EFFECTIVE DATE: May 22, 2018
The activation by you ("Merchant") of the flexReceipts Application represents your agreement to these Terms. These Terms form a legally binding contract between you and flexReceipts (together referred to as "Parties") in relation to your access and use of the App. You represent and warrant that you (a) have the right and authority to bind your business to these Terms, (b) authorize flexReceipts to rely on any instructions provided by or agreements entered into with any persons to whom you grant permission to access and use the App, and (c) you are not barred or otherwise legally prohibited from accessing or using the App.
IN CONSIDERATION OF THE MUTUAL PROMISES BELOW AND OTHER GOOD AND VALUABLE CONSIDERATION THE SUFFICIENCY OF WHICH Are HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS:
flexReceipts offers electronic receipt generation, compilation and distribution services and customer data compilation and reporting services delivered through a proprietary web-based application. Merchant wishes to engage, and flexReceipts is willing to provide, certain such services to Merchant on the terms and conditions described in this Agreement.
1. ACCESS TO SOFTWARE; LICENSES; AND STATEMENTS OF WORK
1.1 Access to Services and Software. flexReceipts hereby grants Merchant a non-exclusive right to (a) access and use the commercially available suite of services, programs, components, functions, screen designs, and report formats made available by flexReceipts to Merchant (“Services”) and (b) internally use the flexReceipts software (in object code format only) incorporated into Verifone terminals located on the premises owned or controlled by Merchant (the “Software”) (the Software and Services are collectively referred to herein as “flexReceipts Property”). The Services shall be used or accessed only by individual persons authorized by Merchant to access the Services solely using a user identifier and password provided to Merchant by flexReceipts.
1.2 License Restrictions; Reservation of Rights. Merchant may not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make the flexReceipts Property available to any third party. All ownership rights, title, and interest in and to the flexReceipts Property, as such may be modified, upgraded, and/or enhanced from time to time (together with all intellectual property rights therein) will remain with and belong exclusively to flexReceipts. Merchant shall not reverse engineer, decompile, disassemble or otherwise create, attempt to create, or permit or assist any third party to create a source code version of the flexReceipts Property. flexReceipts reserves all right, title and interest in and to the flexReceipts Property other than the limited rights expressly granted herein.
1.3 Merchant Data. Merchant will own all data which Merchant provides to flexReceipts in connection with receiving Services (“Merchant Data”). Because flexReceipts needs the following license to perform the Services, Merchant hereby grants to flexReceipts a non-exclusive, royalty-free, irrevocable, and perpetual license to display, copy and use (a) Merchant Data in connection with (i) providing Services (ii) providing services to or for the benefit of flexReceipts’ end consumers, and (iii) whatever other action is required to perform and market the Services; and (b) Merchant Data in an aggregated and anonymized format.
1.4 Data Security. flexReceipts has implemented commercially reasonable technical and organizational measures designed to secure personal information (“PI”) from accidental loss and from unauthorized access, use, alteration or disclosure. flexReceipts does not collect complete payment information (i.e. full credit card PAN data), and is not involved in any payment processing type activities. flexReceipts does collect some PI (i.e. email address, First Name, Last Name), and covenants to continue to help protect the security of this data within its control by utilizing (a) SSL for secure transport of the data (b) encryption of data stored in its database (c) firewalls to prevent unauthorized access to the system (d) unique ID and password based authentication for user access to the system (e) restricted physical access to the data.
In the event flexReceipts or an Affiliate discovers or is notified of a security breach that relates to Merchant Data, then, to the extent of the security breach involving Merchant Data (a “ Security Breach”) or potential Security Breach, flexReceipts shall promptly (i) notify Merchant in writing of such Security Breach or potential Security Breach and of the Merchant customer Personal Information involved, (ii) take immediate steps to investigate, mitigate and cure the cause of such Security Breach or potential Security Breach, (iii) assist and cooperate with Merchant in investigating, remedying and taking any other action reasonably necessary in response to any Security Breach or potential Security Breach, (iv) maintain regular communication with Merchant on the status of the investigation, mitigation and cure thereof, (v) provide to Merchant analysis reports detailing the incident, and (vi) implemented reasonable security enhancements to prevent re-occurrence.
