2a. SERVICE:Subject to the terms and conditions of this Agreement and during the Term (as defined below), iMerchant shall make the Service available to be used by Client’s Users solely for the internal business operations of Client. The terms of this Agreement shall also apply to updates, and upgrades subsequently provided by iMerchant to Client. iMerchant may upgrade the features, functionality, and other aspects of the Service, including any related Documentation, from time to time in its sole discretion, as part of its ongoing efforts to improve the Service. iMerchant has the authority to accept or decline account requests in its sole discretion with no responsibility to explain the reasoning behind such a decision.

2b. LICENSE DETAILS:iMerchant shall provide the Service as set forth in the merchant Agreements, including the Merchant Application & Agreement, the EULA (“End User License Agreement”), and any other additional agreements. The Agreements shall include at a minimum a listing of the Service being ordered and the related fees. Except as otherwise provided in the merchant Agreements, the Agreements are non-cancellable and shall be subject to the terms and conditions of this Agreement.

2c. SERVICE USAGE AND DATA STORAGE:The Agreements determine the fees for designated levels of usage and data storage (each a “Service Designation”), beginning with the fees payable by Client for the levels of usage and data storage as of the respective Effective Dates. Service Designations are determined by the total annual gross merchant value and order volume of Client transactions passed through the platform. iMerchant will employ commercially reasonable means to inform Client in writing if Client has exceeded its then current Service Designation. Client agrees that any usage in excess of its then-current Service Designation will be charged for by iMerchant at its then-current rates, and that iMerchant will automatically reclassify Client’s Service Designation and corresponding fee obligations to the appropriate Service Designation effective at the beginning of the next Renewal Term. Client shall also have the option to increase its Service Designation prior to the next Renewal Term, by contacting iMerchant in writing. Except as stated in this Section, Client acknowledges that exceeding its then-current Service Designation may result in service degradation for Client and other iMerchant customers and agrees that iMerchant has no obligation to permit Client to exceed its then-current Service Designation.
Subject to the provisions of this Agreement, once the Agreements have been executed each party will conduct and complete its duties and responsibilities detailed in the Agreements. If iMerchant or Client requests modifications or enhancements to the Agreements, each such change will be described in an amendment to the Agreements describing such modifications, enhancements or new development in appropriate detail and shall be effective upon signature by both parties. Client acknowledges and agrees that the Professional Services are based on Client’s representations and descriptions regarding their software and hardware environments, and that when preparing and rendering the Professional Services iMerchant will rely on the Agreements (which are prepared based on interviews and discussions with Client). iMerchant shall not be responsible for delays or amendments to the Professional Services to the extent they are originated by Client (such as incorrect or incomplete descriptions or representations in regard to the software and/or hardware environments in which iMerchant is rendering Implementations and/or Customizations). Additional Customizations may require extra fees.

2d. ACCURACY OF CLIENT’S CONTACT INFORMATION:Client shall provide current and complete information on Client’s legal business name, address, e-mail address and phone number, maintain and promptly update this information when prompted.

2e. E-MAIL AND NOTICES:Except for legal notices, each party’s e-mail address for communication and notice purposes relating to this Agreement shall be the e-mail address set forth in the Agreements (or subsequent e-mail addresses as advised by the parties). iMerchant may provide any and all notices, statements, and other communications in English to Client through either email, posting on the Service (or other electronic transmission) or by mail or express delivery service. Upon account setup, Client may further designate additional contacts for various types of notices. In addition, iMerchant may rely and act on all information, authorizations and instructions provided to iMerchant from the e-mail address and/or Client administrators specified in the Agreements.

2f. SERVICE CONTROL:Except as otherwise specifically provided in this Agreement, as between the parties iMerchant has and will maintain sole control over the provision, maintenance, operation and management of the iMerchant Materials.

