ISV Services Integration and Reseller Agreement
This ISV Services Integration and Reseller Agreement (this “Agreement”) is made on the date shown above (“Effective Date”) by and between San Jose Solutions Inc. d/b/a Velox, with offices at 197 E. Hamilton Ave. Ste. 102, Campbell, CA 95008 (“Velox”) and the company shown above, with offices at the address shown above (“Company”). Velox is in the business of providing a payment gateway platform and related technology and services for use by merchants. Company desires to integrate Velox’s platform and services with Company’s software, hardware, or service-based products, and to promote and market such integrated products to its customers. In consideration of each party’s promises set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Article I. Definitions
In addition to terms defined elsewhere in this Agreement, the following terms, when used in this Agreement, will have the meanings set forth in this Section:
“Card Brands” means Visa Inc., MasterCard Incorporated, Discover Financial Services, American Express Company, and any other applicable network or association through which Merchants may process payments.
“Gateway Services Agreement” means the written contract entered into between a Merchant and Velox, accessible at https://360payments.com/gateway-services-agreement/ or as otherwise provided or made available to Company by Velox from time to time and as may be modified by Velox in its sole discretion.
“Merchant” means an end-user merchant which, directly or indirectly (including but not limited to through any integration of the Services with Company’s Products): (a) submits transactions through or using the Services, or (b) has entered into a Gateway Services Agreement for access to or use of the Services.
“Processor” means a third-party service provider registered with the Card Brands which authorizes, captures, and settles transactions and performs other payment processing services on behalf of any Merchant.
“Product” means any hardware, software, or service-based product of Company which incorporates or is integrated with the Services pursuant to this Agreement.
“Services” means the payment gateway platform and related tools, products and services provided by Velox for use by Merchants, as modified from time to time by Velox in its sole discretion. Services include, but are not necessarily limited to: payment transaction routing, velocity filters, IP filters, location filters, transaction truncation, encryption, fraud tools, chargeback reduction tools, PCI tools, APIs (defined below), shopping cart integrations, processor integrations, merchant management, control panels, data security tools, authentication tools, recurring billing, electronic invoicing, software integrations, data (including enhanced data) access, batch processing, migration tools, tokenization, and reporting.
“Rules” means all applicable rules, regulations, requirements, and standards of Velox and the Card Brands, as amended from time to time including but not limited to the standards promulgated by the PCI Security Standards Council, LLC from time-to-time (such as, but not limited to, the Payment Card Industry Data Security Standards and Payment Application Data Security Standards).
Article II. Company Appointment and Responsibilities
2.1. Appointment. Subject to Company’s compliance with the terms and conditions of this Agreement, Velox hereby appoints Company as an authorized facilitator of the Services. In connection with this appointment Velox grants to Company the right to, and Company shall, integrate the Services with its Products to allow Merchants to access, use, and submit transactions through the Services in connection with Company’s Products. Company’s integration and use of the Services shall be solely in accordance with their respective application program interfaces (“APIs”), specifications, user manuals, and other documentation provided by Velox, as each may be updated by Velox from time to time in its sole discretion.
2.2. Marketing. Company will use its best efforts to refer its customers and other prospective Merchants to Velox for their use of the Services. Company will place advertisements and endorsements for the Services on its website and a link to or copy of Velox’s then-current Merchant registration form in the Product set-up or installation process. Company will not knowingly refer any merchant to Velox which (i) is engaged in a business model that violates any applicable law or is prohibited from using the Services by the Card Brands, (ii) has previously violated any gateway services agreement with another party, or (iii) Company has reason to believe is operating in a fraudulent manner. Company will not make any representation, warranty, guaranty, or description to Merchants, prospective Merchants, or other third parties with regard to Velox or the Services without Velox’s express prior written consent. Company will not, directly or directly, market, promote, offer, sell, or otherwise distribute the Services except as specifically set forth in this Agreement or with Velox’s prior written consent.