a) In addition, flexReceipts shall provide cooperation to Merchant to provide any notices and information regarding such Security Breach to appropriate law enforcement agencies and government regulatory authorities as necessary to comply with applicable laws and law enforcement or government agency request. Merchant shall direct the steps to be taken to handle and manage any required notification, and flexReceipts shall not provide or allow anyone else to provide any notices (other than to Merchant) or to communicate with any regulator regarding such a breach unless expressly directed by Merchant in writing to do so or clearly required by applicable law (in which case it shall first provide a draft of the proposed notice for Merchant review).
b) Unless prohibited by an applicable statute, governmental authority or court order, flexReceipts shall also notify Merchant of any third-party legal process relating to any Security Breach related to Merchant customer Personal Information, including, but not limited to, any legal process initiated by any governmental entity (foreign or domestic).
1.5 Merchant Obligations. Merchant agrees to abide by all laws, rules, and regulations that are applicable to it and its use of the flexReceipts Property and shall use the flexReceipts Property solely for its legitimate business purposes as contemplated by this Agreement and shall not interfere with or disrupt the integrity or performance of the flexReceipts Property or the data contained therein or attempt to gain unauthorized access to the flexReceipts Property or its related systems or network.
1.6 Production Testing. Merchant agrees to never perform any testing whatsoever in the flexReceipts production environment (i.e., utilize the flexReceipts production URL) without first requesting and acquiring written approval from flexReceipts. Such written approval shall include the following information:
The date and time during which the requested testing will be taking place;
The names of the individuals that will be performing the testing and the contact information at which they can be reached during the testing activity; and
The names of the flexReceipts personnel that will be monitoring and supporting the testing efforts.
Once initiated, Merchant agrees to immediately suspend any and all testing activity should they be notified by flexReceipts to do so. The Merchant also agrees to the following conditions:
No automated or high volume testing in the flexReceipts production environment is allowed;
Only flexReceipts approved versions of integration code can be used to communicate with the flexReceipts production environment;
All code changes must be tested with flexReceipts in the test environment prior to being deployed to the production environment.
Should the Merchant fail to meet any of the above mentioned terms and conditions, their flexReceipts services may be suspended, and they will be held liable for any damages, financial or otherwise, as incurred by flexReceipts.
1.7 Email Validation & Blacklisting
Merchant shall be responsible for verifying the validity of the email addresses to which it will be sending email receipts. flexReceipts shall not be held accountable for the disabling or blacklisting of a Merchant’s domain due to email receipts being sent to a large percentage of undeliverable email addresses. Merchant agrees to keeping bounce rates under 5% or contracting flexReceipts for email validation services.
2. SUPPORT SERVICES
Support consists of email contact during flexReceipts normal business hours. Such support will include the opportunity to communicate with a member of flexReceipts general support staff about basic Services capabilities, maintenance and use of the Services, the identification and reporting of reproducible errors and problems with Services problems and issue resolution.
3. FEES; REIMBURSEMENT OF EXPENSES
3.1 Fees; Payment. Merchant shall pay to flexReceipts an upfront monthly licensing fee (the “Fees”) for each terminal on which the application is activated. If any payment is not received by the date such payment is due and payable, flexReceipts reserves the right to terminate this Agreement and any rights granted herein to access and/or use the flexReceipts Property, and flexReceipts’ obligation to provide the flexReceipts Property to Merchant. All Fees paid are non-refundable.
3.2 Net of Taxes. All amounts payable by Merchant to flexReceipts hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know‑how payments, customs, privilege, excise, sales, use, value‑added and property taxes (collectively "Taxes"). Merchant shall be solely responsible for payment of any Taxes, except for those taxes based on the income of flexReceipts. Merchant will not withhold any Taxes from any amounts due flexReceipts.
4.1 Marketing. Merchant and flexReceipts agree to partner on the co-marketing of their relationship. This can entail: white papers, testimonials, press releases, media mentions, etc. Merchant will willingly provide referrals to other retailers or other potential strategic partners to flexReceipts.