2g. MODIFICATIONS; DISCONTINUATION OF SERVICE:iMerchant may adjust the Service or individual features and functionality of the Service from time to time and will use commercially reasonable means to inform Client of any material modifications. iMerchant further reserves the authority to terminate the Service, in whole or in part, upon 30 (sixty) days written notice to Client. Client acknowledges that iMerchant shall not be accountable to Client or any 3rd party for any such modification or end of the Service. In case of a modification or end that has a material, adverse impact on Client’s ability to use the Service, Client shall be entitled, as its sole and exclusive remedy, to terminate its subscription(s) to the affected Service, and receive a prorated refund of the subscription fees pre-paid by Client for the affected Service for the remaining portion of the Term, as per Section 5.4.

2h. USERS:Client accepts that, prior to being granted access to the Service, each User will be required to accept the terms of service applicable to Users at https://www.imerchant.online (the “Agreements”) and/or in the respective Agreements between the two parties, iMerchant, and the Client. Client agrees that (ii) Client shall be responsible for ensuring each User agrees to, and abides by the terms of, the Agreements; (iii) Client assumes all liability for any failure of the foregoing; and (iiii iMerchant shall not be liable to Client in connection with the failure or refusal by any such User to agree to accept any of the Agreements. Further, iMerchant reserves the right to modify the Agreements with or without prior notice to Client. The modified terms will be effective when iMerchant (ii) sends an e-mail to an affected User’s email address, (iii) posts a notice to the administrator of the User’s account, or (iiii) posts a notice on the home page or launch screen of the User’s user interface. This Agreement may be executed simultaneously in two or more counterparts (additional agreements), each of which will be deemed an original and all of which together will constitute but one and the same instrument.

5.1. TERM. This Agreement shall begin the Effective Date and shall continue in effect for the initial period specified in the Agreements (the “Initial Term”). Thereafter, this Agreement shall automatically renew for periods specified in the Agreements (each, a “Renewal Term”), unless either party provides written notice to the other of its intention not to renew during thirty (30) days before such expiration in accordance with the Agreements. The Initial Term and all Renewal Terms are collectively referred to as the “Term.”

5.2. SUSPENSION FOR ONGOING HARM. iMerchant may on reasonable notice to Client suspend access to the Service if iMerchant reasonably concludes that Client’s account is being used to engage in denial of service attacks, spamming, or illegal activity, the API Call Rate has been exceeded, and/or Client’s use of the Service is causing immediate, material and/or ongoing harm to iMerchant or others. In the event that iMerchant suspends access to the Service, iMerchant will use commercially reasonable efforts to limit the suspension to (and only for the duration of) the offending portion of the Service and work with Client to resolve the issues causing the suspension of Service. iMerchant maintains the right to charge Client for resolving such issues. Client agrees that iMerchant shall not be liable to Client nor to any 3rd party for any suspension of the Service under such circumstances. Any such suspension shall not excuse Client from Client’s responsibility to make payments under this Agreement.

5.3. TERMINATION FOR CAUSE/EXPIRATION.Either party may immediately terminate this Agreement in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the complaining party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in detail in order to provide the alleged breaching party a reasonable opportunity to restore such alleged breach.

5.4. EFFECT OF TERMINATION.Upon termination or expiration of this Agreement, Client shall have no rights to continue use of the Service. If this Agreement is terminated by Client for any reason other than a termination expressly permitted by this Agreement, then iMerchant shall be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of iMerchant’s breach of this Agreement, or by the Client under Section 2.9, then Client shall be qualified for a refund of (i) the pro rata portion of any fees paid by Client to iMerchant for the base Service under this Agreement for the terminated portion of the Term and (ii) the proportion of the fees paid by Client for the Professional Services which were not completed at the date of termination. (Client shall not be qualified for a refund of any fees paid for the Professional Services that have been completed at the date of termination, such proportion to be determined by iMerchant, acting reasonably). iMerchant shall not be required to delete or expunge data or documents that iMerchant is required to retain pursuant to applicable laws or for purposes of current or anticipated litigation, audit or government investigation.

