GoTab's Merchant Terms & Conditions
PLEASE READ THESE GOTAB MERCHANT TERMS AND CONDITIONS CAREFULLY AS THEY GOVERN YOUR ACCESS TO AND/OR USE OF THE GOTAB PRODUCTS, SERVICES, OR OTHER ONLINE OFFERINGS. BY SUBMITTING A MERCHANT APPLICATION AND USING GOTAB PRODUCTS, SERVICES, OR OTHER ONLINE OFFERINGS, YOU ACKNOWLEDGE YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN ON BEHALF OF THE MERCHANT NAMED IN THE APPLICABLE ORDER FORM (“MERCHANT”) AND THAT YOU HAVE THE RIGHT AND AUTHORITY TO BIND SUCH MERCHANT TO THESE TERMS AND CONDITIONS. TOGETHER, THE ORDER FORM(S) AND THESE TERMS AND CONDITIONS CONSTITUTE THE AGREEMENT BETWEEN GOTAB, INC. (“GOTAB”) AND MERCHANT (“AGREEMENT”).
IF MERCHANT DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, MERCHANT MAY NOT USE, AND SHALL CEASE USING, ANY GOTAB PRODUCTS, SERVICES, OR OTHER ONLINE OFFERINGS.
Section 1. DEFINITIONS
Capitalized terms will have the meanings set forth in this Section 1, or in the section where they are first used.
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Merchant or any Authorized Users to access the GoTab Solution.
1.2 “Authorized User” means each of Merchant’s employees, agents, and independent contractors who are authorized to access the GoTab Solution pursuant to Merchant’s rights under this Agreement.
1.3 “GoTab Solution” means the GoTab software-as-a-service mobile ordering and payment platform that is designed to allow Guests to place food and beverage orders on-demand and communicate such orders to Merchant’s systems for processing and fulfillment.
1.4 “Merchant Content” means any content and information provided or submitted by, or on behalf of, Merchant or its Authorized Users for use with the Services. Merchant Content does not include Usage Data or Guest Data.
1.5 “Documentation” means the technical materials provided by GoTab to Merchant in hard copy or electronic form describing the use and operation of the GoTab Solution.
1.6 “Error” means a reproducible failure of the GoTab Solution to substantially conform to the Documentation.
1.7 “Error Corrections” means bug fixes or workarounds intended to correct Errors in the GoTab Solution.
1.8 “Guests” means patrons or other customers of Merchant who access the consumer-facing application of the GoTab Solution to place food and beverage orders on-demand from Merchant.
1.9 “Guest Data” means any data or information provided or submitted by a Guest to or through the Services, which is shared with Merchant for the purposes of fulfilling an order placed by such Guest.
1.10 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.11 “Professional Services” means professional services provided by GoTab to Merchant as described in any Statement of Work, including configuration or customization services.
1.12 “Services” means any services provided by GoTab to Merchant under this Agreement, including, but not limited to, provision of the GoTab Solution and Professional Services.
1.13 “Statement of Work” or “SOW” means a fully executed statement of work entered into by the Parties, pursuant to which GoTab provides Professional Services to Merchant.
1.14 “Supported Environment” means the minimum hardware, software, and connectivity configuration requirements specified from time to time by GoTab as required for use of the GoTab Solution. The current requirements are described in the Documentation. Additional requirements may be set forth on an Order Form or one (1) or more Statements of Work.
1.15 “Usage Data” means information collected or deduced by GoTab and/or the Services based on Merchant’s, its Authorized Users’, and Guests’ use of the GoTab Solution thereof.
Section 2. PROVISION OF SERVICES
2.1 Access. Subject to Merchant’s payment of the fees set forth on the Order Form (“Fees”), GoTab will provide Merchant with access to the GoTab Solution. On or as soon as reasonably practicable after the Merchant submits a complete Merchant Application, GoTab will provide to Merchant the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Merchant, Guests, and its Authorized Users to access the GoTab Solution in accordance with the Access Protocols. Merchant will use commercially reasonable efforts to prevent unauthorized access to, or use of, the GoTab Solution, and notify GoTab promptly of any such unauthorized use known to Merchant. In the event integration or other configuration services are required to implement the GoTab Solution within Merchant’s systems, such services shall be set forth on an Order Form, or a separate Statement of Work. Merchant agrees to reasonably cooperate with, and provide all requested documentation, information, and materials, as is required by GoTab in connection with such integration or other configuration services.
2.2 Support Services. Subject to the terms and conditions of this Agreement, GoTab will exercise commercially reasonable efforts to (a) provide support for the use of the GoTab Solution to Merchant, (b) keep the GoTab Solution operational and available to Merchant, and (c) provide Error Corrections in the event of any Errors, in each case in accordance with its standard policies and procedures.