2.3. Integration. As soon as is practicable following the execution of this Agreement, Company shall integrate the Services with its Products in accordance with the APIs, policies, procedures, instructions, and documentation made available by Velox. Velox may update the Services, API, and/or related documentation from time to time in its sole discretion, and Company shall immediately implement any applicable changes to the interface and Products required as a result of such modification. Company shall be solely responsible for, and assumes all liability associated with, the proper functioning, Rule compliance, and integration of its Products. Company understands and agrees that Product or integration errors may result in fees, chargebacks, declined transactions, failed transactions, data breaches, and other liabilities, all of which shall be Company’s responsibility. Company understands and agrees that all or portions of the Services may operate in conjunction with or be provided through software, hardware, or services provided by third parties, including but not limited to software for internet browsing, PDF viewing, and transaction routing. Velox shall have no obligation with regard to, and makes no representation or warranty related to, the software, hardware, or services provided by third parties. Third-party products and services may be subject to licenses, agreements, privacy policies, and other terms and conditions associated with such products and services, and Company will comply with and adhere to each such license, agreement, policy, term, and condition.
2.4. Materials. Company will submit to Velox the advertising and marketing materials Company proposes to use in connection with promoting the Services, and all such materials are subject to Velox’s prior written consent. Such materials include, without limitation, telephone sales scripts, e-mails, banners, custom landing pages, flyers, and direct mailers. Solely in connection with Company’s authorized marketing and use of the Services, Company may use and display (for example, on Company’s website or printed marketing material) Velox’s name and logo (the “Velox Marks”), subject to the limitations of Section 6.2 below and any guidelines or policies issued by Velox. Each use of Velox Marks by Company must receive Velox’s prior written approval. If requested by Velox, Company will send to prospective merchants those marketing materials provided to Company by Velox from time-to-time. Company will not remove, alter, distort, cover, or otherwise modify any legal notices, including without limitation any notice of proprietary rights, appearing on or which may be included in any marketing materials, content, documentation, or other materials furnished or otherwise made available by Velox or its vendors under this Agreement.
2.5. Gateway Service Agreements. Prior to allowing any prospective Merchant to access or use the Services, Company will ensure that such prospective Merchant has completed Velox’s Merchant registration process and has executed and agreed to a Gateway Service Agreement. Company may complete the registration process and execute the Gateway Service Agreement on behalf of a Merchant, provided that if Company does so it represents and warrants to Velox that: (a) all information provided to Velox in connection with such registration is in all respects true, correct, and not misleading; (b) it has fully disclosed the terms of the Gateway Services Agreement to such Merchant and enabled such Merchant to print, download, or otherwise retain a copy of the Gateway Services Agreement; (c) it has all necessary authority and authorizations from such Merchant and its owners to execute the Gateway Services Agreement on its behalf; (d) upon execution of the Gateway Services Agreement, the Merchant will be bound by all of the terms of such Gateway Services Agreement, including any modifications to the terms made by Velox from time to time. Velox will review each submitted registration and Gateway Service Agreement acceptance, and may approve or decline such Merchant’s use of the Services at its sole discretion. Velox reserves the right to refuse to provide the Services to any person or entity in its sole discretion and makes no guaranty, representation, or warranty with regard to approval or acceptance of any person or entity. In connection with certain Services, the approval of a third party service provider may be required prior to the provision of such Services, in which case the third party service provider may approve or decline the prospective Merchant in its sole discretion. Company will promptly update Velox in writing with any change to information previously supplied by Company to Velox.
2.6. Ethical Responsibilities. Company agrees to: (a) perform its obligations under this Agreement in the highest professional manner and in compliance with applicable law and Rules; (b) conduct its business in a manner that at all times reflects favorably on Velox and its reputation and goodwill; (c) avoid deceptive, misleading, abusive, and unethical practices and marketing material; and (d) avoid disparaging Velox or its directors, officers, vendors, suppliers, and customers.
2.7. Non-Solicitation. During the term of this Agreement and for five (5) years after termination of this Agreement, Company and each principal, affiliate, employee, and agent of Company will not, directly or indirectly: (a) cause any Merchant or sales representative of Velox to terminate its agreement or relationship with Velox, (b) solicit for itself, solicit for any third party, or contract with any Merchant, vendor, or sales representative of Velox for any product or service that is similar to the Services, or (c) interfere with Velox’s relationship with any Merchant, vendor, or agent.
2.8. Delegation. Company shall not delegate performance of any of its obligations under this Agreement, other than to its own employees, without Velox’s prior written consent. Company will ensure that all of its employees and any other authorized person performing any obligation in connection with this Agreement or the Services is properly qualified and experienced.
