UP Solution Services Agreement Terms and Conditions
BEFORE SIGNING THIS AGREEMENT OR CLICKING ON THE "ACCEPT”
BUTTON BELOW, MERCHANT ACKNOWLEDGES AND AGREES THAT IT HAS CAREFULLY REVIEWED THIS UP SOLUTION SERVICES AGREEMENT ("AGREEMENT”
). BY CLICKING ON THE "ACCEPT”
BUTTON MERCHANT IS REPRESENTING THAT (I) SIGNATORY IS OF FULL LEGAL AGE AND HAS FULL AUTHORITY TO ENTER INTO THIS AGREEMENT AS A LEGALLY BINDING CONTRACT BETWEEN UNITED POS SOLUTIONS, INC. ("UP SOLUTION”
) AND THE ORGANIZATION FOR WHICH SIGNATORY ACTS ("MERCHANT”
); (II) MERCHANT HAS READ AND UNDERSTANDS THIS AGREEMENT; AND (III) YOU ARE CONSENTING TO BE BOUND BY AND BECOME A PARTY TO THIS BINDING LEGAL AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR OTHER LEGAL ENTITY TO THE AGREEMENT, AND THAT BY YOUR CLICKING OF THE "ACCEPT”
BUTTON SUCH PERSON, COMPANY OR OTHER LEGAL ENTITY IS HEREBY BOUND. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK THE "ACCEPT”
BUTTON AND DO NOT CONTINUE ACCESSING OR USING THE SOLUTION.
1. DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings:
means this UP Solution Services Agreement and all of the terms and conditions referenced herein, which are hereby incorporated herein by reference.
(b) "Cover Page”
means the cover page to this Agreement outlining, among other things, the Services purchased hereunder and the applicable Fees for such Services.
means the total fees due from Merchant to UP Solution hereunder, including without limitation, the fees for the Device, UP Solution Cloud™ Monthly Fee, U Charge Fee, Monthly Web Access Fee and Statement Fee, the Protection Plan fees and/or any other fees set forth on the Cover Page or otherwise set forth in this Agreement.
means merchant client purchasing the Device and Services hereunder.
(e) "Card Services Agreement”
means the merchant card processing agreement by and between Merchant and Processor for the provision of merchant card processing services.
means that certain merchant card processor providing processing services to Merchant.
(g) "Proprietary Rights”
means all confidential information rights and all U.S. and foreign proprietary rights of any kind, tangible or intangible, now known or hereafter existing, including, without limitation, copyrights, neighboring rights and moral rights; trade secret; trademark; and patent and other industrial property rights, and all registrations, applications and renewals thereof, now or hereafter in force throughout the universe.
means any reseller through whom Merchant purchases the Services provided hereunder.
means the UP Solution Cloud™ Services, U Charge® Gateway Services, the UP TAB™ Extended Protection Plan Coverage, the FlexGift® Program and/or any other services provided by UP Solution hereunder in connection therewith, depending on the services ordered by Merchant hereunder.
(j) "UP Solution”
means United POS Solutions, Inc. and its affiliates, agents and subcontractors.
(k) "UP Solution Property”
means the UP Solution Cloud™Services, U Charge® gateway, the FlexGift® Program, UP Solution Trademarks, confidential information and any other property of UP Solution or its licensors, and all copies thereof, in whole or in part, including, without limitation, all Proprietary Rights therein.
(l) "UP Solution Trademarks”
means any and all trademark(s) and/or logo(s) of UP Solution, including without limitation UP SOLUTION®, UP TAB™, UP Solution Cloud™, FlexGift® and U Charge®, as modified from time to time by UP Solution.
2. UP TAB DEVICE.
2.1 SERVICES THROUGH ASSIGNED DEVICE. UP Solution will provide to Merchant a new or refurbished UP TAB device (the "Device”
) set forth on the Cover Page to this Agreement, and Merchant will receive related Services and/or features with Merchant’s assigned Device pursuant to these terms and conditions. UP Solution may modify or cancel the Services hereunder or take corrective action at any time without prior notice and for any reason, including, but not limited to, Merchant’s violation of any provision of this Agreement. Merchant agrees that UP Solution or Processor may change or update the terms and conditions, including pricing, from time to time, which will govern Merchant’s use of the Services hereunder, subject to thirty (30) days notice.
2.2 NO RETURN POLICY. All sales of the Device are final and no returns will be accepted other than as provided in the Protection Plan (as defined below), if applicable.
2.3 SALES TAX. Merchant shall be responsible for any sales tax and federal, state or local charges or taxes assessed to the Device purchased by Merchant.
2.4 REPRESENTATION AND WARRANTIES FOR DEVICE. To the extent that the third party manufacturer’s warranties for the Device shall be available to Merchant on a "pass-through”
basis, Merchant shall make any warranty claims related to such third party equipment directly to such third party manufacturer. EXCEPT AS PROVIDED IN ANY THIRD PARTY MANUFACTURER’S WARRANTY THAT IS AVAILABLE TO MERCHANT, THERE ARE NO EXPRESS, STATUTORY OR IMPLIED WARRANTIES FOR THE DEVICE, INCLUDING, WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AN EMPLOYEE, REPRESENTATIVE, RESELLER OR DISTRIBUTOR OF UP SOLUTION SHALL CREATE A WARRANTY FOR THE DEVICE AND MERCHANT MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
3. UP SOLUTION CLOUD SERVICES. (Required as part of the purchase of the UP TAB™ Device.)
3.1 SERVICES. Subject to the terms and conditions set forth here, UP Solution shall provide to Merchant the UP Solution Cloud™services to (a) enable Merchant to retrieve various information uploaded from the Device and any other compatible equipment provided by UP Solution to Merchant ("POS Equipment”
), (b) store in UP Solution’s servers such uploaded Merchant information, such as product, item and customer information, as well as transaction history and configuration data pertaining to POS Equipment and (c) such further features as provided by UP Solution in connection therewith (collectively, the "UP Solution Cloud™Services”
). Subject to the terms and conditions contained herein, Merchants may elect to receive, either: (i) full access to the UP Solution Cloud™Services features which may include basic setting, managerial and reporting functionality upon payment of the applicable UP Solution Cloud™Monthly Fee (as defined below); or (ii) limited access which includes basic setting only.
