Subscription Agreement - AI Restaurant Marketing

LICENSE AND SUBSCRIPTION AGREEMENT

This License and Subscription Agreement (the “Agreement”) is between AIRestaurantMarketing.us (“MSP”) and the customer identified in the accompanying Order (“Customer”).

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCEPTING IT. THIS AGREEMENT GOVERNS THE LICENSE AND USE OF THE HOSTED SERVICE AND SOFTWARE OFFERED BY MSP AND PROVIDED TO CUSTOMER UNDER THE ORDER SIGNED AND AGREED TO BY CUSTOMER.

This Agreement is effective between Customer and MSP as of the date Customer signs the Order (the “Effective Date”). The person accepting the Order and this Agreement on behalf of Customer represents that he or she has the authority to bind such entity to these terms and conditions. These terms apply to you (being the Customer restaurant participating in MSP Services) (referred to hereinafter as “you”, “your” or “the Retailer”) and your access to and use of the “MSP Platform Service”.

RECITALS:

MSP has contracted with Third Parties who have developed certain Software, as defined below, enabling online completion, and signing of form documents, that is available to access on MSP’s Website as a Hosted Service, together with other content and materials provided by MSP on the Website or otherwise.
Customer desires to access and use the Hosted Service, and MSP desires to provide such access to Customer, subject to the terms and conditions of this Agreement.

In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, MSP and Customer agree as follows:

AGREEMENTS:

In consideration of the mutual promises set out in this Agreement, MSP and Customer agree as follows:

Definitions.

“Authorized Users” means individual employees of Customer who are authorized by Customer to access and use the Hosted Service. Subject to MSP’s prior written approval, Authorized Users may also include consultants or independent contractors of Customer who are using the Hosted Service solely for Customer’s own internal business purposes.

“End User(s)” means your customer’s and potential customers, and any others who will be accessing, filling out and completing reservations, pick-up and delivery orders online through the Hosted Service.

“Confidential Information” means MSP’s pricing, Customer Data, either party’s non-public business and technology information, the Software, trade secrets, any information which reasonably should be understood to be confidential. Confidential Information excludes information that the receiving party can document: (i) is or becomes generally available to the public without fault of the receiving party; (ii) was rightfully in the receiving party’s possession prior to its disclosure by the other party; (iii) is independently developed without the use of any Confidential Information of the disclosing party; or (iv) is obtained without obligation of confidentiality from a third party who has the right to disclose it. The receiving party also may disclose Confidential Information to the extent required under a judicial or legislative order or proceeding or as necessary to comply with open records acts or other freedom of information laws or regulations; provided that it gives the disclosing party, if legally permissible, reasonable prior notice and an opportunity to respond or object to the disclosure.

“Customer Data” means all electronic data or information input by End Users, Customer and Authorized Users into the Hosted Service, including any Personal Data of End Users or other individuals. Customer Data does not include Feedback or Usage Data.

“Customer Forms” means form documents of Customer to the Hosted Service, for End Users to fill out and complete online orders.

“Documentation” means MSP’s online user instructions and/or manual for the Hosted Service, as updated by MSP from time to time.

“Feedback” means any suggestions, enhancement requests, complaints or other feedback from Customer, Authorized Users or End Users relating to the Hosted Service, Software or MSP’s Services.

“Hosted Service” means the subscription service providing online access to the hosted Software and Customer Forms, and any related products and Services offered by MSP that are made available online at the Website, including any associated offline components, as described in the Documentation. The Hosted Service will be hosted either on MSP servers or the servers of a third party that in the business of hosting web- or cloud-based software applications. “Hosted Service” excludes any third party applications and software products that are owned by entities or individuals other than MSP and that may interoperate with the Hosted Service or Software, including but not limited to those listed or provided on the Website or together with the Hosted Service.

“Malicious Code” means any virus, worm, trap door, back door, snoopware, spyware, malicious logic, Trojan horse, time bomb or other malicious software functionality that would intentionally erase or render the Hosted Service unusable or intentionally interfere with the use of the Hosted Service or an Authorized User’s computer system or software.

“Modifications” means updates, upgrades, patches, improvements, enhancements, bug fixes, additional features, and other modifications to the Software or Hosted Service.

“Order(s)” means the electronic or written documents for placing orders hereunder for Customer’s access to the Hosted Service, to add additional licenses to Customer’s account, or for any other Services of MSP. Orders are subject to acceptance by MSP. Orders are incorporated into this Agreement by reference.

“Security Vulnerability” means a flaw or weakness in system security procedures, design, implementation, or internal controls that could be accidentally triggered or intentionally exploited and result in a security breach, such that Customer Data is compromised or stolen.

“Services” means technical support, Software maintenance, and other services offered by MSP to customers as part of or in connection with the Hosted Service, including consulting or other professional services for which MSP may charge a separate fee.