5. FEEDBACK AND CONFIDENTIALITY
5.1 Feedback. Merchant may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Merchant Feedback”) to flexReceipts with respect to the flexReceipts Property. flexReceipts shall have full discretion to determine how, if at all, it uses the Merchant Feedback, and whether or not to proceed with the development of the requested enhancements, new features or functionality. The Parties agree that Merchant Feedback is provided voluntarily. Merchant hereby grants flexReceipts a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of or from the Merchant Feedback; and (b) use the Merchant Feedback and/or any subject matter related thereto, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, based in part or in full on the Merchant Feedback and/or any subject matter related thereto.
5.2 Confidentiality. “Confidential Information“ means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either Party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other Party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the Disclosing Party even if not so marked or identified; in all instances all flexReceipts Property is Confidential Information of flexReceipts. Information will not be deemed “Confidential Information” if such information: (i) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party. The Parties shall use the same degree of care used to protect their own Confidential Information, and in no event less than a commercially reasonable degree of care, to protect the secrecy of, avoid disclosure and unauthorized use or reproduction of, and not distribute, sell, license, or otherwise make the other Party’s Confidential Information available to third parties. Confidential Information may be disclosed to only (i) such employees and agents of the Parties as may have a need to know such information in the course of their duties; (ii) legal or financial advisors of the Parties on a need to know basis; or (iii) any competent authorities following a judicial order to do so.
6. REPRESENTATIONS, WARRANTIES AND EXCLUSIONS
6.1 Representations and Warranties. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.
6.2 Exclusions. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND FLEXRECEIPTS MAKES NO AND DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. Merchant acknowledges that flexReceipts does not warrant that the flexReceipts Property will be provided in an uninterrupted or error free fashion at all times.
7.1 Infringement Defense. flexReceipts shall indemnify Merchant and its officers, directors, employees, and agents (each, a “Merchant Indemnified Party”) against any and all damages, losses, and liabilities resulting from any third party claim, allegation, or legal action (a “Claim”) for infringement of a third party copyright, United States patent, trade secret or trademark by reason of the use of the flexReceipts Property by Merchant as permitted hereunder (except where such infringement or misappropriation relates to Merchant Data). flexReceipts shall defend each Merchant Indemnified Party against any such Claim, and pay damages actually awarded or paid in connection therewith, including the reasonable attorneys’ fees and expenses, if the liability is based on use of flexReceipts Property by Merchant as permitted herein. flexReceipts’ foregoing obligations to indemnify and defend shall be excused if Merchant does not: (a) promptly notify flexReceipts of such Claim; (b) tender to flexReceipts the sole and exclusive authority to defend and/or settle any such Claim; and/or (c) reasonably cooperate with flexReceipts in connection with such Claim. In addition, if the use of the flexReceipts Property by Merchant has become, or in flexReceipts’ opinion is likely to become, the subject of any claim of infringement, flexReceipts may at its option and expense (i) procure for Merchant the right to continue using the flexReceipts Property as set forth herein; (ii) replace or modify the flexReceipts Property to prevent infringement so long as the flexReceipts Property has substantially equivalent functionality; or (iii) if options (i) or (ii) are not reasonably practicable, terminate this Agreement. Notwithstanding the above, flexReceipts shall have no liability or obligation under this Agreement with respect to any Claim if such Claim is caused in whole or in part by (x) compliance with the designs, data, instructions, or specifications provided by Merchant; (y) modification of the flexReceipts Property by any party other than flexReceipts without flexReceipts’ express consent; or (z) where the flexReceipts Property would not by itself infringe or otherwise result in liability for the Claim, such as when the flexReceipts Property is used by the Merchant in combination, operation, or use with any other component(s), system(s), application(s), portions of application(s), product(s), data or services. This section 8.1 states flexReceipts’ entire obligation and Merchant’s sole remedies against flexReceipts in connection with any claim regarding the intellectual property rights of any third party.