3.2 BANDWIDTH, STORAGE AND E-MAIL USAGE. For the UP Solution Cloud™Services, up to 2GB of total data capacity may be allowed for each Merchant, and Merchant shall not exceed the bandwidth, storage and e-mail usage limit of such 2GB of total data capacity for the UP Solution Cloud™Services. If Merchant uses any bandwidth or storage space in excess of 2GB capacity, UP Solution may, in its sole discretion, assess Merchant with additional charges, suspend UP Solution Cloud™Services, or terminate this Agreement.
3.3 MODIFICATIONS. At the discretion of UP Solution, UP Solution may modify or suspend UP Solution Cloud™Services or support services to comply with any rules, regulations and by-laws of the Card Companies and any federal, state or local laws or regulations, whether existing as of the date hereof or hereafter adopted or for any reason as determined necessary by UP Solution.
3.4 COMMERCIAL ADVERTISEMENTS VIA E-MAIL; RESTRICTIONS. Merchant shall not use any services provided by UP Solution, Merchant’s account or server to send or facilitate in any way the transmission of unsolicited commercial email in violation of any federal or state laws or regulations. UP Solution will enforce substantial penalties, including charging Merchant for related network costs and terminating the account, for violations. Merchant agrees not to use or permit use of the services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, "junk mail”
or chain letters’ (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. UP Solution, in addition to any other rights afforded to UP Solution under this Agreement, reserves the right to remove or disable access to any material that violates the foregoing restrictions. Neither UP Solution nor Reseller shall have any liability to Merchant in the event that Merchant takes such action. Merchant agrees to defend and indemnify UP Solution and Reseller against any claim arising out of a violation of Merchant’s obligations under this Section.
3.5 FEES. Except as otherwise set forth on the cover page, Merchant agrees to pay UP Solution or authorized Reseller each month the UP Solution Cloud™Service fee in the amount set forth on the Cover Page to this Agreement for full access to the UP Solution Cloud™Service features (the "UP Solution Cloud Monthly Fee”
) by ACH as specified on the Merchant Application and in the manner provided herein. Merchant acknowledges that the UP Solution Cloud™Monthly Fee will not be prorated but that Merchant will be charged for the whole calendar month if Merchant uses UP Solution Cloud™Services for any day in any given month. Merchant hereby authorizes UP Solution, the authorized Reseller or their respective banks to debit any Merchant account (including any Merchant account maintained by Merchant to which access has been granted to any affiliate of UP Solution) periodically for any fees or other payments due from Merchant to UP Solution or the authorized Reseller hereunder. Merchant agrees and acknowledges that Merchant will be charged the UP Solution Cloud™Monthly Fee according to UP Solution or the authorized Reseller’s then current price schedule plus any labor costs including without limitation onsite service costs, if applicable, subject to all of the limited rights, restrictions and obligations set forth herein.
3.6 OWNERSHIP AND RESTRICTIONS. UP Solution or its licensors, if applicable, retain all ownership and intellectual property rights to UP Solution programs or services including without limitation UP Solution Cloud™Services. UP Solution owns the source code and retains all ownership and intellectual property rights to anything developed and delivered under this Agreement. Merchant may not: remove or modify any program markings or any notice of UP Solution’s or its licensors’ proprietary rights; make the programs or materials resulting from any services available in any manner to any third party for use in the third party’s business operations; modify, make derivative works of, reverse compile or engineer, or disassemble any part of the services (including without limitation data structures), or access or use the services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to UP Solution programs or services; disclose results of any services or program benchmark tests; and license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the services, UP Solution programs or materials available, to any third party. Merchant may not copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means, including without limitation electronic, mechanical, photocopying, recording or other means, and Merchant agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
3.7 LICENSE TO UP SOLUTION CLOUD™SERVICES. Subject to the terms and conditions set forth herein, Merchant has the nonexclusive, non-assignable, fully-terminable, limited right to use UP Solution Cloud™Services (in object form only) provided by UP Solution hereunder solely for Merchant’s internal business operations and subject to the terms of this Agreement at Merchant’s business location or, if applicable, solely in connection with Merchant’s business operations using terminals or devices with application or service modules developed and authorized by UP Solution. Merchant agrees that Merchant does not acquire under this Agreement any license or rights in, including without limitation, any software including UP Solution software, source code or support and maintenance services, or any developed or customized software. At the end of this Agreement or the Services hereunder, any software license, if any, or Merchant’s right to access or use the UP Solution programs or UP Solution Cloud™Services shall terminate.
4. UP TAB EXTENDED PROTECTION PLAN (Applicable only if UP TAB Extended Protection Plan box is checked on Cover Page).
4.1 PROTECTION COVERAGE. This UP TAB Protection Plan (this "Protection Plan”
) will allow Merchant to have Merchant’s UP TAB and the printer with MSR provided by UP Solution or its authorized reseller (the "Covered Product”
) replaced with a new or refurbished product pursuant to these terms and conditions when Merchant encounters the problems set forth in Section 4.2 below in connection with the Covered Product during normal usage for a period of two (2) years from the date Merchant purchases this Protection Plan (the "Coverage Term”
). Merchant must purchase this Protection Plan within ninety (90) days from the date Merchant purchases the Covered Product. Merchant must pay a monthly fee of $14.99 and any applicable taxes per unit during the Coverage Term by ACH as specified on your Merchant Application. UP Solution’s obligations under this Plan will be fulfilled in their entirety if UP Solution replaces the Covered Product with a new or refurbished product pursuant to these terms and conditions. Replacement is limited to one product per year during the Coverage Term upon payment of $100 deductible fee (the "Coverage”
). UP Solution will have no further obligations under this Protection Plan. This Protection Plan is inclusive of any manufacturer’s warranty that may exist during the Coverage Term. It does not replace the manufacturer’s warranty, but provides certain additional benefits during the Coverage Term. Replacement parts will be new, rebuilt or non-original manufacturer’s parts that perform to the factory specifications of the product at UP Solution’s sole option. This Protection Plan does not cover repair or replacement of the Covered Product for any of the causes or provide coverage for any losses set forth in Section 4.7 below, entitled "WHAT IS NOT COVERED.”