6.1. SERVICE FEES. Client shall pay iMerchant the fees set forth in the Agreements (the “Service Fees”) according to the Section 6. The term of use for extra Users procured during current term will co-terminate with the end of the term for the applicable Service. Pricing for the first Renewal Term shall be at the rate set forth in the Agreements. If a price increase for additional Renewal Terms (which shall be notified to Client at least 45 days in advance of the relevant renewal) is unacceptable to Client, Client may provide notice of its intent not to renew this Agreement for the upcoming Renewal Term in accordance with Section 5.1

6.2. PROFESSIONAL FEES. Client shall pay iMerchant the fees for Customization and training as described in the Agreements (the “Professional Fees”) according to this Section 7. Client shall reimburse (compensate) iMerchant for all reasonable, non-incidental out-of-pocket expenses that are pre-approved in writing by Client and with regard to the Professional Service. iMerchant agrees to maintain appropriate records and to submit copies of all receipts necessary to verify such expenses.

6.3. READ-ONLY ACCOUNTS. If Client no longer wishes to use the full range of Services but still requires continued access to the Client Data, or some other part of the Services, Client shall pay for the iMerchant plan with the lowest available Service Designation at the next relevant Renewal Term. For the avoidance of doubt the provisions of Section 2.3 continue to apply to any such Service Designation.

6.4. INVOICES; PAYMENT.All invoices shall be sent by iMerchant as described in the applicable Agreements (for the Service), or Agreements (for the Professional Services). All fees payable are due within thirty (30) days from the invoice date unless stated otherwise in the applicable Agreements or Agreements. Client admits that it may receive various invoices depending on the nature of the services purchased from iMerchant. All fees are non-refundable, except as otherwise explicitly stated in this Agreement.

6.5. LATE PAYMENT.iMerchant saves the right to suspend or terminate access to the Service upon seven (7) days’ written notice to Client in case of late or non-payment of iMerchant’s invoices. Overdue amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.

6.6. TAXES. iMerchant fees do not include any state, federal, foreign, local taxes, levies or duties of any kind, including value-added, sales use or withholding taxes (“Taxes”). Client is accountable for paying all Taxes, excluding only taxes based on iMerchant’s net income. If iMerchant has the legal obligation to pay or collect Taxes for which Client is responsible under this Section 6.6, the appropriate amount shall be invoiced to and paid by Client unless Client provides iMerchant with a valid tax exemption certificate authorized by the appropriate taxing authority.

7.1. OWNERSHIP OF CLIENT DATAAs between iMerchant and Client, all title and intellectual property rights in and to the Client Data is owned exclusively by Client. Client accepts and agrees that in connection with the provision of the Service, iMerchant may store and maintain Client Data for a period of time consistent with iMerchant’s standard business processes for the Service. Client allows iMerchant a limited, revocable, non-exclusive, non-transferable (except in connection with an assignment of this Agreement), sublicensable license to access, store, and process the Client Data to the level necessary to provide the Service and otherwise fulfill its rights and obligations under this Agreement. Notwithstanding the foregoing, nothing in this Agreement is intended to prevent iMerchant from generating and using iMerchant Data for purposes of allowing, measuring, upgrading and marketing iMerchant’s products and services; provided that iMerchant shall not disclose to any 3rd party any information that is recognizable as Client-specific information. Following expiration or termination of the Agreement or a Client account, if applicable, iMerchant may deactivate the applicable Client account(s) and delete any related data associated.

7.2. iMERCHANT MATERIALS. All rights, title and interest in and to the iMerchant Materials (including without limitation all intellectual property rights therein and all modifications, extensions, customizations, scripts or other derivative works of the Service provided or developed by iMerchant) are owned exclusively by iMerchant or its licensors. Except as provided in this Agreement, the rights granted to Client do not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. Client provides iMerchant a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Service (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Client or any Users related to the operation or functionality of the Service. Any rights in the Service or iMerchant’s intellectual property not expressly granted herein by iMerchant are reserved by iMerchant. iMerchant’s name, trademarks service marks, logos and product and service names are marks of iMerchant (the “iMerchant Marks”). Client agrees not to use or display or use the iMerchant Marks in any way without iMerchant’s express prior written permission.