7.2 Indemnification by Merchant. Merchant shall indemnify, defend and hold harmless flexReceipts against any and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney's fees) directly or indirectly brought against flexReceipts by any third party arising from (a) the use of the flexReceipts Property in violation of the terms of this Agreement or in a manner not prescribed by flexReceipts by (i) Merchant, or (ii) any entity or individual using the user identifier and password provided to Merchant by flexReceipts and/or (b) any of the events listed in Section 8.1(x), (y) or (z). Merchant’s foregoing obligations to indemnify and defend shall be excused to the extent that flexReceipts does not: (a) promptly notify Merchant of such Claim; (b) tender to Merchant the sole and exclusive authority to defend and/or settle any such Claim; and (c) reasonably cooperate with Merchant in connection with such Claim
8. LIMITATION OF LIABILITY
8.1 LIMITATIONS ON REMEDY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL FLEXRECEIPTS BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF FLEXRECEIPTS HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN THE EVENT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, FLEXRECEIPTS SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE PRICE FLEXRECEIPTS HAS INVOICED CUSTOMER FOR ANY DELIVERABLES PAID FOR BUT NOT YET DELIVERED. THIS SECTION SETS FORTH EACH PARTY’S SOLE AND EXCLUSIVE ALTERNATIVE REMEDY (AT LAW OR IN EQUITY) IN THE EVENT THAT ANY EXCLUSIVE REMEDY HEREUNDER IS FOUND TO FAIL ITS ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
9. TERM, TERMINATION
9.1 Term. This Agreement will commence as of the date of initial payment, and unless earlier terminated as described below, will be automatically extended for successive renewal periods of one month.
9.2 Termination. Merchant may terminate this Agreement for any reason by deactivating the App on all Verifone devices..
9.3 Obligations on Termination. Upon termination of this Agreement for any reason, all rights granted hereunder and all obligations of flexReceipts to provide Services shall immediately terminate. Each Party will not be liable to the other party or any third party for termination of this Agreement. Termination of this Agreement or expiration of the Term shall not relieve Merchant from paying all fees accruing prior to termination. Notwithstanding the foregoing, Sections 1.3, 6, and 8, shall survive termination of this Agreement.
9.4 Force Majeure. No Party hereto shall have any liability under this Agreement for such Party’s failure or delay in performing any of the obligations imposed by this Agreement to the extent such failure or delay is the result of any event beyond such Party’s control (a “Force Majeure Event”); provided that financial inability in and of itself shall not be a Force Majeure Event.
This Agreement may not be amended or modified, in whole or part, except by a writing signed by duly authorized representative of each Party. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Nothing in this Agreement shall be construed to place the Parties hereto in an agency, employment, franchise, joint venture, or partnership relationship. Except as provided herein, neither Party will have the authority to obligate or bind the other in any manner, nor nothing herein contained shall give rise or is intended to give rise to any rights of any kind to any third parties. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, consistent with the intent of the Parties as of the Effective Date. This Agreement shall be governed by and construed in accordance with the laws of the Florida without regard to its rules of conflict of laws. Each of the Parties hereto hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New York and of the United States of America located in the State of New York for any litigation among the Parties hereto arising out of or relating to this Agreement. All notices under or related to this Agreement will be in writing and will reference this Agreement. Notices will be deemed given when: (i) delivered personally; (ii) sent by confirmed telecopy or other electronic means; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested; or (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses first set forth above or such other addresses designated pursuant to this Section. Neither Party may assign this Agreement, or sublicense any of the rights granted herein, in whole or in part, without the prior written consent of the non-assigning Party, which consent will not be unreasonably withheld by the non-assigning Party. Notwithstanding the foregoing, either Party may assign this Agreement without such consent to any person or entity controlling, controlled by, or controlled in conjunction with such Party or that acquires all or substantially all of the assets and business of the assigning Party by merger or purchase, provided that such person or entity assumes in writing all of the terms and conditions of this Agreement. Any attempt by either Party to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing shall be void. This Agreement, including any Schedules hereto constitutes the entire agreement between the Parties. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, credit applications, sales acknowledgments or quotations. Neither Party shall make any public announcement regarding this Agreement without the prior written consent of the other Party.