4.2 PROTECTION PLAN. This Protection Plan provides coverage for parts and labor costs to repair or replace Merchant Covered Product where the problem is the result of a failure caused by:
(a) Normal wear and tear;
(b) Accidental damage from handling (ADH), such as damage from drops, spills and liquid damage associated with the handling and use of the Covered Product, if the coverage has been offered and purchased at the time of sale with this Protection Plan;
(c) Defective pixels when there are at least three (3) defective pixels throughout the entire display area;
(d) Dust, internal overheating, internal hum
idity/ condensation; and
(e) Defects in materials or workmanship.
This Protection Plan also provides power surge/fluctuation protection. Please see Section 4.8 entitled "POWER SURGE PROTECTION" for details.
4.3 ADH COVERAGES. This Protection Plan provides protection for damage from drops, spills and liquid damage associated with the handling and use of the Covered Product. ADH does not provide protection against theft, loss, reckless, or abusive conduct associated with handling and use of the Covered Product, cosmetic damage and/or other damage that does not affect unit functionality, or damage caused during shipment between Merchant and UP Solution or its service providers.
4.4 WHAT TO DO IF A COVERED PRODUCT REQUIRES SERVICE. Merchant must call Merchant’s reseller for any functionality problems. For any questions regarding this Protection Plan, Merchant can call UP Solution toll-free at 1-800-303-2567 and explain the problem.
4.5 HOW UP SOLUTION WILL SERVICE MERCHANT’S ITEM. Depending on the item and failure circumstances, UP Solution will either:
(a) Provide a new or refurbished product of equal features and functionality; or
(b) Repair the Covered Product.
4.6 MERCHANT’S RESPONSIBILITIES. Merchant must provide UP Solution with a complete copy of proof of purchase. Merchant may provide such proof of purchase at time of claim. Merchant must properly maintain, store and use Merchant’s item according to the manufacturer instructions.
4.7 WHAT IS NOT COVERED.
(a) Any product fraudulently described or materially misrepresented by Merchant;
(b) Maintenance, repair, or replacement necessitated by loss or damage resulting from any cause other than normal use and operation of the Covered Product in accordance with the manufacturer's specifications and owner's manual, including but not limited to, theft or loss, exposure to weather conditions, failure to properly clean, maintain or lubricate, operator negligence, misuse, abuse, improper electrical/power supply, improper equipment modifications, attachments or installation or assembly, vandalism, animal or insect infestation, battery leakage, or act of nature or any other peril originating from outside the Covered Product;
(c) Cosmetic damage to case or cabinetry or other non-operating parts or components which does not affect the functionality of the Covered Product;
(d) Damaged or defective LCD screens when the failure is caused by abuse or is otherwise excluded herein;
(e) Conditions that were caused by Merchant intentionally, or known by Merchant prior to purchasing this Protection Plan;
(f) Consumer replaceable or consumable batteries;
(g) Consumer replaceable or consumable items such as but not limited to toner, ribbons, ink cartridges, drums, belts, printer heads, blades, strings, trim etc.;
(h) Product(s) with removed or altered serial numbers;
(i) Manufacturer defects or equipment failure which is covered by manufacturer's warranty, manufacturer's recall, or factory bulletins (regardless of whether or not the manufacturer is doing business as an ongoing enterprise);
(j) Damage to computer hardware, software and data caused by, including, but not limited to, viruses, application programs, network drivers, source code, object code or proprietary data, or any support, configuration, installation or reinstallation of any software or data; or
(k) Failures related to transportation damage, customer education, cleaning, preventive maintenance, "No Problem Found" diagnosis, non-intermittent issues that are not product failures.
4.8 POWER SURGE PROTECTION. This Protection Plan protects against the operational failure of the Covered Product resulting from a power surge while properly connected to a surge protector. Merchant may be asked to provide Merchant’s surge protector for examination.
4.9 SHIPPING. This Protection Plan covers UPS Ground (or the equivalent) delivery shipping charges only to repair or service facilities during the Coverage Term, including shipping to the manufacturer if the manufacturer does not cover shipping charges to their facilities. Upon Merchant’s request and payment in the amount of $50, UP Solution may deliver the Covered Product using (continental US) delivery by next day service. However, UP Solution does not guarantee any delivery time.
4.10 CANCELLATION. Merchant may cancel this Protection Plan as long as any Coverage has not been used. To cancel it, Merchant may call UP Solution toll-free at 1-800-303-2567. UP Solution may cancel this Protection Plan at its option on the basis of nonpayment, fraud, or material misrepresentation by Merchant. If this Protection Plan was inadvertently sold to Merchant on a product which was not intended to be covered by this Protection Plan, UP Solution will cancel this Protection Plan and return the full purchase price of the Protection Plan to Merchant. Written notice which includes the effective date of cancelation and reason for cancellation, will be mailed to Merchant. If UP Solution cancels this Protection Plan for nonpayment then UP Solution will provide notice at time of cancellation.
5. U CHARGE® GATEWAY SERVICES. (Applicable only if U Charge® Gateway Services box is checked on Cover Page.)
5.1 Services. Subject to the terms and conditions of this Agreement, pass-through gateway services will be made available to Merchant through the U Charge® gateway to facilitate the transmission and reporting of certain merchant card transaction data between Merchant and various credit and debit card payment processors (collectively, the "U Charge Services”
). Merchant acknowledges and agrees that: (a) Reseller may perform its obligations hereunder and provide the U Charge Services through UP Solution; (b) UP Solution is a third party beneficiary of this Agreement and shall be entitled at any time to exercise any and all of the rights provided by Merchant to Reseller pursuant to this Agreement; (c) Merchant shall obtain, install, support and maintain the related hardware required to access and use the Services; (d) in connection with the Services, certain information about the number of transactions and methodology for such transactions (i.e., Internet protocol and dial-up) will be collected and shared with UP Solution and any reseller of UP Solution; and Reseller or UP Solution may immediately suspend the Services with or without notice to Merchant (i) to prevent damages to, or degradation of, its network integrity which may be caused by Merchant, (ii) to comply with any law, regulation, court order, or other governmental request order which requires immediate action, (iii) to otherwise protect Reseller or Reseller’s service provider in its good faith judgment from potential legal liability, and/or (iv) in the event fees hereunder are not paid when due.
5.2 Fees. Merchant agrees to pay to UP Solution or authorized Reseller any fees due hereunder in connection with the U Charge Services (the "U Charge Fees”
) as required in the Cover Page to this Agreement.