7.3. OWNERSHIP OF WORK PRODUCT.All Work Product will be owned solely by iMerchant. To the extent iMerchant is not automatically deemed the author and/or owner of all Work Product, Client hereby allows and authorizes the iMerchant with all right, title, and interest in the Work Product created by or on behalf of iMerchant in relation to the Professional Services and this Agreement including, without limitation, any specifications concepts, ideas, methodologies, trade secrets and expertise developed by iMerchant in executing the Professional Services hereunder. Client hereby grants to iMerchant an international, royalty-free, unrestricted, fully paid up, irrevocable, perpetual and nonexclusive license to use and otherwise exploit any Client owned or licensed specifications, information, feedback, suggestions or other details provided by Client to iMerchant in relation to the Professional Services. iMerchant grants Client a royalty free, fully paid-up, international, non-exclusive, transferable license to use any Work Product developed by iMerchant for Client for internal purposes during the Term, solely in accordance with this Agreement. No rights, neither express nor implied, are granted under this Agreement with respect to any patents, trademarks, trade secrets or copyrights, except as individually provided for in this Agreement. Each party hereby agrees to provide all documents, take all rightful oaths, and do any and all acts which may be necessary, beneficial, or convenient for securing and maintaining the rights provided or assigned in this Section.

8.1. RESERVATION OF RIGHTS.No part of this Agreement allows any right, title, or interest in or to (including any license under) any intellectual property rights in or relating to, the Service, iMerchant Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Service, the iMerchant Materials are and will remain with iMerchant.

9.1. USERS. Client shall grant iMerchant the names and email addresses of Users authorized by Client to access the Service. iMerchant will then provide each authorized User an email invitation with temporary Access Credentials in order to allow the User to set up an account. Client accepts and acknowledges that the accuracy of the e-mail addresses provided is the sole responsibility of Client, and that iMerchant is not obligated to verify either the accuracy of the e-mail address or the identity of the email recipient. Users are limited to the number of seats set forth in the Agreements (as may be increased during the Term in accordance with the Agreements). Access Credentials are for designated Users and must not be used, shared, or transferred by more than one User. Client will be responsible for the confidentiality and use of User Access Credentials. Client will also be responsible for maintaining all Client Data, including that which contains business information, account registration, account holder information, financial information, and all other data of any sort included within emails or entered through the Service or under Client’s account. Any Client Data obtained from a User correlated with Client will be presumed to have been sent by Client. Client shall use all commercially reasonable means to prevent unauthorized entry to or use of the Service and shall immediately notify iMerchant of any unapproved entry or use of the Service and any loss or theft or unauthorized use of any User’s password or name and/or Service account numbers.

9.2. SECURITY. iMerchant shall sustain commercially acceptable administrative, physical and technical protections designed for the privacy and integrity of Client Data. All Client Data shall be prepared in accordance with applicable U.S. local, state, and federal laws. Additionally, iMerchant’s shall provide basic support and maintenance services in accordance with the iMerchant Agreements.

9.3. PRIVACY. The iMerchant Privacy Policy is available at https://www.imerchant.com/privacy-policy . For all other jurisdictions, iMerchant’s handling of personally identifiable information shall be in accordance with the iMerchant Privacy Policy, available https://www.imerchant.com/privacy-policy .

9.4. TRANSMISSION. Client accepts that the technical processing and transmission of Client Data is fundamentally necessary to use of the Service. Client is in charge of securing DSL, cable or another high speed Internet connection and the most recent “browser” software in order to utilize the Service. Client explicitly consents to iMerchant’s interception and storage of Client Data as needed to provide the Service, and Client accepts and agrees that the Client Data will be subject to transmission over the Internet, and over a variety of networks, only part of which may be owned and/or operated by iMerchant. Client further accepts and agrees that Client Data may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic methods. Without restricting iMerchant’s applicable duties under these Terms & Conditions regarding confidentiality and security, iMerchant is not taking responsibility for any Client Data that is delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by iMerchant, including, but not limited to, the internet and Client’s local network. Client shall not call or otherwise invoke the API more than 120 times during any consecutive 60 second period (the “API Call Rate”), and Customer acknowledges that iMerchant may implement technical measures as it deems necessary to prevent the API Call Rate being exceeded.

