PROVIDE THE SERVICE AT THE PRICES OFFERED IF IT WERE RESPONSIBLE FOR THE ACTS OR OMISSIONS OF THE HOSTING CONTRACTOR OR PAYMENT PROCESSOR.
8. Limitations of Liability
8.1 Damages Cap
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, PROCESSOUT’S TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO PROCESSOUT UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS LIMITATION WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE CLAIM.
8.2 Disclaimer of Indirect Damages
EXCEPT FOR (A) CUSTOMER’S OBLIGATION TO PAY ALL AMOUNTS DUE HEREUNDER; (B) ITS INDEMNIFICATION OBLIGATIONS; AND (C) ITS BREACH OF ANY INTELLECTUAL PROPERTY OR CONFIDENTIALITY OBLIGATIONS OR RESTRICTIONS HEREIN (INCLUDING ANY LIMITATIONS OR RESTRICTIONS ON USE OF THE SERVICE), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF DATA, PROFITS OR REVENUE) ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
8.3 Basis of the Bargain
THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 ARE A FUNDAMENTAL BASIS OF THE BARGAIN, THAT PROCESSOUT HAS SET ITS FEES IN RELIANCE ON THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THEY SHALL APPLY NOTWITHSTANDING THAT ANY REMEDY SHALL FAIL ITS ESSENTIAL PURPOSE.
9. Indemnification
9.1 ProcessOut Indemnification
ProcessOut shall defend, indemnify and hold harmless Customer and its directors, officers, and employees (“Customer Indemnified Parties”) from and against any third party claims, actions, proceedings, demands, lawsuits, damages, liabilities and expenses (including reasonable attorneys’ fees and court costs) (collectively, “Claims”) to the extent based on any claim that the Service infringes, misappropriates or otherwise violates (collectively, “Infringes”) any third party intellectual property or proprietary right (excluding patents).
9.2 Customer Indemnification
Customer shall defend, indemnify and hold harmless ProcessOut and its directors, officers, employees, agents and providers (“ProcessOut Indemnified Parties”) from and against any Claims to the extent based on any claim that the Customer Data Infringes any third party intellectual property or proprietary right (excluding patents).
9.3 Indemnification Process
As conditions of the indemnification obligations in Sections 9.1-9.2 above: (a) the applicable Customer Indemnified Party or ProcessOut Indemnified Party (the “Indemnitee”) will provide the indemnifying Party (the “Indemnitor”) with prompt written notice of any Claim for which indemnification is sought (provided that failure to so notify will not remove the Indemnitor’s indemnification obligations except to the extent it is prejudiced thereby), (b) the Indemnitee will permit the Indemnitor to control the defense and settlement of such Claim, and (c) the Indemnitee will reasonably cooperate with the Indemnitor in connection with the Indemnitor’s evaluation, defense and settlement of such Claim. In defending any Claim, the Indemnitor shall use counsel reasonably satisfactory to the other Party. The Indemnitor shall not settle or compromise any such Claim or consent to the entry of any judgment without the prior written consent of the other Party (not unreasonably withheld).
9.4 Exclusions
ProcessOut’s obligations in Section 9.1 above shall not apply to any Claim to the extent arising from or relating to (a) misuse of the Service (including any use not strictly in accordance with the documentation therefor, ProcessOut’s instructions, and this Agreement); (b) any modification, alteration or conversion of the Service not created or approved in writing by ProcessOut; (c) any combination of the Service with any computer, hardware, software or service not provided by ProcessOut; (d) ProcessOut’s compliance with specifications or other requirements of Customer; or (e) any third party data or Customer Data. If the Service is or may be subject to a Claim of Infringement described in Section 9.1 above, ProcessOut may, at its cost and sole discretion: (i) obtain the right for Customer to continue using the Service as contemplated herein; (ii) replace or modify the Service so that it becomes non-Infringing without substantially compromising its principal functions; or (iii) to the extent the foregoing are not commercially reasonable, terminate this Agreement and return to Customer any pre-paid fees for the Service associated with the then-current Subscription Term. ProcessOut’s obligations in this Section 9 shall be ProcessOut’s sole obligations, and Customer’s sole remedies, in the event of any Infringement of intellectual property or proprietary rights by or related to the Service.
10. Confidentiality
10.1 Definition
“Confidential Information” means information that is disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) hereunder during the Term that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, including without limitation information (tangible or intangible) regarding a Party’s technology, source code, software, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information. “Confidential Information” shall not include any information that (a) is or becomes generally known to the public through no fault of, or breach of this Agreement by, the Receiving Party; (b) is rightfully in the Receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (d) is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure. In addition, (i) the terms and conditions of this Agreement shall be deemed to be Confidential Information of both Parties; (ii) the Service and ProcessOut Technology shall be deemed Confidential Information of ProcessOut, regardless of whether or not they are labeled or identified, or would reasonably be considered confidential; and (iii) Customer Data shall be deemed Confidential Information of Customer.