5.3 License to U Charge Services. Subject to the terms and conditions set forth herein, Merchant has the nonexclusive, non-assignable, fully-terminable, limited right to use U Charge Services (in object form only) provided by UP Solution hereunder solely for Merchant’s internal business operations and subject to the terms of this Agreement at Merchant’s business location or, if applicable, solely in connection with Merchant’s business operations using terminals or devices with application or service modules developed and authorized by UP Solution. Merchant agrees that Merchant does not acquire under this Agreement any license or rights in, including without limitation, any software including UP Solution software, source code or support and maintenance services, or any developed or customized software. At the end of this Agreement or the services hereunder, any software license or right to access or use the UP Solution programs or U Charge Services granted to Merchant shall terminate.
5.4 Restrictions on Use. In addition to any other restrictions set forth herein with respect to the Services, Merchant shall use the U Charge Services only for bona fide transactions between Merchant and a cardholder. Merchant shall not allow any third party to use the U Charge Services. UP Solution retains all right, title and interest in and to the U Charge Services and all related documentation and Merchant shall not take any action inconsistent with such ownership.
6. Flexgift® TERMS AND CONDITIONS. (Applicable only if Flexgift® box is checked on Cover Page).
6.1 FLEXGIFT PROGRAM. UP Solution has created a closed loop gift card program known as the UP Solution Electronic and Non-Electronic Gift Card/Loyalty Program (the "Flexgift Program”
). UP Solution offers the FlexGift Program for purchase of gift cards and electronic gift cards (collectively, the "Gift Cards”
) in Merchant’s retail store or electronically through Merchant’s website and allows reloading of the Gift Cards by holders on UP Solution’s Flexgift website at www.flexgift.com or its mobile application (collectively, the "Site”
6.2 APPLICABLE LAWS, RULES AND REGULATIONS. Merchant acknowledges that there are certain federal, state and local laws, rules and regulations applicable to the issuance, use and acceptance of prepaid cards, stored value cards and/or gift cards and/or the operation of customer loyalty programs, specifically including, but not limited to, laws applicable to escheat. Merchant agrees that it has sole responsibility to comply with all such laws, rules, or regulations at all times. Merchant further agrees to provide assistance to UP Solution with respect to compliance with any such laws, rules and regulations as may be applicable to UP Solution with respect to the Flexgift Program. Merchant will allow the recipient of a Gift Card under the Flexgift Program to redeem the full value of the Gift Card. Merchant is responsible for keeping track of the value and any unredeemable balance of a Gift Card. Merchant is solely responsible for complying with any applicable escheat or abandoned or unclaimed property laws in connection with a Gift Card.
6.3 CUSTOMER DATA.
means any and all information relating to a customer, including but not limited to, name, address, email address, telephone number, other contact information, financial information, information relating to purchases or preferences, and any other identifying information.
6.4 LIMITATION OF LIABILITY; NO REPRESENTATIONS OR WARRANTIES.
(a) UP Solution SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES INCLUDING LOSSES RESULTING FROM DESTRUCTION OR DAMAGE OF RECORDS, LOAD FAILURE, LOST DATA OR LOST PROFITS. THE LIMIT OF MONETARY DAMAGES AGAINST UP Solution UNDER ANY CIRCUMSTANCES SHALL BE THE AMOUNT PAID BY MERCHANT TO UP Solution PURSUANT TO THE FLEXGIFT PROGRAM IN THE THIRTY (30) DAYS PRECEDING THE DATE ANY CLAIM AGAINST UP Solution AROSE.
(b) THE FLEXGIFT PROGRAM, SITE, AND ALL RELATED CONTENT AND MATERIALS ARE PROVIDED ON AN "AS IS”
BASIS. UP Solution DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION (A) ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT WITH RESPECT TO THE FLEXGIFT PROGRAM, THE SITE OR ANY GIFT CARDS FURNISHED TO MERCHANT HEREUNDER OR (B) ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPLIANCE OF THE FLEXGIFT PROGRAM, THE SITE OR THE USE, ISSUANCE OR ACCEPTANCE OF ANY GIFT CARDS WITH AND FEDERAL, STATE OR LOCAL LAWS, RULES OR REGULATIONS. UP Solution DOES NOT WARRANT THAT THE FLEXGIFT PROGRAM, SITE OR RELATED CONTENT AND MATERIALS IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE, THAT IT WILL MEET MERCHANT’S REQUIREMENTS, WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION OR WITHOUT INTERRUPTION, THAT DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. USE OF THE FLEXGIFT PROGRAM AND SITE IS AT MERCHANT’S OWN RISK AND MERCHANT IS SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO PROPERTY OR DATA THAT MAY RESULT.
(c) UP Solution DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE PURCHASED USING A GIFT CARD, OR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE OR THE FLEXGIFT PROGRAM OR THROUGH ANY HYPERLINKED WEBSITE.
(d) UP Solution shall not have any liability whatsoever for (A) any lost or stolen or unauthorized use of Gift Cards; or (B) any fraud and/or forgery in relation to the Flexgift Program perpetrated by Merchant or a third party.
6.5 MERCHANT CONTENT LICENSE. Merchant may provide Merchant Content to UP Solution for use in connection with the Flexgift Program, and if Merchant provides such Merchant Content to UP Solution, Merchant hereby grants to UP Solution a nonexclusive, worldwide, royalty free license to use the Merchant Content in connection with the Flexgift Program. "Merchant Content”
means any content owned or licensed by Merchant (other than from UP Solution), including such content provided by Merchant to UP Solution for use in connection with the Flexgift Program, including, but not limited to, trademarks, service marks, logos, domain names, trade names, graphics, images, text, software, and copyrightable materials.
6.6 Taxes. Merchant is responsible for determining what, if any, taxes apply to the redemption of Gift Cards and for collecting, reporting, and remitting the correct tax to the appropriate tax authority, if any. UP Solution is not responsible for determining whether taxes apply or for collecting, reporting, or remitting any taxes arising from any transaction with or by Merchant.
6.7 DISPUTES; NO THIRD PARTY BENEFICIARIES. All disputes between Merchant and its customers relating to any Gift Card or Flexgift Program transactions shall be settled between the Merchant and its customers. All disputes between Merchants that are franchisors and franchisees shall be settled between such franchisor and franchisee. In no event shall any cardholder customer be a third party beneficiary of this Flexgift Program.