10.1. DEFINITION. “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including, without limitation, documents, prototypes, samples, plant and equipment), which is designated as "Confidential," "Proprietary" or any similar designation. For the avoidance of doubt, Client Data is the Confidential Information of Client and iMerchant Materials is the Confidential Information of iMerchant. Notwithstanding the foregoing, the following shall not be subject to the constraints on Confidential Information (i) information that was openly available at the time of its disclosure, or becomes openly available through no fault of the receiving party, (ii) information that was legally in the receiving party’s ownership without restriction prior to disclosure, (iii) information that was legally disclosed to the receiving party by a third party without restriction, (iv) information that was independently developed by employees and/or contractors of the receiving party who did not have access to, and without use of or reference to the disclosing party’s Confidential Information.

10.2. OBLIGATIONS OF THE PARTIES. Each party agrees to use the same level of care that it uses to protect the confidentiality of its own confidential information of like kind (at all times exercising at least a commercially reasonable degree of care in the protection of such confidential information) not to use or disclose Confidential Information except to the extent necessary to perform its responsibilities or exercise rights under this Agreement or as directed by the disclosing party. The receiving party may disclose Confidential Information on a need to know basis to its contractors and service providers who shall be bound by confidentiality and non-use responsibilities at least as restrictive as those in this Section 10. Either party may disclose Confidential Information to the level that such disclosure is required by law or order of a court or request or requirement of any other governmental authority. Additionally, either party may reveal the terms of this Agreement to (i) its legal, business and financial advisors with a need to know solely for the purpose of providing services to such party; and (ii) prospective business parties in contemplation of a merger, acquisition or similar transaction, provided, however, that any such recipient shall first be bound by a written agreement requiring such recipient not to disclose the terms of this Agreement to any 3rd party and to use these terms only for the purposes of evaluating the applicable transaction.

11.1. WARRANTY OF FUNCTIONALITY. iMerchant authorizes that (i) the Service will perform substantially in agreement with the functionality described in the applicable Documentation, and (ii) such functionality will not be materially decreased during the then-current term. Client’s sole and exclusive remedy for iMerchant’s breach of this warranty shall be that iMerchant shall be required to use commercially reliable efforts to adjust the Service to achieve in all material respects the functionality described in the relevant documentation and if iMerchant is not able to restore such functionality, Client shall be entitled to terminate the Agreement and receive a pro-rata refund of the subscription fees paid under the Agreement for its use of the Service for the terminated portion of the then-current subscription term, in accordance with Section 5.4. iMerchant shall have no responsibility with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to merchant@imerchant.online. The warranties described in this Section 11.1 are made to and for the benefit of Client only. Such warranties shall only apply if the relevant Service has been utilized in agreement with the applicable documentation, this Agreement and applicable law.

11.2. WARRANTY OF NO MALICIOUS CODE.Client warrants that it will not introduce any viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”) into the Service.

11.3. DISCLAIMER OF WARRANTIES.For the avoidance of doubt, the foregoing warranties are applicable only to the Service as provided by iMerchant and described in the Documentation. Any Customizations will be subject to the warranties provided in the Agreements, if any.

EXCEPT AS OTHERWISE STATED IN THIS SECTION 11, THE SERVICE IS PROVIDED TO CLIENT ON AN “AS IS” AND “AS AVAILABLE” BASIS. iMERCHANT DOES NOT WARRANT OR REPRESENT THAT CLIENT’S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CLIENT’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CLIENT’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN THIS SECTION 11 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY iMERCHANT. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. iMERCHANT EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CLIENT’S USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. CLIENT ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CLIENT’S PURPOSES.

12.1. EXCLUSION OF CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FOR ANY LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR OTHER INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 12.2 BELOW.

12.2. LIMITATIONS OF LIABILITY. THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF: (i) THE TOTAL FEES PAYABLE BY THE CLIENT FOR THE SERVICE DURING THE FIRST TWELVE (12) MONTHS OF THIS AGREEMENT; AND (II) THE TOTAL FEES PAID FOR THE SERVICE GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OUT OF WHICH THE LIABILITY AROSE.