2.3 Hosting. GoTab will, at its own expense, provide for the hosting of the GoTab Solution, provided that nothing herein will be construed to require GoTab to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Merchant or any Authorized User to access the GoTab Solution from the Internet.
Section 3. INTELLECTUAL PROPERTY
3.1 Grant of Rights. Subject to the terms and conditions of this Agreement, GoTab grants to Merchant a non-exclusive, non-transferable (except as permitted under Section 12.5) right during the Term (as defined below), for Merchant’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form, (a) to access and use the GoTab Solution solely within the Supported Environment, and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Merchant’s use of the GoTab Solution. Merchant may permit any Authorized Users to access and use the features and functions of the GoTab Solution as contemplated by this Agreement.
3.2 Restrictions. Merchant will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the GoTab Solution or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the GoTab Solution or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the GoTab Solution or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the GoTab Solution, except as permitted by law; (e) interfere in any manner with the operation of the GoTab Solution or the hardware and network used to operate the GoTab Solution; (f) modify, copy or make derivative works based on any part of the GoTab Solution or Documentation; (g) access or use the GoTab Solution to build a similar or competitive product or service; (h) attempt to access the GoTab Solution through any unapproved interface; or (i) use the Guest Data for any reason other than solely as necessary to fulfill orders placed by such Guests through the Services, or otherwise use the GoTab Solution or Documentation in any manner that exceeds the scope of use permitted under Section 3.1 or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Merchant acknowledges and agrees that the GoTab Solution will not be used, and are not licensed for use, in connection with any of Merchant’s time-critical or mission-critical functions.
3.3 Ownership. The GoTab Solution and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of GoTab and its suppliers. All rights in and to the GoTab Solution and Documentation not expressly granted to Merchant in this Agreement are reserved by GoTab and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Merchant regarding the GoTab Solution, Documentation, or any part thereof.
3.4 Open Source Software. Certain items of software may be provided to Merchant with the GoTab Solution and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.1 or 10. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Merchant’s rights under, or grants Merchant rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, GoTab makes such Open Source Software, and GoTab’s modifications to that Open Source Software, available by written request at the notice address specified below.
3.5 Feedback. Merchant hereby grants to GoTab a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Merchant, including Authorized Users, relating to the Services. GoTab will not identify Merchant as the source of any such feedback.
Section 4. FEES AND EXPENSES; PAYMENTS
4.1 Fees. In consideration for the access rights granted to Merchant and the Services performed by GoTab under this Agreement, GoTab will be entitled to the fees set forth on the Order Form (“Fees”). All amounts paid by Guests in connection with orders placed through the GoTab Solution (“Guest Payments”) are received through GoTab's third party payment processors: Stripe, Inc., Paysafe, Inc. or Adyen N.V. (“Payment Processors”). After deducting any payment processing fees (“Payment Processor Fees”), the Payment Processors will forward to GoTab its fees and the balance will be forwarded to the merchant (“Merchant Share”). If Merchant is using a dedicated merchant account, the Merchant will receive the Merchant Share according to the Payment Processor’s policy. If Merchant is using a shared merchant account, merchant shall receive the Merchant Share on a weekly basis, for all Guest Payments received in such week, within four (4) business days of the end of each such week. GoTab reserves the right to modify the Fees payable hereunder upon written notice to Merchant at least ninety (90) days prior to the end of the then-current term. GoTab will be reimbursed only for expenses that are expressly provided for in a Order Form or an SOW or that have been approved in advance in writing by Merchant, provided GoTab has furnished such documentation for authorized expenses as Merchant may reasonably request. Merchant will maintain complete, accurate and up-to-date Merchant billing and contact information at all times.
4.2 Payment Processors.
(a) Stripe. Merchant acknowledges and agrees that Guest Payments and other payments hereunder that are processed by Stripe, Inc. (“Stripe”) under this Agreement are subject to the Stripe Connected Account Agreement (available at https://stripe.com/connect-account/legal), which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this Agreement, Merchant agrees to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of GoTab enabling payment processing services through Stripe, Merchant agrees to provide GoTab with accurate and complete information about Merchant and Merchant’s business, and Merchant authorizes GoTab to share such information and transaction information related to Merchant’s use of the payment processing services provided by Stripe.