6.8 FEES. UP Solution will commence billing for the Monthly Web Access Fee and Statement Fee from the date UP Solution provides written acceptance and approval of this Flexgift Agreement.
6.9 TERMINATION OF FLEXGIFT PROGRAM. UP Solution shall have the right in its sole discretion to withhold or set-off any termination fees hereunder from any funds of Merchant then held by UP Solution or charge to any account (credit card or otherwise) that Merchant has authorized UP Solution to charge fees against any such termination fees. UP Solution reserves the right to terminate this Flexgift Program at any time for any reason.
6.10 LIMITATION OF LIABILITY; INDEMNIFICATION. Neither UP Solution nor Reseller shall have liability for any indirect, special, or consequential damages, including lost profits, arising in connection with the furnishing, performance, or use of the Device, POS Equipment or the performance of the Services under this Agreement. Merchant shall defend, indemnify and hold harmless UP Solution and Reseller from and against any and all claims, losses, liabilities, costs (including attorney’s fees), damages and expenses arising from or related to: (a) Merchant’s breach of this Agreement; (b) any negligent or willful act or omission of Merchant; (c) any third party claim arising out of the processing services provided to Merchant and/or Merchant’s use of the Equipment; (d) the Flexgift Program and/or the issuance, use or acceptance of Gift Cards; (e) any claim for sales tax or any other tax obligation arising from the issuance or redemption of a Gift Card or the provision of goods and/or services in connection therewith; (f) any claim by any local, state, or federal government entity for unredeemed Gift Cards or unredeemed cash values thereof, or any other amounts under any applicable escheat or abandoned or unclaimed property laws; (g) any failure of Merchant to honor a Gift Card; (h) any infringement of any patent, trademark, copyright, publicity, privacy, trade secret, or other right of any third party by Merchant, including, without limitation, in connection with the Merchant Content or UP Solution’s use thereof; (i) Merchant’s provision of goods, services, or information in connection with the Flexgift Program; and/or (j) Merchant’s use or handling of Customer Data.
7. GENERAL TERMS AND CONDITIONS. (Applicable to all terms and conditions of this Agreement.)
7.2 MERCHANT OBLIGATIONS. In addition to, and not in limitation of, Merchant’s other obligations hereunder, Merchant shall have the following obligations under this Agreement:
(a) Compliance with Laws. Merchant shall comply with all applicable laws, statutes and regulations, including any applicable network rules, affecting this Agreement and operation of Merchant’s business. Merchant shall maintain all registrations with governmental agencies or other offices which may be required under local law in order to properly conduct Merchant’s business. Merchant shall refrain from engaging in any activities or conduct which would cause UP Solution to be in violation of the laws of any jurisdiction.
(b) No Alteration. Merchant agrees not to tamper with, abuse, misuse, alter or otherwise rearrange the Services or UP Solution provided equipment, if any. Merchant shall not, and shall not permit or assist others to, do anything that may interfere with the Services or the network of UP Solution or Reseller Service Providers or access thereto by other users of such networks
(c) Security. Merchant acknowledges that security safeguards, by their nature, are capable of circumvention and that UP Solution does not and cannot guarantee that any information or content transmitted/received through the Services, cannot be accessed by unauthorized persons capable of overcoming such safeguards. Merchant is solely responsible for the security of data residing on servers owned or operated by Merchant, or a third party designated by Merchant (e.g., a Web hosting company, processor or other service provider).
(d) Use. Merchant shall be solely responsible for use of the Services by any of its employees, officers, directors, agent, and contractors.
(e) Licenses. Merchant shall be solely responsible for obtaining all necessary licenses and/or authorization for all software and equipment necessary for the provision of the Services. UP Solution shall not be responsible if any changes in the Services cause equipment, hardware or software to become obsolete, require modification or attention, or otherwise affect performance of the same. Merchant acknowledges that the Services are designed for use with certain third party programs. Merchant will look solely to the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. UP Solution does not warrant and shall not be responsible for services or software provided by unaffiliated third party vendors. Merchant authorizes UP Solution to disclose to any third party vendor information concerning Merchant to the extent required to deliver the requested Services.
(f) Suspension of Services. UP Solution reserves the right to take all actions, including immediate suspension of the Services, which it considers in its sole and absolute discretion are reasonably necessary to ensure compliance by Merchant with this Section 7.2. Merchant will be responsible for any and all additional costs, liabilities and expenses incurred by UP Solution or Reseller resulting from Merchant’s breach of this Section 7.2.
7.3 Merchant Warranties. Merchant represents and warrants to Reseller and UP Solution that (a) this Agreement has been duly authorized, executed and delivered by it; (b) it has the power and authority to enter into this Agreement and to perform its obligations hereunder; (c) this Agreement constitutes its valid and binding obligation, enforceable in accordance with its terms; (d) the making of this Agreement does not violate any agreement, right or obligation existing between it and any other person or entity; and (e) Merchant shall comply at all times with applicable laws, statutes and regulations with respect to performance under or with respect to this Agreement.
7.4 TERM; TERMINATION.
(a) TERM. Merchant hereby agrees that the term of this Agreement shall be the longer of: (a) the term set forth on the Cover Page to this Agreement; or (b) if the Merchant’s Processor is an affiliate company of UP Solution, then the term set forth in the Card Services Agreement with the affiliated Processor. Merchant further agrees if the Processor is an affiliate of UP Solution, UP Solution is a third party beneficiary of the Card Services Agreement and shall be entitled at any time to exercise any and all of the rights provided by Merchant to Processor pursuant to the Card Services Agreement.