“Site” means a geographic office or business location of Customer that is authorized to access and use the Hosted Service, as specified in an Order submitted by Customer and accepted by MSP.

“Software” means the MSP application using AI and web-based technology in the MSP Platform, which generates marketing content using AI (ChatGPT) which is then enhanced by our internal middleware, before being delivered to you for a final check and edit. You can access the MSP Platform from any web enabled device. The MSP Platform also includes optional online ordering which will display your menu and provide an online ordering process that enables customers to place an order for delivery (“Delivery Orders”) and/or for pick-up (“Pick-up Orders”). The Delivery Orders will be delivered by the third-party delivery service of your choice. MSP shall make the Software available to Customer as part of the Hosted Service, including Modifications. Software will be provided to Customer only through online access as part of the Hosted Service.

“Term” means the Initial Term of this Agreement together with any and all Renewal Terms.

“Website” means the applicable MSP website for Customer, where the Hosted Service will be accessed by Customer and its Authorized Users via a Customer login, and/or other web pages designated by MSP where resources and Services related to the Hosted Service are provided by MSP (excluding third party websites).

MSP grants Customer a non-exclusive, non-transferable license, during the term of this Agreement, and solely for use by (i) Authorized Users who are associated with the particular Site(s) authorized under an Order, and (b) End Users who are doing business with Customer at those Sites. The Hosted MSP Platform Service, which includes but is not limited to the following apps and websites, is subject to the following license terms and limitations:

MSP Showcase (the page on MSP’s website listing retailers);
MSP Retailer Showcase (the online and mobile platform where a retailer’s customers’ can view and search for menus and/or place an order)
MSP Local App (the mobile app allowing customers to place a mobile order for pick-up or delivery);
MSP Gateway (a website through which Retailer may and regularly should review and confirm its transactions, fees and charges and account);
MSP Tablet App (the order handling tablet app which enables pick-up and delivery fulfillment for orders placed directly with the Retailer by the Customer); and
MSP CRM (the customer relationship management platform for utilizing your collected data to automatically market to your customer).
MSP AI (the AI generated Human edited bespoke marketing created and distributed for the retailer)

Use of Hosted Service. Use of the Hosted Service and Software is limited to Customer’s own internal business purposes and the authorized Site(s) specified in an Order submitted by Customer to MSP and accepted by MSP, which acceptance shall not be unreasonably withheld. Customer is granted the right (i) to authorize Authorized Users to access and use the Hosted Service and related materials made available as part of the Hosted Service by MSP, and (ii) to authorize and instruct End Users to access and use the Hosted Service solely for the purpose of accessing and completing Customer Forms. Customer, Authorized Users and End Users are authorized to use the Software only as part of the Hosted Service, except as otherwise specifically set forth in this Agreement.

Modifications. Customer acknowledges and agrees that the Hosted Service, Website, Software and other materials that may be made available as part of the Hosted Service may be updated and changed from time to time with Modifications, in MSP’s sole discretion, provided that such Modifications do not materially alter the functionality of the Hosted Service, Website, Software or materials.

Proprietary Rights Notices. Customer shall not remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices placed or embedded by MSP on or in the Hosted Service, Website, any Software, or related Documentation.

Restrictions. Customer and its Authorized Users will not:

use the Hosted Service for any unauthorized Site or business, including for the benefit of any third party business;
modify or create derivative works of the Hosted Service or Software
use the Hosted Service or Software to develop a competitive product or service, or copy any features, functions or graphics of the Hosted Service, Software or Website, or allow a direct competitor of MSP to access the Hosted Service through Customer’s or its Authorized Users’ accounts;
reverse engineer, disassemble, decompile or otherwise attempt to derive source code, trade secrets, algorithms, programming methods or Confidential Information from the Software or Hosted Service, except to the extent expressly permitted by applicable law;
upload any Customer Form or Customer Data that contains any libelous or unlawful material or any materials or instructions that may cause harm or injury, or violates any person’s right of privacy or any copyright, trademark, or other intellectual property rights.
knowingly use the Hosted Service in any manner which could damage, disable, overburden, or impair the Hosted Service or interfere with any other party’s use and enjoyment of the Hosted Service.
obtain or attempt to obtain any materials or information on or through the Hosted Service through circumventing any access or use restrictions or by any other unauthorized methods, such as hacking or password mining.

Customer is responsible for ensuring its Authorized Users’ compliance with the terms of this Agreement and is liable for any breach of this Agreement by an Authorized User.