Article III. Fees
3.1. Payment Terms. Velox will, directly or indirectly, generate and make available to each Merchant (through an online portal, e-mail, processing statement, or such other method designated by Velox from time-to-time) an invoice setting forth those amounts due to Velox from such Merchant (“Fees”), including without limitation those fees incurred for use of the Services. Such invoices will typically be generated monthly, but may be generated more frequently if the amount owed by a Merchant exceeds certain thresholds established by Velox from time-to-time. Pursuant to the Gateway Services Agreement, each Merchant must maintain a depository account at a bank or other financial institution acceptable to Velox (each an “Account”) and authorize Velox or its representatives to debit or credit such Account via automated clearing house transactions for all Fees and other amounts due under the Gateway Services Agreement. Merchants must pay all Fees and other invoiced amounts to Velox in accordance with the Gateway Services Agreement. Velox may, at its sole discretion, suspend or terminate its provision of the Services to any Merchant in accordance with the Gateway Services Agreement, including without limitation due to such Merchant’s failure to pay any Fee when due. Company will assist Velox, as requested by Velox from time-to-time, in connection with the collection of any amounts due from a Merchant.
3.2. Merchant Fees. The Fees charged to a Merchant for the Services will be determined by Velox, in its sole discretion, and may be modified from time-to-time by Velox in accordance with the Gateway Services Agreement. Unless Company has obtained Velox’s prior written consent, Company will not make any representation, warranty, or commitment to any Merchant regarding the Fees or rates charged, including without limitation regarding any modification of the Fees. Company will promptly notify Velox of any dispute involving a Fee. Velox may set off any amounts owed by Company or Processor to Velox against any amounts owed to Company or Processor by Velox.
Article IV. Confidentiality
4.1. Confidentiality. Company agrees that, except as necessary to perform its obligations under this Agreement, it will not use or disclose to any third party any information, trade secrets, or data belonging to or relating to Velox, including, but not limited to, all information regarding the Services or Velox’s or its vendors’ business, the terms of this Agreement, pricing offered to Merchants, transactional data of Merchants, and the API and related documentation and instructions, all of which the parties agree belongs to Velox. Velox may issue credentials to Company which allow Company or its Products to interface with the Services, including but not limited to submitting transactions and accessing certain reporting or other information. Company will maintain the confidentiality of all credentials used to access the Services and will not allow any unauthorized party access to or use of such credentials. Company will restrict access to such credentials to its employees and agents who have a need for such information in the performance of Company’s obligations under this Agreement, and Company will ensure that each such employee and agent accessing and using Company’s account is aware of and complies with all applicable provisions of this Agreement regarding such use and access. Company will remain responsible and liable for the acts and omissions of its employees and agents and any other recipient of Company credentials, transaction data, or other confidential information. Velox may revoke Company’s credentials or otherwise deny Company access to any reporting, information, or the Services, including but not limited to Velox’s website or online management tools, in whole or in part, at any time in Velox’s sole discretion and without any liability or obligation to Company. All information associated with the Services, including the credentials issued by Velox and any information accessed using such credentials (including but not limited to information available through Velox’s online portal), shall be considered Velox’s confidential information. Company will safeguard all confidential information and data using the same degree of care and discretion that it uses to protect its own confidential information, but in no case less than a reasonable degree of care (or greater degree of care to the extent required by the Rules or applicable law). Notwithstanding the foregoing, this provision will not prevent Company from disclosing information that: (a) is in the public domain through no act of Company in breach of this Agreement, (b) was in possession of Company prior to its disclosure under this Agreement, (c) was received from a third party (other than a Merchant) with no restriction on use or disclosure, or (d) is required to be disclosed by state or federal law, court order, or subpoena, provided that in such case, Company will immediately notify Velox of such required disclosure so that Velox may seek a protective order, and Company will fully cooperate with any such efforts by Velox to contest or limit the required disclosure.
4.2. Defend Trade Secrets Act. Pursuant to the Defend Trade Secrets Act of 2016, the parties understand that an individual may not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (a) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.