(b) TERMINATION BY UP SOLUTION. UP Solution may terminate this Agreement upon thirty (30) days written notice to the Merchant. Notwithstanding the foregoing, UP Solution may terminate UP Solution Cloud™Services immediately for any of the following reasons at any time:
(i) the violation, omission, or breach by Merchant of any term or condition under this Agreement including without limitation any representation, warranty or covenant made by it under this Agreement;
(ii) the violation, omission, or breach by Merchant of any federal or state laws;
(iii) any failure by Merchant to comply with any association rules of a card association or the operating procedures of a card association;
(iv) UP Solution deeming Merchant to be financially insecure;
(v) Merchant or any person owning or controlling Merchant's business being listed in the MATCH file maintained by Visa and MasterCard;
(vi) any card association notifying UP Solution that it is unwilling to continue accepting Merchant's data or Merchant either never transmits Sales Data to Processor after receiving a merchant number or fails for 60 consecutive days to transmit Sales Data to Processor;
(vii) any failure by Merchant to make any payment due hereunder when due;
(viii) the Merchant ceasing to do business, or the Merchant filing a petition for bankruptcy or having an involuntary petition for bankruptcy filed against it, or becoming insolvent or commencing an assignment for the benefit of creditors; or
(ix) impossibility or impracticability of performance by UP Solution due to changes in Card Company by-laws, rules and regulations, by-laws, rules and regulations of any other provider of services to UP Solution, or federal, state or local laws, regulations, or ordinances, which this Agreement cannot reasonably be modified to accommodate, as determined in the sole discretion of UP Solution.
(c) EFFECT OF TERMINATION. Upon termination of Services, Merchant shall pay to UP Solution all sums due hereunder and outstanding, if any, and shall cease any and all use and access to the Services. Upon termination of the Services, the Account (as defined below) shall terminate and UP Solution may permanently delete all of Merchant’s Content (as defined below) from UP Solution’s system. It is Merchant’s responsibility to retrieve and/or transfer any Content stored with UP Solution prior to any termination date. UP Solution does not provide data retrieval services, data conversion services or data migration services. Any provision that is reasonably necessary to accomplish or enforce the purpose of this Agreement (including without limitation, indemnification obligations and limitations of liability) will survive any termination of this Agreement or your use of the Services and remain in effect thereafter in accordance with their terms.
(a) Proprietary Rights. This Agreement does not convey to Merchant any ownership interest whatsoever in the UP Solution Property, in whole or in part. Merchant acknowledges that UP Solution is the sole and exclusive owner of all intellectual property rights in the UP Solution Property. For the avoidance of doubt, all rights in the UP Solution Property not expressly granted to Merchant are reserved by UP Solution and its licensors, if applicable.
(b) Restrictions. Except for the limited license granted hereunder, Merchant does not have any rights in the UP Solution Property. Merchant may not (i) sublicense, assign, lease, pledge or otherwise transfer Reseller’s rights in the UP Solution Property or allow any security interest, lien or encumbrance to be created in or on such rights; (ii) copy, reproduce, reverse engineer (except solely to the extent applicable law prohibits reverse engineering restrictions), compile, remanufacture, modify, create derivative works or disassemble any portion of the UP Solution Property, or in any way duplicate all or any portions of the UP Solution Property, including translating the UP Solution Property, in whole or in part, into another software language, without UP Solution’s prior written consent; (iii) remove, modify or take any other action which would obscure the copyright, trademark or other proprietary notices contained in any UP Solution Property or any copy thereof; or (iv) develop or create any software or other application that performs the same or substantially similar functions as the software used by UP Solution.
(a) Registration. In order to access the Services, Merchant must first create and register an online account ("Account”
). By registering an Account, Merchant represents and warrants that it is capable of entering into a legally binding agreement and that all required information submitted by Merchant to UP Solution is current, complete and accurate. As part of the registration process, Merchant will be required to, among other things: (i) associate an email address with the Account; and (ii) provide a full legal name to be associated with Account, Merchant’s company name and EIN, business phone number, and business shipping and billing addresses. Merchant will also be requested to provide its Processor information (including merchant and terminal ID). Merchant agrees to maintain and promptly update its Account information in order to ensure that it remains true, accurate, current and complete. UP Solution may, from time to time, require Merchant to provide additional information in evaluating its Account and eligibility to continue using the Services. UP Solution reserves the right, in its sole and absolute discretion, to reject, suspend or terminate the Account (with or without notice).
(b) Security of Accounts. Merchant is solely responsible for maintaining the confidentiality and security of the Account password and for all activities that occur on or through the Account, and Merchant agrees to immediately notify UP Solution if it suspects any unauthorized use of the Account or access to the password. Neither UP Solution nor Reseller shall be responsible for any losses arising out of the unauthorized use of the Account. If Merchant discloses its password to anyone or shares its Account, Device and/or POS Equipment with other people, Merchant takes full responsibility for its actions. Where possible, users of public or shared devices should log out at the completion of each visit. If Merchant sells or returns a Device or POS Equipment, Merchant should logout and/or deactivate such device before doing so. If Merchant fails to log out or deactivate its Device or POS Equipment, subsequent users may be able to access certain of its Account information.
(c) Permissions. Merchant shall be solely responsible for setting access permissions to its Account to employees or other users, and neither UP Solution nor any Reseller shall have any liability for any permissions granted in error or by unauthorized personnel. Merchant is solely responsible for ensuring that its authorized users comply with the terms and conditions of this Agreement.
7.7 PCI COMPLIANCE. Merchant acknowledges that Merchant’s business must be compliant with the Payment Card Industry Data Security Standard ("PCI DSS”
). Merchant shall cause its business to be in compliance with the PCI DSS requirements at all times.
7.8 SYSTEM REQUIREMENTS. Merchant must have a high speed Internet connection, and hardware and software compatible with Services.
7.9 VIRUSES AND SECURITY. It is Merchant’s responsibility to have in place and maintain virus protection software and security for all of its systems and data, which such security shall include firewalls, passwords, physical security and access control policies. Merchant acknowledges that the security and protection of the network and the data and applications on that network, including protections against unauthorized access, is solely and entirely Merchant’s responsibility. A properly configured firewall is required for each site using a persistent connection to the public Internet or any private network where there is a potential for unauthorized access to the UP Solution network. Merchant acknowledges that, to be effective, virus protection software, system passwords, and other security software require periodic and routine updates, which Merchant must obtain from its supplier or the manufacturer, as appropriate. UP Solution disclaims any warranty, express or implied, that, after the initial installation by UP Solution of any UP Solution-proprietary software, Merchant’s data will remain virus-free. Support or services hereunder necessitated by computer viruses, or by any failure or breach of Merchant’s security for its systems or data, including, without limitation, damage caused by persons lacking authorized access, are not covered under this Agreement, and will be supplied only upon Merchant’s request. Merchant waives any claims hereunder against UP Solution to the extent arising from Merchant’s failure to have or maintain current virus protection, or to the extent arising as a result of a failure or breach of Merchant’s security for its systems or data, or as a result of any unauthorized access to Merchant’s systems. If requested by Merchant, UP Solution shall provide, on a commercially reasonable efforts and on a time-and-materials basis, support or services to address damage caused by, but not limited to, any of the following: Merchant’s failure to have current virus protection; Merchant’s failure to maintain virus protection; damage arising as a result of a failure of Merchant’s security for its systems or data; damage arising as a result of a breach of Merchant’s security for its systems or data; or damage as a result of any unauthorized access to Merchant’s systems. Such support and services shall be billed at the prevailing standard UP Solution rates.