You must notify all your store staff members of the relationship with MSP immediately and prior to submitting any support requests to MSP.
You must comply with any MSP policies, and participate in all training, provided to you at on-boarding and from time to time as otherwise provided to you.
You must provide all information, materials and assistance (ensuring it is complete and accurate in all material respects) reasonably required by MSP to on-board you to the MSP Platform and for MSP to ‘build’ your menu. This includes accurate descriptions, prices and minimum 500 x 500 pixel image of menu items to be offered (including any relevant allergen advice). You may set different prices for Retailer Products depending on Pick-Up, Delivery Order and dine-in. Retailer can set prices as they see fit for each category, and MSP shall have no responsibility or input in this.
You must keep your menu up to date and make any required amendments as soon as possible on the MSP
You must update the MSP Platform for any changes to your days and hours of operation (including holidays), and remain open for business on the MSP Platform the same days and hours of operation as your in-store business. If you close earlier than your standard hours of operation or plan to close earlier than your standard hours of operation, you must set MSP Platform to ‘closed’ via the relevant app.
You must display any signage provided by MSP in accordance with our instructions.
You should be available for all orders during your opening hours on the MSP
You must provide each Customer with an official receipt for their Pick-up Order if requested, and on an ongoing basis, you must review and confirm the transactions, fees and charges on orders via the MSP Platform, and promptly communicate to MSP any inaccuracies.
You must via the online order form on the MSP Platform, provide information requested by MSP.
You must accept and collect payments from Customers for their respective orders. You agree, on an ongoing basis, to review and confirm all of your transactions, fees and charges on orders and invoices on the MSP Platform, and to promptly communicate to MSP in writing any claimed inaccuracies, so that MSP has the prompt opportunity to address and resolve any issues and so such issues do not persist, which MSP and Customer agree is in the best interests of both parties and their commercial relationship. Customer agrees to communicate to MSP any disagreement, non-conformity or any issue with any transaction, fee, charge or order within 60 days of the transaction, fee or order. Customer shall be deemed to have acquiesced in and ratified, and to have waived any claim or objection regarding, each transaction, fee, charge and order if Customer does not communicate a written claim or objection to MSP regarding such transaction, fee, charge or order within such 60-day period.
You grant us and our affiliates a non-exclusive, royalty-free license to use your branding which includes your logos, name and website address(es) for the Term. You warrant and undertake that your branding does not and will not infringe any third party intellectual property rights. We can use your branding on the MSP Platform, for marketing purposes and as reasonably necessary to provide the MSP
During the Term, you grant to MSP a royalty-free, non-exclusive, limited, revocable, non-transferable, non-sublicensable right and license to use and display the Retailer Content in the provision of services to you, including listing you as a Retailer on the MSP Platform, referencing you as a MSP partner, and to promote MSP’s products and services. As used herein, “Retailer Content” includes, without limitation, name and website address(es), menus, photographs (either provided by Retailer or on Retailer’s website), trademarks, logos and other materials provided by Retailer to MSP. You warrant and undertake that the Retailer Content does not and will not infringe any third party intellectual property rights and that we can use your Retailer Content on the MSP Platform, for marketing purposes and as reasonably necessary to provide the MSP
If photographs of Retailer’s menu items are not available or if they do not meet MSP’s requirements, as reasonably determined by MSP, then Retailer consents to MSP (i) enhancing the quality of Retailer’s existing photographs by AI or photo editing tools or (ii) using stock photos of the menu item, and displaying such photographs on the MSP Platform as representations of Retailer’s menu items; provided that Retailer may contact MSP support to have such photographs removed.
Customer’s Obligations. Customer is responsible for Customer Data, including Personal Data as entered into, supplied or used by Customer and its Authorized Users and End Users in the Hosted Service and Customer Forms. Customer is solely responsible for determining the suitability of the Hosted Service for Customer’s business and complying with any applicable data privacy and protection regulations, laws or conventions applicable to Customer Data and Customer’s use of the Hosted Service.

Suspension of Access. MSP may suspend Customer’s, Authorized Users’ and/or End Users’ access to the Hosted Service, or remove or disable any account, data or content that MSP reasonably believes violates this Agreement. MSP will use reasonable efforts to notify Customer prior to any such suspension or disablement, unless MSP reasonably believes that: (a) it is prohibited from doing so under applicable law or any judicial or governmental process; or (b) immediate action by MSP is necessary to prevent harm to the Hosted Service or an individual. In such cases, MSP will provide notice as soon as is feasible and permissible.

Geographic Scope of License. The parties agree that the scope of the licenses and rights granted hereunder is limited to the U.S., unless otherwise expressly agreed in writing by the parties. Customer acknowledges that any use of the Hosted Service for End Users residing outside of the U.S. will require additional due diligence efforts to ensure that that the parties are able and ready to comply with data security, privacy, export, and other applicable laws and regulations.

Terms of Use. Authorized Users and End Users using the Hosted Service are subject to MSP’s terms of use as set forth on the Website https://airestaurantmarketing.us/policies/terms-of-use/. MSP reserves the right to modify and update those terms of use in its business discretion from time to time. MSP’s representations, warranties and commitments set forth in this Agreement are made only to Customer, not to its Authorized Users or End Users.