12.3. EXEMPTIONS.The limitations of liability described in Section 12.2 shall not apply to (i) either party’s indemnification obligations pursuant to Section 13 below, (ii) fees due under this Agreement, (iii) a breach of Section 10 of this Agreement; or (iv) any Client fraud, gross negligence, or willful / intentional misconduct. Regardless of anything to the contrary, neither party shall be liable to the other party to the extent such liability would not have occurred but for the other party’s failure to follow the terms of this Agreement.

12.4. ACKNOWLEDGMENT.Both parties accept that the fees reflect the allocation of risk described in this Agreement and that the parties would not enter into this Agreement without these limitations on their liability.

13.1. INFRINGEMENT.Subject to the terms and conditions set forth in Section 12, iMerchant shall, at its own expense, defend Client from and against any and all allegations, threats, claims, suits, and proceedings brought by 3rd parties (collectively “Claims”) alleging that the Service, as used in regard with this Agreement, infringes such 3rd party’s valid patents, copyrights or trademarks, or misappropriation such 3rd party’s trade secrets, and shall compensate Client from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such Claim(s). iMerchant will have no liability for Claims or Losses to the extent arising from (i) use of the Service in violation of this Agreement or applicable law, (ii) use of the Service after iMerchant informs Client to discontinue use because of an infringement claim, (iii) modifications to the Service not made by iMerchant, or made by iMerchant based on Client specifications or requirements, (iv) use of the Service in combination with any non-iMerchant software, application or service, or (v) services offered by Client or revenue earned by Client for such services. If a Claim of infringement as described above is brought or threatened, iMerchant shall, at its sole option and expense, use commercially rational efforts either (i) to obtain a license that will let Client to continue using the Service without cost to Client; (ii) to modify or replace all or parts of the Service, as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (iii) if (i) and (ii) are not commercially practicable, terminate this Agreement and refund to the Client a prorated refund of the subscription fees paid under this Agreement for the terminated portion of the Term. The rights and remedies granted to Client under this Section 13.1 state iMerchant’s entire liability, and Client’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a 3rd party.

13.2. CLIENT’S INDEMNITY. Subject to the terms and conditions described in this Section 13, Client shall, at its own expense, defend iMerchant from and against any and all Claims: (i) alleging that the Client Data or any trademarks or service marks, or any use thereof, infringes the copyright or trademark or misappropriates the trade secrets of a 3rd party, or violates applicable law; or (ii) arising from Client’s gross negligence or willful misconduct, and shall indemnify iMerchant from and against liability for any Losses to the extent based upon such Claims.

13.3. INDEMNIFICATION PROCEDURES AND SURVIVAL.In the event a party becomes aware of a Claim for which the other party may have an indemnification responsibility, the indemnified party shall: (i) promptly inform the indemnifying party documenting of such Claim; (ii) allow the compensating party to have sole control of its defense and settlement; provided, however, that the compensating party shall not enter into any settlement or compromise of any such Claim that forces any liability or responsibility on the indemnified party without the indemnified party’s prior written agreement, which consent shall not be inconsiderately withheld or delayed; and (iii) upon request of the compensating party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. A party’s indemnification obligations are expressly controlled upon the indemnified party’s compliance with this Section 13.3, except that failure to inform the indemnifying party of such Claim shall not relieve that party of its responsibilities, but such obligations shall be minimized to the extent of any damages identifiable to such failure.

14.1. JURISDICTION AND VENUE. Subject to the above arbitration provisions, the parties agree that any and all disputes, claims and actions, at law or in equity, arising out of or relating to in connection to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Service in the federal or state courts located in the State of Delaware and each party agrees that such courts shall have exclusive jurisdiction and venue for any such actions, except that iMerchant maintains the right to submit a Dispute to any court of competent jurisdiction. iMerchant also may seek injunctive or other equitable relief for breach of this Agreement in any court of competent jurisdiction wherever located. Client agrees to the jurisdiction of and venue in such courts and waives any objection as to inconvenient forum. The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be authorized to recover its reasonable legal fees and costs and expenses from the other party.