Article V. Data Usage and Compliance
5.1. Compliance. Company will at all times conduct its business in a manner that reflects favorably on the goodwill and reputation of Velox and will not engage in any unethical business practices. Company will comply with all Rules, applicable laws, and Velox’s security protocols, policies, notices, and safeguards in effect during the term of this Agreement, as they may be updated from time to time. Company will not store any non-public personal information related to this Agreement or any prospective, current, or former Merchant, including but not limited to transaction information and card numbers, without Velox’s prior written consent. Company will ensure each of its Products, each Merchant’s use and access of the Services through or in connection with such Products, and each Processor complies with all Rules and applicable laws, including without limitation those security requirements designed to prevent PIN-entry devices from being manipulated, exchanged, or used in an unintended way. To the extent the Products read, transmit, or store any names, social security numbers, addresses, card numbers, or other personally identifiable or confidential information, Company will ensure each Product meets the data security standards set forth in the Rules and implement security measures in the Products sufficient to prevent unauthorized access to or use of such information. Company will promptly obtain from each Merchant and submit to Velox (in connection with a Merchant’s registration or otherwise upon Velox’s request) all information reasonably requested by Velox, a Card Brand, or any regulatory authority. Company agrees to provide notice to Merchants that discloses how and why personally identifiable data is collected and used in accordance with applicable law, including the uses governed by this Agreement. Company agrees not to use, disclose, sell, disseminate, or allow access to any card, cardholder, or other transaction information obtained in connection with a transaction to any person or entity other than to Velox or a Processor for purposes of processing a Merchant’s transaction pursuant to the Gateway Services Agreement or the Merchant’s agreement with the Processor, or as otherwise required by a court order, governmental agency request or subpoena, or applicable law. Company understands and agrees that Velox will under no circumstances be held liable for any damages resulting from Company’s (or Company’s employees, contractors, or agents) noncompliance with any of the above, and Company will defend, hold harmless, and indemnify Velox against all damages resulting from such noncompliance by Company or its employees, contractors, or agents. Velox or its designated representatives may, from time-to-time, upon written notice to Company, inspect Company’s books and records to ensure Company’s compliance with this Agreement.
5.2. Data Security. Company will be solely responsible for its Products, including the proper, error-free, and secure integration of such Products with the Services and all security of data (including without limitation cardholder and transaction data) accessed, stored on, or sent through such integration or Company’s networks and servers. Company represents and warrants that it has taken all precautions necessary to ensure that all transaction data, cardholder data, and personally identifiable data are adequately protected and that Company’s Products and networks, servers, and other electronic systems are secure from access, breach, intrusion, or compromise by any unauthorized third parties (including but not limited to those networks, servers, and electronic systems of any vendors or third parties used by Company). In the event that Company’s Products or systems (or its vendor’s or third party service provider’s systems) are or may have been breached, or unauthorized persons have or may have gained access to such systems, Company’s credentials, or any personal data or transaction data, Company shall promptly: (a) notify Velox in writing of such occurrence; (b) notify any affected parties as required under any applicable laws or industry guidelines; (c) take all actions and precautions necessary to prevent any continuous or additional breach; and (d) commence all remedial efforts and other actions required under applicable laws, regulations, or Rules.
5.3. Security Measures. In addition to any other security measures required under this Agreement or applicable law or Rules, Company shall implement: (a) controls for access to its premises and equipment using multi-factor authentication, physical keys or keycards, and other appropriate access control measures; (b) controls for access to its systems including without limitation reasonable password policies, automatic locking, and restricting remote access to secured connections using tokens, public/private keys, and password authentication; (c) controls for access authorization; (d) controls for data transfer using encryption/tunneling and secure transferring of data; (e) logging of inputs; (f) a formalized and controlled complaint and notice process in connection with Merchants; and (g) other appropriate data security measures, including but not limited to segregation or separation and encryption of personally identifiable information, virus protection, firewalls, and other measures.
5.4. Data Retention. Company shall use proper controls for, and limit access to, all transaction data, cardholder data, and other personally identifiable data. Prior to discarding any such data, Company shall render all such data unreadable in accordance with industry standards and abide by any laws, regulations, or Rules applicable to data destruction and disposal. Company and its Merchants are solely responsible for compiling and retaining permanent records of all data for their reference, to the extent such actions are permitted by law or Rule. Except as otherwise provided in this Agreement or required by law, Velox is under no obligation at any time (including upon termination of this Agreement) to store, retain, report or provide any copies of or access to any records of transactions or other data collected or processed by Velox.