7.10 MERCHANT CONTENT. Merchant is solely responsible for its access to and use of the Services and any and all text, data, photos, graphics, images, logos, trademarks, tradenames, service marks, promotions, specials, Account information, product and other information relating to its business (collectively, the "Content”
) that Merchant or Merchants users submit or transmit to, through or in connection with Merchant’s use of the Services. Merchant represents and warrants that its Content shall not: (i) be false, inaccurate or misleading; (ii) be obscene, indecent, pornographic, defamatory, libelous, threatening, harassing, abusive or inflammatory; (iii) be fraudulent or involve the sale of illegal, counterfeit or stolen goods; (iv) infringe upon or misappropriate any third party’s copyright, patent, trademark, trade secret, or other intellectual property rights; (v) violate the terms of this Agreement; (vi) violate any applicable laws or regulations; (vii) contain or transmit any corrupted data or code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; or (viii) expose UP Solution to, or appear to create, any kind of liability for UP Solution. Merchant assumes all risks associated with its Content, including anyone’s reliance on its quality, accuracy, or reliability. Merchant agree to allow UP Solution to store or re-format Merchant’s Content on UP Solution’s or other third party servers and/or display such Content in connection with Merchant’s use of the Services in any way as UP Solution chooses. UP Solution reserves the right to remove any user (with or without notice) should UP Solution determine, in its sole discretion, that the Services have been compromised or in any way used inappropriately. Merchant agrees to pay for all royalties, fees and any other monies owing any person by reason of Merchant’s Content. By providing such Content to UP Solution, Merchant grant to UP Solution a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable right and license to use, reproduce, modify, adapt, publish, distribute, publicly display and publicly perform the Merchant’s Content in connection with Merchant’s use of the Services and for promoting the Services. UP Solution reserves the right, in its sole and absolute discretion, to remove, modify or disable any Content posted on or through the Services at any time (with or without notice). UP Solution will discontinue using any of the Merchant’s Content on or through the Services within a commercial reasonable period after Merchant removes such Content from its Account. In addition to any other right or license granted to UP Solution hereunder, UP Solution may also collect and use anonymized, aggregate data, including the Content, in connection with Merchant’s use of the Services for purposes of marketing, data analytics, and enhancing and optimizing the Services.
7.11 SECURITY. Merchant is solely responsible for any security breaches affecting cloud hosting servers or accounts. If Merchant’s server or website is in any way regarded as being responsible for or involved in an attack on or unauthorized access into another server or system, UP Solution will shut it down immediately. In addition to any other indemnify obligation hereunder, Merchant hereby agrees to indemnify UP Solution for any and all damages, costs, charges and expenses arising out of any security breaches affecting UP Solution or any of its other customers, including without limitation any cost or expenses to fix such security breaches.
7.12 INVESTIGATION OF VIOLATIONS. UP Solution may investigate any reported violation of this Agreement, or its policies or any complaints and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers or third parties. UP Solution will not access or review the contents of any e-mail or similarly stored electronic communications except as required or permitted by applicable law or legal process.
7.13 ACTIONS. UP Solution may restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or that potentially violates any laws. If UP Solution becomes aware that Merchant has possibly violated this Agreement, any related policies or guidelines, third party rights or laws, UP Solution may immediately take corrective action, including: (a) issuing warnings, (b) suspending or terminating UP Solution Cloud™ Services, (c) restricting or prohibiting any and all uses of content hosted on UP Solution's systems, and (d) disabling or removing any hypertext links to third-party web sites, any content distributed or made available for distribution via UP Solution Cloud™Services, or other content not supplied by UP Solution that, in UP Solution's sole discretion, may violate or infringe any law or third party rights or that otherwise exposes or potentially exposes UP Solution to civil or criminal liability or public ridicule. It is UP Solution's policy to terminate repeat infringers. These rights of action, however, do not obligate UP Solution to monitor or exert editorial control over the information made available for distribution via UP Solution Cloud™. If UP Solution takes corrective action because of a possible violation, UP Solution will not refund to Merchant any fees paid in advance for the corrective action.
7.14 DISCLOSURE RIGHTS. To comply with applicable laws and lawful government requests, to protect UP Solution's systems and customers, or to ensure the integrity and operation of UP Solution's business and systems, UP Solution may access and disclose any information it considers necessary or appropriate, including without limitation user profile information (i.e., name, e-mail address, etc.), IP addressing and traffic information, usage history, and content residing on UP Solution's servers and systems. UP Solution may report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties.
7.15 THIRD PARTY SERVICES. Merchant acknowledges that UP Solution uses third party services (such as networking, connectivity, storage, fulfillment and related technology) to provide the Services. Except if Merchant has purchased a bundled package Services that includes these third party services, such third party service providers may charge Merchant additional fees in connection with Merchant’s use of the Services and it is Merchant’s sole responsibility to pay such fees. UP Solution expressly disclaims all liability for the operation or security of such third party services, for Merchant’s inability to use the Services as a result of such third party services, for any act or omission of such third party service providers, or for your breach of the terms of your contract with such third party service providers as a result of using the Services.
7.16 SUPPORT AVAILABILITY. UP Solution’s standard coverage time period for support is 9:00 am – 12:00 am EST (6:00 am – 9:00 pm PST) Monday – Saturday and 12:00 pm – 9:00 pm EST (9:00 am – 6:00 pm PST) on Sunday; provided, however, that UP Solution will not provide support on Holidays (as defined below) or during times that UP Solution reasonably determines (in its sole discretion) that systems and server maintenance is necessary. "Holidays”
are defined as follows: New Year’s day (January 1st), Memorial Day (last Monday in May), Independence Day (July 4th), Labor Day (the 1st Monday in September), Thanksgiving Day (4th Thursday in November), and Christmas Day (December 25th). UP Solution reserves the right to modify the times and dates on which it shall provide standard coverage.