14.2. PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS AND NON-INDIVIDUALIZED RELIEF. CLIENT AGREES THAT CLIENT MAY BRING CLAIMS AGAINST IMERCHANT ONLY ON AN INDIVIDUAL BASIS AND HEREBY WAIVES THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW. FURTHER, UNLESS BOTH PARTIES OTHERWISE AGREE IN WRITING, THE COURT MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.

14.3. DISPUTE RESOLUTION AND ARBITRATION.THIS SECTION CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. THEY AFFECT EACH PARTY’S RIGHTS CONCERNING THE RESOLUTION OF ANY DISPUTE (DEFINED BELOW) BETWEEN THE PARTIES.
To expedite resolution and the cost of any dispute, controversy or claim between you and us related to any dispute or controversy arising from or relating to your use or inability to use the Services, this Agreement or the enforcement of any provision of this Agreement (a “Dispute”), you and we agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon receipt of a written notice (each, a “Notice”). Your address for such Notices is your billing address, or an email to the email address you have provided in your Passfeed Account. Our address for such notices is: 9 E 53rd Street, 5th Floor, New York, NY 10022, Attention: Legal, or by email to merchant@imerchant.online. Any Notice from you must include your name, pertinent Account information, a brief description of the Dispute, and your contact information, so that we may evaluate the Dispute and attempt to informally resolve the Dispute. Any Notice from us will include pertinent Account information, a brief description of the Dispute, and our contact information, so that you may evaluate the Dispute and attempt to informally resolve the Dispute. If the informal negotiations are successful, no further action is necessary.

14.4. IF THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE THROUGH INFORMAL NEGOTIATIONS, THE PARTIES AGREE THAT EITHER YOU OR WE MAY ELECT TO HAVE THE DISPUTE (EXCEPT THOSE DISPUTES EXPRESSLY EXCLUDED BELOW) FINALLY AND EXCLUSIVELY RESOLVED BY BINDING ARBITRATION. ANY ELECTION TO ARBITRATE BY ONE PARTY WILL BE FINAL AND BINDING ON THE OTHER. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL.
The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org.

14.5. To expedite resolution and the cost of any dispute, controversy or claim between you and us related to any dispute or controversy arising from or relating to your use or inability to use the Services, this Agreement or the enforcement of any provision of this Agreement (a “Dispute”), you and we agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon receipt of a written notice (each, a “Notice”). Your address for such Notices is your billing address, or an email to the email address you have provided in your iMerchant Account. Our address for such notices is: iMerchant, 9 E 53rd Street, 5th Floor, New York, NY 10022, Attention: Legal, or by email to merchant@imerchant.online. Any Notice from you must include your name, pertinent Account information, a brief description of the Dispute, and your contact information, so that we may evaluate the Dispute and attempt to informally resolve the Dispute. Any Notice from us will include pertinent Account information, a brief description of the Dispute, and our contact information, so that you may evaluate the Dispute and attempt to informally resolve the Dispute. If the informal negotiations are successful, no further action is necessary.

14.6. IF THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE THROUGH INFORMAL NEGOTIATIONS, THE PARTIES AGREE THAT EITHER YOU OR WE MAY ELECT TO HAVE THE DISPUTE (EXCEPT THOSE DISPUTES EXPRESSLY EXCLUDED BELOW) FINALLY AND EXCLUSIVELY RESOLVED BY BINDING ARBITRATION. ANY ELECTION TO ARBITRATE BY ONE PARTY WILL BE FINAL AND BINDING ON THE OTHER. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL.
The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If such costs are determined by the arbitrator to be excessive, we will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and we may litigate in court to compel arbitration, stay proceeding pending arbitration or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

14.7. The parties agree that the following Disputes are not subject to the above provisions concerning information negotiations and binding arbitration: (1) any suit to compel arbitration, stay proceeding pending arbitration or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator; (2) any suit to seek temporary injunctive relief that will remain in place only until an arbitrator can determine whether the relief should be continued, modified or removed; or (3) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. In addition, either party may assert claims, if they qualify, in small claims court in New Castle County, Delaware or any United States county where you live or work.