Third Party Software. The parties acknowledge that the Software may contain open source code and other third party software components. Open source components are subject to the applicable third party license terms, which are available upon request. Any other third party software that is embedded in the Software, or provided by MSP as an integrated part of the Hosted Service, is sublicensed by MSP to Customer pursuant to the applicable terms of this Agreement, unless MSP provides a separate third party license(s) for such third party software to Customer. Third party software is licensed only for use in connection with the Hosted Service, unless otherwise permitted under an open source license.

Other Services.

Technical Support and Maintenance. MSP will provide Customer with telephone-based and web-based technical support and maintenance Services to assist Customer in utilizing the Hosted Service. Support Services will be available during MSP’s regular business hours. Customer will also have email access to the MSP technical support division via support@merchantservice.com. MSP technicians will use reasonable, good faith efforts to resolve Customer’s problems. MSP will respond to support telephone calls or e-mail contacts based on: (a) the order that such calls or e-mail are received; and (b) the relative importance of such calls or e-mail as reasonably determined by MSP. MSP may update its support and maintenance policies from time to time, upon notice to Customer.

Professional Services. Upon Customer’s request and subject to a separate Order or statement of work (SOW) between the parties, Customer may purchase training, consulting services, or other professional Services from MSP. All such Services are subject to the terms and conditions set forth in such Order or SOW as well as the terms and limitations of this Agreement.

MSP Ownership. MSP owns and retains all right, title and interest in and to the Hosted Service, including the Software and Documentation, MSP’s trademarks and service marks, the Website and its contents, any custom developments, Modifications, training and other written or electronic documents and materials produced by MSP that relate to the Hosted Service, and all intellectual property rights in the foregoing. The Hosted Service, including the Software, its accompanying Documentation and materials, and any other materials made available to Customer by MSP through the Website or otherwise, may be used by Customer, Authorized Users and End Users only for the purposes described in this Agreement. Any rights not expressly granted herein are reserved by MSP. Neither this Agreement nor any other agreement between the parties changes ownership of any pre-existing software or other materials.

Customer Ownership. As between the parties, Customer owns and shall retain all right, title and interest in and to all Customer Data and to Customer Forms.

Metadata and Usage Data. The Hosted Service may track metadata and other usage data related to Customer’s, Authorized Users’ and End Users’ use of the Hosted Service (“Usage Data”) and provide such data to MSP. MSP shall own such Usage Data, excluding any Personal Data incorporated therein. Customer agrees that MSP shall have the perpetual right to collect, aggregate, use, distribute and sell such Usage Data for any legal purpose, including without limitation for the purposes of providing services and improving the Hosted Service and MSP’s products and services generally. MSP may retain and use Usage Data permanently. To the extent such Usage Data contains any Personal Data, MSP shall not sell or otherwise provide such Usage Data to any third party unless the data been anonymized (e.g., no name or address attached to the particular data) and/or aggregated, so that it is not identifiable as to any particular person. Notwithstanding the foregoing, MSP may share Usage Data in its original form as necessary or appropriate to provide services to Customer and End Users (for example, using a third party to process payments) or to comply with legal obligations or exercise its legal rights.

Feedback. MSP shall have a royalty-free, worldwide, irrevocable, perpetual license to use Feedback and incorporate it into MSP’s software, products and services. MSP shall exclusively own all right, title and interest in and to any software and intellectual property developed or delivered to Customer in the performance of this Agreement, regardless of whether it is based on or incorporates any Feedback, subject to the licenses granted herein to Customer.

Fees. Access to the Hosted Service for Customer and its Authorized Users and Users is subject to timely advance ACH Pre-authorized payment of the fees specified in the applicable Product & Services Order(s) (collectively, the “Fees”). Basic support and maintenance services for the Hosted Service, are included as part of such Fees at no additional charge. MSP may offer optional enhanced support plans for an additional fee. Any ACH reject shall incur a $25 NSF Reject fee or whatever the maximum amount is allowed by law.

Setup and 1^st Month. Payable in advance whenever collected during the initial partial month, shall provide for all costs of setup and the next month of service.

Monthly SaaS Fees. Payable in advance on or around the tenth of the month, shall provide for all costs for the full month of service.

Usage Charges. Payable on or around the 15^th of the month following the month in which they are incurred.

Taxes. Customer is responsible for any applicable sales, use or other taxes or duties associated with this Agreement, other than taxes on MSP’s net income. If Customer is a tax-exempt entity, Customer must provide a tax-exemption certificate to MSP.

Past Due Amounts. If any amounts owed by Customer are thirty (30) or more days overdue, MSP may, without limiting its other rights and remedies: (i) charge interest at the rate of 1.5% per month or the highest rate permitted by law, whichever is less, on the past due amounts; (ii) terminate this Agreement and accelerate Customer’s unpaid fee obligations so that all such obligations become immediately due and payable, and/or (iii) subject to seven (7) days’ prior written notice to Customer, suspend Customer’s and its Authorized Users’ and End Users’ access to the Hosted Service and Customer Forms thereon until such amounts are paid in full. Customer shall also be liable for all costs of collection, including reasonable attorney’s fees, whether or not a suit is instituted.
Other. All amounts paid under this Agreement are payable in U.S. dollars. All Orders are final and all payments are non-refundable, other than as expressly set forth in this Agreement.