7.17 REPRESENTATIONS AND WARRANTIES OF MERCHANT. Merchant hereby represents and warrants that it is a business entity duly organized, validly existing and in good standing under the laws of the state in which it was organized and has all requisite power and authority to execute this Agreement and to perform all of the agreements, undertakings, representations and warranties herein contained.
7.18 MERCHANT’S INDEPENDENT STATUS. Merchant is not an agent or authorized representative of UP Solution.
7.19 DISCLAIMED WARRANTIES. UP Solution exercises no control over, and accepts no responsibility for, the content of the information passing through UP Solution's host computers, network hubs and points of presence, or the Internet. ALL SERVICES PERFORMED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE UP SOLUTION CLOUD SERVICES AND U CHARGE SERVICES, ARE PERFORMED ON AN "AS IS" AND "AS AVAILABLE”
BASIS AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING WITHOUT LIMITATION ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS, HOSTING SERVICES OR SERVICES THAT ARE INTERRUPTED, INACCURATE, UNRELIABLE, UNSECURE OR CONTAIN ERRORS. MERCHANT’S USE OF OR RELIANCE UPON THE SERVICES AND ANY THIRD PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT MERCHANT’S SOLE RISK AND DISCRETION. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, UP SOLUTION AND RESELLER DO NOT MAKE AND HEREBY DISCLAIM, AND MERCHANT WAIVES ALL RELIANCE ON, ANY REPRESENTATIONS OR WARRANTIES, ARISING BY LAW OR OTHERWISE, REGARDING THE SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.
7.20 LIMITATION OF LIABILITY. IN NO EVENT SHALL UP SOLUTION OR RESELLER BE LIABLE TO MERCHANT FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION THE COST OF COVER, DAMAGES ARISING FROM USE, PROFITS OR GOODWILL) ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE DEVICE, POS EQUIPMENT AND/OR SERVICES UNDER THIS AGREEMENT, WHETHER OR NOT MERCHANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT. IN NO EVENT SHALL UP SOLUTION OR RESELLER BE LIABLE TO MERCHANT OR ANY OTHER PARTY FOR ANY LOSS OF DATA OCCURRING AS A RESULT OF ANY PARTY’S USE OF THE DEVICE, POS EQUIPMENT AND/OR SERVICES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. MERCHANT WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS (INCLUDING PAYMENTS FOR GOODWILL) ON ACCOUNT OF ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT BY EITHER PARTY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, UP SOLUTION’S AND RESELLER’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT SHALL, IN NO CIRCUMSTANCE, EXCEED THE AMOUNT PAID BY MERCHANT HEREUNDER WITHIN THE LAST 12 MONTHS.
7.21 INDEMNIFICATION. Merchant shall defend, indemnify and hold harmless UP Solution and Reseller from and against any and all claims, losses, liabilities, costs (including attorney’s fees), damages and expenses arising from or related to: (a) Merchant’s breach of this Agreement; (b) any negligent or willful act or omission of Merchant; and/or (c) any third party claim arising out of Services or Protection Plan provided to Merchant and/or Merchant’s use of Services or Protection Plan.
7.22 GOVERNING LAW; CONSENT TO VENUE AND JURISDICTION; WAIVER OF JURY TRIAL. This Agreement shall be interpreted and construed in accordance with, and governed by, the internal laws of the State of New Jersey without reference to its conflict of law rules. Merchant and UP Solution agree that each may bring claims against the other only in its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. All actions, proceedings or litigation brought by UP Solution or Merchant shall be instituted and prosecuted in the Superior Court of New Jersey, Bergen County, or the United States District Court for the District of New Jersey. By execution and delivery of this Agreement, each party hereby agrees and accepts to subject themselves to the exclusive jurisdiction of the aforementioned courts. Each party irrevocably consents to the service of process of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by certified mail, postage prepaid, or overnight courier. UP SOLUTION AND MERCHANT WAIVE, INSOFAR AS PERMITTED BY LAW, TRIAL BY JURY IN ANY ACTION, PROCEEDING OR LITIGATION BETWEEN UP SOLUTION AND MERCHANT.
7.23 ATTORNEYS’ FEES. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement and UP Solution and/or Reseller is the prevailing party, UP Solution and Reseller shall be entitled to its reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which UP Solution and/or Reseller may be entitled.
7.24 CHANGES TO THIS AGREEMENT. This is an agreement between UP Solution and the Merchant. Merchant understands and acknowledges that any and all oral or written covenants or representations made by sales agents, Reseller or any other third party, whether express or implied, are not made with the prior written consent of UP Solution, are not made on behalf of UP Solution and will not have the force or authority to bind UP Solution. Sales representatives and other third parties have NO legal authority to bind UP Solution. Any such agreements, covenants and representations will not subject UP Solution to any obligations, disputes or lawsuits that may arise from such agreements, covenants or representations. UP Solution shall not be bound except in a writing executed by a duly authorized representative of UP Solution.
7.25 CUSTOMER REFERENCE. Merchant’s business name and the city, state and country of Merchant’s business may be identified by UP Solution in a list of its customers for marketing purposes without compensation. Merchant agrees (i) that UP Solution or its affiliate may identify you as a recipient of the services provided hereunder and use Merchant’s logo and copyrighted information in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by UP Solution or its affiliate for promotional purposes. If Merchant does not wish UP Solution to identify Merchant as one of its customers in its marketing materials, Merchant must submit Merchant’s request in writing to UP Solution, Attn: Sales Support 255 Route 17 South, Hackensack, NJ 07601 USA.
7.26 TRANSLATION. Notwithstanding any translation of this Agreement not in the English language, the English language version of this Agreement shall rule and the other language version shall be treated in the capacity of being created merely for the purpose of convenience.
7.27 COUNTERPARTS; ELECTRONIC SIGNATURES. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. This Agreement may be executed by way of facsimile, e-mail or other electronic transmission counterparts, each of which shall have the same force and effect as originally executed counterparts.