14.8. The parties agree that any arbitration will be limited to the Dispute between us and you individually.
TO THE FULL EXTENT PERMITTED BY LAW, (1) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER; (2) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS-ACTION PROCEDURES; AND (3) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS.

14.9. Arbitration will take place in New Castle County, Delaware. The parties agree that for any Dispute not subject to arbitration (other than claims proceeding in any small claims court), or where no election to arbitrate has been made, the state and federal courts located in New Castle County, Delaware have exclusive jurisdiction and the parties agree to submit to the venue the personal jurisdiction of such courts.

Except as expressly provided otherwise, this Agreement is governed by, and will be construed under, the laws of the State of Delaware, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Judicial proceedings (other than small claims actions) that are excluded from the agreement to arbitrate must be brought in state or federal court in, or closest to, New Castle County, Delaware, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction there. You and we both agree to waive their right to a jury trial.

16.1. NOTICE.Any legal notice required under this Agreement shall be provided to the other party in writing. If Client has a legal dispute with iMerchant or if Client wishes to provide a notice under Section 13 (Indemnification) of this Agreement, or if Client becomes subject to bankruptcy or other similar legal proceedings, Client will promptly send written notice to merchant@imerchant.online along with a copy by mail or express delivery service.

16.2. AGREEMENTS.Under no circumstances will the terms, conditions or provisions of any purchase order, invoice or other administrative document issued by Client in connection to this Agreement be considered to modify, alter or expand the rights, duties or obligations of the parties under, or otherwise adjust, this Agreement, regardless of any failure of iMerchant to object to such terms, provisions, or conditions. The Agreement shall not be modified, or amended, except as expressly described herein, or in writing and signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted, or by a properly executed Agreement.

16.3. ASSIGNMENT AND SUBCONTRACTING.Client may not assign this Agreement without the prior written consent of iMerchant. This Agreement shall ensure to benefit and bind the parties hereto, and their successors and assigns. Client agrees that iMerchant may subcontract aspects of the Service and shall not be in charge of or liable for any breach by the applicable service provider that is beyond iMerchant’s logical control.

16.4. THIRD-PARTY BENEFICIARIES.There are no 3rd-party beneficiaries to this Agreement.

16.5. RELATIONSHIP OF THE PARTIES.This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although iMerchant reserves the right to name Client as a user of the Service in a press release or similar public statement.

16.6. NON-SOLICITATION.During the Term and for one year thereafter, Client shall not, and shall not assist any other person to, directly or indirectly recruit or seek (other than by general advertisement not directed specifically to any person or persons) for employment or engagement as an independent contractor any employee or independent contractor then employed or engaged by iMerchant or any and involved in any respect with the Service or the performance of this Agreement. In the event of a violation of this Section, iMerchant will be entitled to liquidated damages equal to the compensation paid by iMerchant to the applicable employee or contractor during the prior twenty four (24) months.

16.7. SEVERABILITY.If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this Agreement shall otherwise stand in full force and effect.

16.8. WAIVER. A waiver of any breach under this Agreement should not constitute a waiver of any other breach or future breach.

16.9. FORCE MAJEURE.Neither party shall be liable for loss, delay, nonperformance to the extent resulting from any force majeure event, including, but not limited to, acts of God, strike, riot, fire, explosion, flood, earthquake, natural disaster, terrorism, act of war, civil unrest, criminal acts of 3rd parties, failure of the Internet, governmental acts or orders or restrictions, failure of suppliers, labor stoppage or dispute (other than those involving iMerchant employees), or shortage of materials, provided that such party uses reasonable efforts, under the circumstances, to inform the other party of the circumstances causing the delay and to resume performance as soon as possible and any delivery date shall be prolonged accordingly.

16.10. HEADINGS.The Section headings used in this Agreement are included for reference purposes only and shall not affect the meaning or interpretation of this Agreement in any way.

16.11. SURVIVAL. Sections 3, 5.4, and 6-16 shall survive the termination or expiration of this Agreement.

16.12. EXECUTION IN COUNTERPARTS.This Agreement may be executed in counterparts and/or by facsimile or electronic signature and if so executed shall be equally binding as an original copy of this Agreement executed in ink by both parties.