Term and Termination.

Term. This Agreement will commence on the Effective Date and will continue for the initial term specified in the applicable Order (the “Initial Term”). At the end of the Initial Term, this Agreement will automatically renew for additional twelve (12) month renewal terms (each a “Renewal Term”) at MSP’s then-current rates, unless a different rate is agreed to in a new Order by the parties, subject to termination as set forth below. Unless otherwise specified in the applicable Order, all Orders will continue for the full Term of this Agreement. Orders shall also automatically renew for additional twelve (12) month Renewal Terms, provided that either party may give the other party written notice of non-renewal of this Agreement or any Order at least sixty (60) days prior to the expiration of the then-current Initial Term or Renewal Term. this Agreement will automatically renew for additional 12-billing month renewal terms (each a “Renewal Term”) at the then-current rates.

Termination Within First Six Months. Customer may terminate this Agreement without cause upon 30 day written notice, which will cease service and billings at the end of the following month. No partial month of service refunds shall be provided.

Termination For Cause. Either party will have the right to terminate this Agreement for cause at any time, upon written notice, in the event of (i) any material breach of this Agreement by the other party, subject to thirty (30) days prior written notice and opportunity to cure such breach; or (ii) the other party’s dissolution, distribution of a substantial portion of its assets, or cessation of all or substantially all of its normal business affairs.

Termination of Professional Services Engagements. If Customer and MSP have agreed upon a Professional Services engagement in an Exhibit to this Agreement, such engagement may be terminated prior to completion thereof only for cause or by mutual written agreement to terminate. If Customer terminates a Professional Services engagement prior to completion thereof without cause or if MSP terminates a Professional Services engagement due to a material breach by Customer, Customer will owe MSP (i) payment in full for all work performed by MSP through the date of termination, and (ii) payment of fifty percent (50%) of the agreed fees for the remaining work that was not yet performed.

Effect of Termination. Upon final termination of this Agreement, Customer and its Authorized Users’ access to the Hosted Service will terminate. Customer will promptly pay all outstanding amounts owed to MSP. If Customer has terminated this Agreement without cause, or if MSP has terminated this Agreement due to a breach by Customer, before the end of the then-current Initial Term or Renewal Term (as applicable), Customer shall owe MSP all subscription fees for the remainder of Customer’s then-current subscription term. Each party will promptly return to the other party all Confidential Information of the other party and delete any copies of such information or materials from its systems and files. Until thirty (30) days after termination of this Agreement, Customer may request MSP to provide a copy of its Customer Data in the Hosted Service database. Such service is subject to an additional service fee, at MSP’s then-current rates. After thirty (30) days from the date of termination of this Agreement, MSP may delete Customer Data from its system. Many provisions of this Agreement will survive termination however caused.

Confidential Information. The receiving party (i) shall not disclose Confidential Information or any information derived therefrom to any person, other than employees and independent contractors with a need to know such information and who are obligated to keep such information confidential; or (ii) use the Confidential Information for any purpose, except as expressly permitted by this Agreement. The receiving party shall give Confidential Information at least the same level of protection as it gives its own information of similar sensitivity, but not less than a reasonable level of protection. Confidentiality obligations shall survive any termination of this Agreement.
Personal Data and Privacy.

Reasonable Safeguards. MSP agrees to maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, including personal information and personal data of Authorized Users, End Users and other individuals (“Personal Data”). MSP will not disclose or use Personal Data except (i) as set forth in the Privacy Policy, (ii) as compelled by law, (iii) as expressly permitted or instructed by the individual owner of such Personal Data, or (iv) as reasonably necessary in order to provide the Hosted Service and other Services. MSP shall require its employees and contractors to be subject to confidentiality undertakings with respect to Customer Data, including Personal Data.

Privacy Policy. The Personal Data that MSP obtains through End User’s, Customers’ or Authorized Users’ use of the Hosted Service, Software, Services or any portion of the Website, whether through the registration process or otherwise, is governed by the MSP Privacy Policy posted on the Website (“Privacy Policy”), which is incorporated into the terms and conditions of this Agreement. The Privacy Policy may be accessed at this link: https://airestaurantmarketing.us/policies/privacy-policy/. If Customer, an Authorized User or an End User does not agree with the Privacy Policy, they may not use the Hosted Service, Software, Services or Website.