10.2 General Obligations
Each Party agrees that it will during the Term and thereafter (a) not disclose the other Party’s Confidential Information to any third party (other than as permitted in the last sentence of this paragraph); (b) use the other Party’s Confidential Information only to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement; (c) disclose the other Party’s Confidential Information only to those of its employees and independent contractors who reasonably need to know such information for purposes of this Agreement and who are bound by confidentiality obligations offering substantially similar protection to those in this Section 10; and (d) protect all Confidential Information of the other Party from unauthorized use, access, or disclosure in the same manner as it protects its own confidential information of a similar nature, and in no event with less than reasonable care. Notwithstanding the above, this paragraph shall not prohibit: (i) a Party from disclosing Confidential Information of the other Party to the extent required by applicable law, rule or regulation (including a court order or other government order) or the rules and regulations of the SEC or any national securities exchange; provided that such Party provides the other Party prior written notice of such disclosure, to the extent practicable, and reasonably cooperates with efforts of the other Party to seek confidential treatment thereof, to the extent such cooperation is requested by the other Party; or (ii) a Party from disclosing the terms and conditions of this Agreement to its attorneys and financial advisors, or current or potential lenders, other sources of financing, investors or acquirers; provided that such third parties are bound by confidentiality obligations offering substantially similar protection to those in this Section 10 (provided further that such third parties are only permitted to use such information for the purpose of advising, lending or providing financing to, or investing in or acquiring, such Party, as applicable).
10.3 Return or Destruction
Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party, or destroy or erase, the Disclosing Party’s Confidential Information in tangible form, upon the termination or expiration of this Agreement; provided that (a) Receiving Party may retain a copy of Disclosing Party’s Confidential Information solely for the purposes of tracking Receiving Party’s rights and obligations hereunder with respect thereto, (b) Receiving Party may retain copies of Disclosing Party’s Confidential Information solely to the extent required by law or by applicable professional standards which require such Party to retain copies of its working papers, and (c) Receiving Party may retain Disclosing Party’s Confidential Information solely to the extent reasonably necessary for Receiving Party to exercise rights or perform obligations under this Agreement that survive such termination.
10.4 Feedback
Notwithstanding the above or anything to the contrary herein, to the extent that Customer at any time provides ProcessOut with any feedback or suggestions regarding the Service, including potential improvements or changes thereto (collectively, “Feedback”), the Feedback shall not be considered Confidential Information of Customer, and ProcessOut shall be free to use, disclose and otherwise exploit in any manner, the Feedback for any purpose. All Feedback is provided by the Customer AS-IS, with no warrantee or representation of any kind.
11. Miscellaneous
11.1 Compliance with Laws
Each Party shall comply with all laws, rules, regulations and ordinances applicable to its activities hereunder.
11.2 Assignment
Customer may not assign this Agreement, or assign any of its rights or delegate any of its obligations under this Agreement, without the prior written consent of ProcessOut. Any purported assignment or delegation in violation of this paragraph is null and void. This Agreement will bind and inure to the benefit of each Party’s successor and permitted assigns. Notwithstanding the foregoing, ProcessOut may assign this Agreement to any acquirer of all or substantially all of its assets as they relate to this Agreement.
11.3 Entire Agreement; Amendment
This Agreement along with the Sales Order and the Privacy Policy contains the complete understanding and agreement of the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto. No pre-printed terms on any purchase order, invoice or similar document issued in relation to this Agreement shall have any effect on the Parties or this Agreement. This Agreement may be amended or modified only by an express written agreement signed by duly authorized representatives of both Parties.
11.4 Notices
ProcessOut may give any notices issued in connection with this Agreement by email to Customer at the email address given by Customer when creating its account, and such notices shall be effective upon confirmation of transmission to Customer.
11.5 Force Majeure
ProcessOut shall not be liable or responsible to Customer, nor be considered to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any provision of this Agreement to the extent such failure or delay is caused by or results from any act, circumstance or other cause beyond the reasonable control of ProcessOut, including acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either Party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable technology or components, telecommunication breakdown, or power outage.
11.6 Publicity
ProcessOut shall have the right to use Customer’s name and logo on client lists published on ProcessOut’s website and in marketing materials. ProcessOut may announce the relationship hereunder in a press release provided that ProcessOut obtains Customer’s prior approval of the wording of the release (not unreasonably withheld).
11.7 Choice of Law
This Agreement is and will be governed by and construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of Delaware, without giving effect to any conflicts of laws provision thereof or of any other jurisdiction that would produce a contrary result.
11.8 Disputes; Arbitration
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between Customer and ProcessOut or its employees, agents, successors, or assigns, will exclusively be settled through binding and confidential arbitration. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”). For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778- 7879 or visit the AAA website at http://www.adr.org.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
Customer and ProcessOut agree as follows: (a) ANY CLAIMS BROUGHT BY A PARTY MUST BE BROUGHT IN SUCH PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (c) in the event that Customer is able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, ProcessOut will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) ProcessOut also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitration will be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (g) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (h) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law.
Notwithstanding the foregoing (i) either Customer or ProcessOut may bring an individual action in small claims court to the extent eligible, and (ii) either Party may seek emergency equitable relief before the state or federal courts located in Massachusetts in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Massachusetts for such purposes. A request for interim measures will not be deemed a waiver of the right to arbitrate.
11.9 Relationship of the Parties
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise or employment relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
11.10 Waiver
No waiver by either Party of any of the provision of this Agreement is effective unless explicitly set forth in writing and signed by such Party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
11.11 Severability
If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction.
11.12 Heading; Interpreation
Headings are provided for convenience only and will not be used to interpret the substance of this Agreement. Unless the intent is expressly otherwise in specific instances, use of the words “include,” “includes,” or “including” in this Agreement shall not be limiting and “or” shall not be exclusive.