5.5. Unmasked Sensitive Processor Information Acknowledgment. In the event Company requests Velox to unmask certain sensitive processor information, including but not limited to merchant identification numbers, terminal identification numbers, passwords, and other sensitive or confidential information (collectively, “Processor Information”), which Velox routinely truncates, encrypts, or hides in order to protect such information from unauthorized use, Company understands that revealing Processor Information in the clear removes the protection afforded such information that otherwise would be present if Processor Information was masked, and that Velox advises not to unmask such Processor Information. Therefore, Company agrees to assume all risk of loss on and liability incurred by it or by any Merchant on whose behalf it is requesting Velox unmask Processor Information. For all such requests, Company represents and warrants that it is authorized to make such request for the subject Merchant. Notwithstanding anything to the contrary contained in any agreement Company has or any agreement any Merchant has with Velox, to the maximum extent permitted by law and in addition to any indemnity obligations Company may otherwise have, Company will defend, hold harmless and indemnify Velox and its employees and agents from and against any claim, threat of claim, liabilities, losses, costs, and expenses (including attorney’s fees and costs) incurred by Velox or brought by any third party against Velox arising out of complying with Company’s request to unmask Processor Information. If there is any inconsistency between the terms of this Section and the terms of any agreement Company has entered into, the terms of this Section will prevail.
Article VI. Intellectual Property
6.1. Ownership. As between Velox and Company, all right, title, and interest in and to the Services are owned exclusively by Velox (or its licensors and suppliers), including without limitation all intellectual property rights of any kind in the Services and all related software, hardware, source code, technology, trademarks, trade names, trade dress, logos, patents, copyrights, trade secrets, and domain names, including any derivatives made of any of the foregoing (collectively, “IP Rights”). The Services and all IP Rights granted hereunder are licensed, not sold, even if for convenience terms such as “purchase” or “sale” are used. Company agrees that it shall not (and shall not permit Merchants or any other party to): (a) use the IP Rights in any manner other than as expressly permitted under this Agreement; (b) do anything to contest or impair the IP Rights; (c) modify, copy, sell, lease, loan, sub-license, distribute, timeshare, transfer, create derivative works of (expect as expressly provided in this Agreement), disassemble, de-compile, or reverse engineer the Services or any IP Rights therein; or (d) attempt to extract the source code or source listings or any algorithm, data, process, procedure, or any other portion of the Services or any IP Rights therein. Company shall immediately notify Velox if it becomes aware of any unauthorized use of the IP Rights. The parties agree that all improvements, enhancements, modifications, or derivative works made with respect to the Services (by any party) shall be the exclusive property of Velox, even if suggested, designed, or submitted to Velox by Company. Company may not modify the Services in any way without Velox’s prior written consent. Company will immediately notify Velox if Company becomes aware of any unauthorized use or copying of the Services or any portion thereof. Company will not access or use the Services or its license thereto for any reason other than the integration of its products into the Platform and the submission of Merchant transactions in accordance with this Agreement. The license granted herein is subject to the terms of this Agreement and shall be deemed revoked by Velox upon termination of this Agreement.
6.2. Trademarks. Company shall comply with all standards with respect to the Velox Marks furnished by Velox from time to time. Company hereby acknowledges and agrees that all right, title, and interest in and to the Velox Marks belong to Velox, and that all usage and goodwill of the Velox Marks shall inure to the benefit of Velox. Company shall not use, register, or attempt to register any trademarks or domain names that are confusingly similar to the Velox Marks or Velox’s domain names, nor use the Velox Marks in any manner that would indicate that Company has any rights thereto other than as a licensee. Velox reserves the right to revoke Company’s rights to the Velox Marks at any time in Velox’s sole discretion. This Agreement does not authorize Company to use or display, in any manner, any names or trademarks of the Card Brands. Company shall immediately cease use of all Velox Marks upon the earlier of (a) termination of this Agreement or (b) written notice from Velox revoking Company’s right to use or display such Velox Marks.
6.3. Updates. Velox reserves the right to (but has no obligation to) release new, updated, or modified versions of the Services at any time, in its sole discretion. These updates and releases may include security updates; new or different features, functionality, or content; or other modifications as determined in Velox’s sole discretion, including without limitation as required for compliance with updated laws or Rules, or for any other reason. For each release, Velox will take reasonable efforts to provide Company with access to a description of the major changes of the newly released version compared to the previous version. If Company uses the API or developer frameworks provided by Velox and an updated version of these has been released, Company shall update to the latest version of the API or developer framework within that timeframe specified by Velox, but in all cases within three (3) months of the release of such updated version.
6.4. Company Marks. Company represents and warrants to Velox that it has all right, title, and interest in, or valid license to use, all of its intellectual property rights, including but not limited to its name and logo, and Company’s intellectual property does not violate the intellectual property rights or other proprietary rights of any third party. Company authorizes Velox to display Company’s name and logo in Velox’s customer lists, on its website, in other promotional materials, on statements and reports generated for Merchants or Company, or elsewhere in connection with the Services, this Agreement, or Velox’s promotional materials.