Data Processing. MSP may use Personal Data solely as necessary to provide the Hosted Service and Software. If MSP uses Personal Data to enable use of Hosted Service features, Software and Services through use of third-party service providers, MSP will ensure that such third-party service providers will have the same obligations and liability as MSP with respect to Personal Data, MSP may use Personal Data to comply with applicable laws. Except as set forth in this Agreement or the Privacy Policy, MSP shall not share Personal Data with third parties. MSP shall not sell or share Personal Data to third parties except as permitted by this Section.

The types of Personal Data MSP processes include contact information (such as name, address, email, telephone number and IP addresses) for End Users and Authorized Users. MSP’s third party payment processor also receives and processes payment information, including payment card information and data, as set forth in subsection below.

MSP does not process Personal Data of minors under the age of thirteen (13). Minors’ Personal Data must not be submitted by Customer, Authorized Users or End Users to the Hosted Service.

Additional Uses of End User Personal Data. In addition to the uses set forth above, Customer agrees that MSP may use the Personal Data of an End User to contact such End User and provide the End User with a login to access the Hosted Service so that the End User may view the data they entered into a Customer Form. If an End User uses the login and authorizes MSP to retain such End User’s Personal Data in an account for such End User, MSP may retain the End User’s Personal Data for so long as permitted by the End User solely to give the End User the option to use his or her Personal Data for other transactions and forms hosted by MSP for other customers. MSP no circumstances will MSP sell such Personal Data to third parties or share Personal Data for profit. MSP’s receipt of Fees for Hosting Services shall not be deemed to violate this subsection.

Payment Information Security. All payment card information and other payment information of Customer (“Payment Data”) will be processed by an independent third party payment processor. MSP and its employees will not have access to Payment Data or store such data on its servers, other than minimal information such as the last four digits of a credit card or bank account. MSP will use a qualified third party payment processing vendor that offers a token method or similarly secure method for payment and that has committed to comply with PCI DSS standards. However, if a Customer Form requests ACH, bank account or other payment information from End Users who fill out that form, that information will be stored in the Hosted Service, in encrypted form.

Processing in the U.S. The servers that host MSP’ Hosted Service, Software, and Website are based in the United States of America and all content, information, and Personal Data provided through the Website will be received, processed and stored in the United States of America.

Rights of Data Subjects. MSP will comply with End Users’ and other individuals’ requests in respect of the exercise of their rights with respect to their Personal Data under applicable law. Subject to applicable law, MSP shall notify Customer if it receives a request from an End User or other individual for whom it is storing Personal Data in respect of the exercise of the privacy rights of such individual.

Data Breach Notification. In the event of any breach of the security or confidentiality of Customer Data, MSP will immediately inform Customer of the breach as required under applicable law. MSP and Customer will promptly coordinate regarding informing any affected individuals of the breach as required under applicable law. In addition, MSP will make available to Customer all information reasonably necessary for Customer to demonstrate or maintain its compliance with applicable laws regarding data privacy and protection.

Retention of Personal Data. Personal Data shall be retained only as appropriate and legally permissible in connection with Customer’s, Authorized Users’ and End Users’ use of the Hosted Service, Software, Services and Website. MSP shall add, update or delete Personal Data as instructed by Customer for Authorized Users or End Users, or by the Authorized User or End User. MSP shall delete an individual’s Personal Data in response to such individual’s request to delete that data. MSP’s practice is to remove deactivated Personal Data from its central database within a reasonable time, usually after 60 days, and permanently delete such data within a reasonable time, usually after 1 year. Customer authorizes MSP to delete Customer Data from its systems after 30 days from the date of termination of this Agreement. Personal Data will only be further retained by MSP as allowed or required under applicable law or regulatory provisions mandating record retention.

Customer’s Warranties. Customer represents and warrants to MSP that:

Customer has full power and authority to enter into this Agreement and make the agreements specified herein.

Customer has the right to provide the Customer Forms to MSP for the uses specified in this Agreement, and the Customer Forms and Customer’s and MSP’s use thereof as contemplated by this Agreement do not violate any applicable law or regulation.

Customer shall not have any right or authority to make any representations or warranties on MSP’s behalf, except as expressly approved in writing by MSP; or to assume or create any obligations or responsibilities, express or implied, on behalf of MSP; or to bind MSP in any way; except as expressly set forth in this Agreement. MSP shall not be liable for any unauthorized representations or warranties made by Customer.
Customer Data will not violate any person’s right of privacy or copyright, trademark, or other intellectual property rights, and Customer and its Authorized Users will not transmit any such materials to MSP.

MSP Warranties and Disclaimers. MSP warrants to Customer as follows:

MSP has full power and authority to enter into this Agreement and make the agreements specified herein.
MSP warrants, during the Term, that the Hosted Software and Services, when used properly and in accordance with its Documentation and this Agreement, will be free from a reproducible defect that materially adversely affects the operation of the Hosted Service or Software, as described in the Documentation.
MSP shall use reasonable means in the design and writing of its Software to limit Security Vulnerabilities. While no software can be guaranteed to be free from Security Vulnerabilities, if a Security Vulnerability is discovered, MSP will take the steps set forth in Section below.
MSP will use industry-standard, commercially reasonable efforts to keep Malicious Code out of the Software.
MSP warrants that the Hosted Service and Software and Customer’s use thereof does not infringe, misappropriate or otherwise violate any third-party intellectual property right.