Article VII. Liability
7.1. Representations and Warranties. Each party represents and warrants to the other that as of the Effective Date and throughout the term of this Agreement it is: (a) properly registered, validly existing, and in good standing under the laws of the state where its principal office is located, (b) it has full authority and corporate power to execute this Agreement and perform its obligations under this Agreement, and (c) its performance of this Agreement will not violate any law, regulation, or other agreement to which it may now or hereafter be bound. Company will not make any representation or warranty on behalf of Velox or regarding the Services without Velox’s prior written consent. Company shall take all commercially reasonable action to verify that each referred merchant conducts or intends to conduct a bona fide business operation, and for each Merchant boarded or to whom Company grants access to the Services, Company represents and warrants that to the best of its knowledge, (i) such Merchant will only use the Services in connection with such bona fide business operation and in accordance with all applicable laws, regulations, and Rules; and (ii) such Merchant is not engaged in any business operation prohibited by any applicable law, regulation, or Rule.
7.2. Disclaimers and Limitation of Liability. EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS ARTICLE VII, VELOX DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE SERVICES, INCLUDING WITHOUT LIMITATION ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, ACCURACY, ERROR-FREE OPERATION, AVAILABILITY, SECURITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR THAT THE SERVICES WILL MEET COMPANY’S EXPECTATIONS OR OTHERWISE BE COMPATIBLE WITH COMPANY’S PRODUCTS OR ANY PROCESSOR. USE OF AND ACCESS TO THE SERVICES ARE OFFERED SOLELY “AS IS” AND VELOX AND ITS VENDORS AND SUPPLIERS MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICES. ALL USE OF THE SERVICES IS AT COMPANY’S OR THE RESPECTIVE MERCHANT’S SOLE RISK. VELOX ALSO DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE ACCURACY, COMPLETENESS, AND NOT-MISLEADING NATURE OF ANY INFORMATION, REPORTS, OR OTHER DATA PROVIDED BY VELOX TO COMPANY, INCLUDING ANY REPORTING OR DATA ACCESSIBLE THROUGH VELOX’S ONLINE PORTAL, AND ALL SUCH INFORMATION IS PROVIDED SOLELY “AS IS”. IN NO EVENT WILL VELOX OR ITS VENDORS AND SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY NATURE (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST OR INJURED REPUTATION, LOST BUSINESS, OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES) FOR ANY REASON, REGARDLESS OF THE FORM OR ACTION, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY. THE LIABILITY, IF ANY, OF VELOX TO COMPANY OR TO ANY THIRD PARTY FOR ANY CLAIMS, COSTS, DAMAGES, LOSSES, AND EXPENSES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE, WILL NOT EXCEED IN AGGREGATE THE AMOUNT OF FEES PAID BY COMPANY TO VELOX FOR THE PRECEDING FOUR (4) MONTH PERIOD MEASURED FROM THE DATE THE LIABILITY ACCRUES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL VELOX BE LIABLE FOR ANY AMOUNTS ARISING OUT OF ANY ACT OR OMISSION OF ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO A SPONSOR BANK OR VENDOR PROVIDING THE SERVICES OR ANY PORTION THEREOF TO COMPANY OR A MERCHANT. COMPANY UNDERSTANDS THAT DATA TRANSFERRED OVER COMMUNICATION NETWORKS IS SUBJECT TO INTERCEPTION OR DELAYS, EACH OF WHICH MAY RESULT IN DAMAGES, AND VELOX WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY SUCH INTERCEPTION, DELAY, OR DAMAGES. VELOX WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR COMPANY’S OR ANY MERCHANT’S FAILURE TO COMPLY WITH ANY RULES, LAWS, OR REQUIRED SECURITY MEASURES. IN NO CASE WILL VELOX BE LIABLE FOR ANY: IMPROPERLY PROCESSED OR UNAUTHORIZED TRANSACTIONS; ILLEGAL OR FRAUDULENT ACCESS TO COMPANY’S ACCOUNT OR MERCHANT’S ACCOUNT; ANY CHARGEBACK, RETURN, CREDIT, REFUND, PROCESSING FAILURE, DUPLICATED TRANSACTION, INCORRECT TRANSACTION AMOUNT, IMPROPER INTERCHANGE CLASSIFICATION, OR DELAY; CREDIT CARD FRAUD; AUTHORIZED TRANSACTION WHICH TURNS OUT TO BE FRAUDULENT OR UNAUTHORIZED TRANSACTION WHICH TURNS OUT TO BE LEGITIMATE; OR THE UNAUTHORIZED USE OR DISCLOSURE OF ANY PERSONALLY IDENTIFIABLE DATA OR CONFIDENTIAL INFORMATION.
7.3. Updates and Beta Features. Without limiting any other provision in this Agreement, Velox will not be liable for any damages resulting from the Services or software for which an update has been released, if Company has not implemented the update in the required time period associated with such update, not to exceed three (3) months.. Furthermore, in the event Velox makes available beta or pre-release versions or features of the Services or related software (“Beta Features”), such Beta Features shall be provided “as is,” without warranty of any kind. Velox has no obligation to provide Company with any documentation for Beta Features, and Company agrees that it and the Merchants each use Beta Features at their own risk. Beta Features may be changed, replaced, or removed by Velox at any time without prior notice.
7.4. Indemnification. Company agrees to indemnify, defend, and hold harmless Velox, its employees, directors, officers, agents, and vendors from and against any loss, liability, damage, penalty, or expense (including attorney’s fees and court costs) claimed by Velox or any third party related to or arising from: (a) a failure by Company or its employees, agents, or Merchants to comply with the terms of this Agreement or any Gateway Services Agreement; (b) a representation, warranty, advertisement, or claim made by Company or its employees or agents being false, fraudulent, or misleading; (c) the negligence, fraud, dishonesty, or misconduct of Company or its employees, agents, or Merchants; (d) any unauthorized access, disclosure, or use of personally identifiable information, card or transaction information, or other confidential information by, through, or from Company, a Merchant, or their employees, agents, vendors, or third party services providers, including but not limited to such information being wrongfully obtained from or through a Product or any networks or server owned, operated, or used by Company or a Merchant; (e) any violation of an applicable law, regulation, or Rule by Company, Merchant, or their employees or agents; (f) any Merchant or the use of the Services by a Merchant or other third party; (g) any rejected transaction or any claim against the reliability, accuracy, or legitimacy of transaction data; (h) any error, failure, or malfunction of any Product; (i) any use or misuse of the Services by Company or its employees, agents, or Merchants, whether or not such use is pursuant to a Gateway Services Agreement; (j) Company’s execution or acceptance of a Gateway Services Agreement on behalf of a Merchant or such other third party, whether or not authorized by such Merchant or third party; (k) Company’s actual or alleged violation of any third party’s intellectual property rights or other proprietary rights; (l) Company’s failure to properly integrate the services or implement and comply with the API or other instructions or documentation available from Velox; (m) the Services infringement of any third party’s intellectual property rights if such infringement is a result of Company’s integration of the Services, a combination of the Services with Company’s products or services, or a customization requested by Company.
Article VIII. Term and Termination
8.1. Term. This Agreement is effective on the Effective Date, will remain in effect for a period of five (5) years, and will thereafter automatically renew for successive two (2)-year periods unless terminated earlier in accordance with the provisions of this Agreement.
8.2. Termination. Notwithstanding the above, the parties will have the following rights:
(a) Required. Velox may terminate this Agreement if (i) a Card Brand or Velox’s sponsor institution prohibits Velox from providing the Services generally, through Company, or pursuant to this Agreement; (ii) Velox’s right or license to supply the Services is terminated for any reason; or (iii) changes in law, regulation, or Rule renders it impossible or commercially unreasonable, in Velox’s opinion, for Velox to continue to provide the Services.
(b) Without Cause. Either party may terminate this Agreement effective at the end of the then-current term by providing the other party with at least forty-five (45) days prior written notice.
(c) For Cause. Velox may terminate this Agreement if Company: (i) files for bankruptcy, receivership, dissolution, liquidation or a similar proceeding, has such a proceeding instituted against it, makes an assignment for the benefit of creditors, or a trustee, conservator, or receiver is appointed for it, (ii) breaches this Agreement and such breach is not cured within twenty (20) days of receipt of written notice, (iii) breaches Articles III (Confidentiality), IV (Data Usage and Compliance), or V (Intellectual Property) of this Agreement, (iv) fails to pay any amounts owed to Velox when due; or (v) fails to act in an ethical manner or engages in an act or omission which may damage Velox’s reputation, business, or goodwill, or which are otherwise detrimental to the achievement of Velox’s business objectives, in Velox’s sole discretion.