Exclusions. MSP’s warranties exclude non-performance issues that result from (i) modification of the Hosted Service or Software by Customer or any person or entity other than MSP, not including permitted configurations made by Customer; (ii) defects or problems that are outside the reasonable control of MSP, including defects or damage resulting from use of the Hosted Service in other than its normal and authorized manner; or (iii) Customer’s or its Authorized Users’ gross negligence in its use of the Hosted Service.. Customer will reimburse MSP for its reasonable time and expenses for any services provided at Customer’s request to remedy excluded non-performance issues.

Remedies. In the event of a breach of any of the above warranties, Customer shall contact MSP’s designated support personnel. MSP shall use reasonable efforts to correct or cure any such defect, provided that it can be reproduced by MSP. If MSP cannot correct the defect within a reasonable time then, at MSP’s option, MSP will replace the defective Software or Hosted Service with a functional equivalent or terminate this Agreement and refund any prepaid and unused fees for the defective Software or Hosted Service.

Limitation of Warranties. Except as expressly set forth herein or agreed in writing by an authorized official of MSP, the Hosted Service (including the Software, Documentation and Website) and all MSP services are provided “AS IS”. MSP MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND DISCLAIM ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLEOR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, whether arising by law, by reason of custom or usage of trade, or by course of dealing. MSP does not warrant that the Hosted Service, Software, Documentation, Website or its services are error-free. Warranties are not transferable to a third party, other than in connection with assignment of this entire Agreement.

Indemnification.

Mutual Indemnity. Each party (as the “Indemnifying party”) shall defend or settle at its expense any third party claim or action brought against the other party (the “Indemnified party”) arising out of any grossly negligent acts or willful misconduct of the Indemnifying party or its personnel. If both parties are at fault, each party will pay its proportional share of the resulting expenses or damages.

MSP Indemnity. MSP shall defend or settle at its option and expense any third party claim or action brought against Customer alleging that the Software infringes a U.S. registered patent, copyright, or trademark. MSP shall have no liability for any infringement claim to the extent such claim is based on: (1) modification of the Software other than by MSP; (2) any open source or other third party software; (3) Customer’s use of the Free Hosted Service; or (4) the combination, operation or use of the Software with any software, hardware or other materials not furnished by MSP. MSP may at its option and expense: (a) replace or modify the Software so that it becomes non-infringing; or (b) procure for Customer the right to continue using the Software. If neither of these alternatives is reasonably available, MSP may terminate this Agreement and refund to Customer any prepaid fees for the period after termination. This Section states the entire extent of the liability and obligations of MSP with respect to any alleged infringement or misappropriation of intellectual property rights.

Customer Indemnity. Customer shall defend or settle at its option and expense any third party claim or action brought against MSP arising out of the Customer Forms and Customer’s use of the Customer Forms and any information contained therein, including any claims of infringement or privacy breaches.

Indemnification Procedure. When an indemnifiable claim is made by an End User or other third party, the Indemnified party shall promptly notify the Indemnifying party of such claim, grant the Indemnifying party sole control of the defense and all related settlement negotiations, and provide the Indemnifying party with the assistance, information and authority reasonably necessary to defend the claim, at the Indemnifying party’s expense. The Indemnifying party will pay any costs or damages finally awarded against the Indemnified party that are attributable to an indemnifiable claim, or any amounts agreed by the Indemnifying party in settlement of the claim. The Indemnified party may not settle a claim without prior written consent of the Indemnifying party, which shall not be unreasonably withheld. The Indemnified party may, at its option and expense, be represented by separate counsel in any such action.

Limitations of Liability. IN NO EVENT SHALL MSP OR ITS LICENSORS BE LIABLE FOR LOST PROFITS, LOST DATA, INTERRUPTIONS OF BUSINESS, OR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR USE OF THE HOSTED SERVICE OR SOFTWARE, INCLUDING WHERE SUCH TYPES OF DAMAGES RELATE TO THE ACCIDENTAL OR UNLAWFUL DESTRUCTION, LOSS, ALTERATION, UNAUTHORIZED DISCLOSURE OF, OR ACCESS TO PERSONAL DATA TRANSMITTED, STORED OR OTHERWISE PROCESSED, REGARDLESS OF WHETHER MSP HAS NOTICE OF THE POTENTIAL FOR SUCH LOSS OR DAMAGE, AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE AND STRICT LIABILITY). MSP’S AND ITS LICENSORS’ TOTAL AGGREGATE LIABILITY FOR ANY CLAIM OR DAMAGE ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO MSP DURING THE ONE (1) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. OPEN SOURCE COPYRIGHT HOLDERS HAVE NO LIABILITY TO CUSTOMER FOR ANY REASON. These limitations shall apply notwithstanding the failure of the essential purpose of any limited remedy. The above limitations may be superseded by law in some jurisdictions.