(d) Partial. Velox may terminate one or more of the Services, and such termination shall not constitute a termination of this Agreement, if (i) Velox’s license or right to provide such affected Service expires or is terminated; (ii) provision of such Service is, in Velox’s sole discretion, no longer reasonable, feasible, or unduly burdensome due to any change in applicable law or the Rules; (iii) such Service becomes affected by or is in violation of any third party’s rights; or (iv) Velox has elected to discontinue such Service or replace such Service with an alternative Service.
(e) Merchants. Velox may terminate any Merchant’s participation in the Services, at any time and without notice to Company, in accordance with the Gateway Services Agreement. Termination of a Gateway Services Agreement will not terminate this Agreement and termination of this Agreement will not terminate a Gateway Services Agreement.
(f) Effect. Upon termination of this Agreement, Company shall return to Velox all equipment, literature, documentation, materials, and confidential information of or received from Velox and shall securely destroy all copies, derivative works, and excerpts thereof, except to the extent that Company is required to retain such information by law, in which case Company shall not use or disclose any such information and upon the expiration of such legal requirement Company will immediately comply with the obligations in this Section 8.2(f). Certain sections of this Agreement will survive termination as set forth in Article IX.
Article IX. General
9.1. Miscellaneous. This Agreement, including the attached schedules, exhibits, and attachments, sets forth the entire understanding of the parties relating to its subject matter and supersedes any other agreement between the parties relating to its subject matter. This Agreement and the attached Schedule A may only be amended: (a) in a writing executed by both parties or (b) by Velox upon ten (10) days prior written notice to Company. Velox may modify the Services or any portion thereof at any time in its sole discretion. All notices provided under this Agreement will be in writing and will be delivered in person, by mail courier, return receipt requested or by a nationally recognized overnight service, to the address set forth in the first paragraph of this Agreement. Notwithstanding the foregoing, Velox may provide notice to Company by posting such notice electronically through Velox’s online portal, such notice effective upon posting, or by sending such notice to the e-mail address then on-file for Company (and Company may update such email address upon written notice to Velox in accordance with this section). Company will check Velox’s online portal at least daily to view and save, download, and/or print any such notices. Each party will pay its own taxes with respect to this Agreement and Velox will not be obligated to withhold any amount on Company’s behalf. If any provision of this Agreement is deemed illegal, the invalidity of such provision will not affect any other provision, and this Agreement will be construed as if the illegal provision is not contained in the Agreement. No failure or delay by any party in exercising any right under this Agreement will operate as a waiver of that right, nor will any single or partial exercise of a right preclude any further exercise of that right. This Agreement will not be deemed to be for the benefit of any third party. Company shall have no interest in or rights under any Merchant Agreement and each Merchant Agreement shall be solely owned by Velox or its vendors. Company is not a third party beneficiary of any Merchant Agreement or any agreement between Velox and any third party. This Agreement will be construed exclusively in accordance with the laws of the State of California without regard to principles of conflicts of law. The parties irrevocably submit to the exclusive jurisdiction of the state and federal courts in Santa Clara County, California, in any action, suit or proceeding brought under this Agreement and waive, to the fullest extent it may do so, the defense of forum non conveniens. The parties waive the right to a jury trial in connection with any dispute arising between the parties for any reason. In the event of any action or proceeding arising out of or related to this Agreement, Velox and Company hereby agree that the prevailing party shall be entitled to recover from the other party its reasonable attorneys’ fees and expenses including, without limitation, court and expert witness fees. Velox and Company are independent contractors and neither party shall make any representation otherwise. Any delay in Velox’s performance, or any non-performance by Velox, of its obligations shall be excused if such delay is due to a cause or event beyond Velox’s reasonable control. Velox may assign or transfer all or a portion of this Agreement or any Merchant Agreement at any time without notice. Company may not sell, assign, or otherwise transfer this Agreement, or any portion or right contained in this Agreement, by operation of law or otherwise, without the Velox’s prior written consent. Subject to the foregoing, this Agreement will inure to the benefit of and will be binding upon the parties and their permitted successors and assigns. The obligations in Articles III–VII and IX shall survive termination of this Agreement. In addition, termination of this Agreement will not terminate any liability of Company to Velox related to this Agreement, transactions processed prior to such termination, or Merchants boarded prior to such termination. This Agreement may be executed and delivered in two or more counterparts, each of which when executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. The signatures to this Agreement may be evidenced by facsimile or PDF copies of such signatures, and any such facsimile or PDF copy shall be sufficient to evidence the [email protected] of such party as if it were an original signature.