Publicity. Any press releases or other public statement regarding this Agreement may be made only with the other party’s consent, which shall not be unreasonably withheld, except that a party may make public disclosures to the extent required by law or regulation, and MSP is permitted to include Customer’s name on customer lists that may be posted on MSP’s website or provided to potential customers and other third parties.

Assignment and Acquisitions. Neither party may assign or transfer this Agreement or any of its rights or duties hereunder to any third party without prior written consent of the other party, which may not be unreasonably withheld. Notwithstanding the foregoing, a party may, upon written notice to the other party, assign this Agreement to a third party in connection with a merger with such third party or acquisition of all or substantially all of the assigning party’s stock or assets to which this Agreement relates.

General.

Entire Agreement; Amendment. This Agreement, including the related Order(s) and MSP’s Privacy Policy, which are incorporated herein by reference, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or oral agreements or understandings between MSP and Customer, including its Affiliates. with respect thereto, and any such other agreements are hereby terminated immediately, with no further liability or obligation from Customer to MSP thereunder. Any preprinted terms in a purchase order submitted by Customer are expressly agreed to be of no force or effect. This Agreement may not be amended except by a writing signed by authorized representatives of both parties.

No Waiver. Any waiver by either party of a default or obligation under this Agreement will be effective only if in writing. Such a waiver does not constitute a waiver of any subsequent breach or default. No failure to exercise any right or power under this Agreement or to insist on strict compliance by the other party will constitute a waiver of the right in the future to exercise such right or power or to insist on strict compliance.

Choice of Law and Jurisdiction. This Agreement shall be construed in accordance with the laws of the State of Florida. Should any dispute arise concerning this Agreement and/or MSP’s products or services, venue shall be laid in Bradenton, Florida. Florida state and federal courts shall have exclusive jurisdiction over any such dispute, and the parties hereby consent to the jurisdiction and venue of such courts.

Severability. If any provision of this Agreement is deemed invalid or unenforceable by a court or governmental authority, that provision shall be modified, if possible, to the minimum extent necessary to make it valid and enforceable, or if it cannot be so modified, then severed, and the remainder of this Agreement shall remain in full force and effect.

Export Compliance. Customer may not use, export or re-export any data, content or materials the Software in any form in connection with this Agreement in violation of U.S. export laws and regulations, or without first obtaining the appropriate United States and foreign government authorizations.

Notices. All notices or other communications required under to this Agreement will be in writing and will be delivered personally, or mailed by registered or certified mail, return receipt requested, or sent by commercial overnight delivery service with provisions for a receipt, or sent by confirmed facsimile or e-mail, to the address of the receiving party set forth in the applicable Order or such other address a party may specify by written notice.

Notwithstanding the foregoing, Customer specifically agrees to receive and/or obtain notices and communications from MSP related to the Hosted Service in the form of Electronic Communications posted to the portal of the Hosted Service. “Electronic Communications” includes, but is not limited to, notices of scheduled downtime, notices of required payments, notices or disclosures that federal or state laws or regulations require that MSP provide to its customers, and any other communications regarding Customer’s relationship with MSP. Customer acknowledges that it is able to retain Electronic Communications by printing them or downloading and saving them. Customer agrees that Electronic Communications provided via the Hosted Service are reasonable and proper notice for the purpose of any applicable laws and regulations, including that communications be provided in writing and/or in a form that Customer may keep.

Independent Contractors. The parties are independent contractors. Customer is not an agent of MSP and will not represent to any third party that it is an employee or agent of MSP. Customer shall have no authority to enter into any contract on behalf of MSP.

Injunctive Relief. Each party acknowledges that the other party’s intellectual property and Confidential Information is highly valuable to the other party, that any breach of such party’s obligations with respect to confidentiality and/or use of the other party’s intellectual property, including any breach by Customer of any restrictions on use of the Hosted Service or the scope of the licenses granted by MSP herein, may severely damage the other party, the extent of which damage would be difficult to ascertain and, therefore, that the other party is entitled to seek, among other remedies, temporary and permanent injunctive relief and other equitable relief for any such breach, without the necessity of posting bond or other security, to the extent permitted by law.

Force Majeure. A party shall be excused from delays or failure to perform its duties (other than payment obligations) to the extent such delays or failures result from acts of nature, riots, war, acts of public enemies, fires, epidemics, labor disputes, or any other causes beyond its reasonable control. The parties will promptly inform and consult with each other as to any of the above causes that in their judgment may or could be the cause of a substantial delay in the performance of this Agreement.