(b) Paysafe. Merchant acknowledges and agrees that Guest Payments and other payments hereunder that are processed by Paysafe, Inc. (“Paysafe”) under this Agreement are subject to the Paysafe / Merrick Bank Terms and Conditions (available at https://www.paysafe.com/fileadmin/content/agreements/Merrick_Terms_and_Conditions.pdf) (“Paysafe Terms and Conditions”). By agreeing to this Agreement, Merchant agrees to be bound by the Paysafe Terms and Conditions, as the same may be modified by Paysafe from time to time. As a condition of GoTab enabling payment processing services through Paysafe, Merchant agrees to provide GoTab accurate and complete information about Merchant and Merchant’s business, and Merchant authorizes GoTab to share such information and transaction information related to Merchant’s use of the payment processing services provided by Paysafe.
(c) Adyen. Merchant acknowledges and agrees that Guest Payments and other payments hereunder that are processed by Adyen N.V. (“Adyen”) under this Agreement are subject to the Adyen for Platforms Terms & Conditions (available at https://www.adyen.com/legal/terms-and-conditions-adyen-for-platforms) (“Adyen Terms and Conditions”). By agreeing to this Agreement, Merchant agrees to be bound by the Adyen Terms and Conditions, as the same may be modified by Adyen from time to time. As a condition of GoTab enabling payment processing services through Adyen, Merchant agrees to provide GoTab accurate and complete information about Merchant and Merchant’s business, and Merchant authorizes GoTab to share such information and transaction information related to Merchant’s use of the payment processing services provided by Adyen.
4.3 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Merchant will be responsible for payment of all such taxes (other than taxes based on GoTab’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the GoTab Solution to Merchant.
Section 5. MERCHANT CONTENT AND RESPONSIBILITIES
5.1 License; Ownership. Merchant is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Merchant Content. Merchant will obtain all third-party licenses, consents and permissions needed for GoTab to use the Merchant Content to provide the Services. Without limiting the foregoing, Merchant will be solely responsible for obtaining from third parties all necessary rights for GoTab to use the Merchant Content submitted by or on behalf of Authorized Users for the purposes set forth in this Agreement. Merchant grants GoTab a non-exclusive, worldwide, royalty-free and fully paid license during the Term (a) to use the Merchant Content as necessary for purposes of providing and improving the Services, (b) to use the Merchant trademarks, service marks, and logos as required to provide the Services, and (c) use the Merchant Content in an aggregated and anonymized form to: (i) improve the Services and GoTab’s related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose Usage Data and other statistics regarding use of the Services, provided, however, that no Merchant-only statistics will be disclosed to third parties without Merchant’s consent. The Merchant Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Merchant. GoTab shall own all rights, title and interest in and to Usage Data. All rights in and to the Merchant Content not expressly granted to GoTab in this Agreement are reserved by Merchant.
5.2 Merchant Content Warranty. Merchant represents and warrants that any Merchant Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage GoTab’s system or data; and (e) otherwise violate the rights of a third party. GoTab is not obligated to back up any Merchant Content; the Merchant is solely responsible for creating backup copies of any Merchant Content at Merchant’s sole cost and expense. Merchant agrees that any use of the GoTab Solution contrary to or in violation of the representations and warranties of Merchant in this Section 5.2 constitutes unauthorized and improper use of the GoTab Solution.
5.3 Merchant Responsibility for Data and Security. Merchant and its Authorized Users will have access to Guest Data as part of the Services and will be responsible for all changes to and/or deletions of Guest Data made by Merchant, and the security of all passwords and other Access Protocols required in order the access the GoTab Solution and any Guest Data. If Merchant receives any Guest Data that is personally identifiable information, including an individual’s first name and last name, social security number, passport number or other government-issued identification number; driver’s license number or state-issued identification card number, financial account number, unique electronic identifier or routing code, or credit or debit card number; physical or other home address; and e-mail address in connection with the Services (collectively, “PII”), then: (a) Merchant will comply (and will cause its subcontractors to comply) with all information security laws applicable to any PII obtained, used or otherwise processed by Merchant in connection with this Agreement, (b) Merchant will detect, prevent and mitigate the risks of identity theft related to any PII received in connection with this Agreement, (c) Merchant will use any PII received in connection with this Agreement for the sole purpose of fulfilling orders placed by Guests and for no other purpose, (d) if there is any (or any reasonably suspected) unauthorized access or use of any PII held or processed by Merchant or its subcontractors in connection with this Agreement (a “Data Breach”), then Merchant will immediately notify GoTab of the Data Breach and GoTab shall have the right to suspend and/or terminate this Agreement upon three (3) days’ written notice, and (e) Merchant will indemnify GoTab and its affiliates for any and all costs, expenses, damages, and liabilities associated with any such Data Breach (including investigation costs, forensic costs, damages due to negligence and breach of contract claims, fines, costs associated with notification of affected parties, and remediation costs).
Section 6. PROFESSIONAL SERVICES
Where the parties have agreed to GoTab’s provision of Professional Services, the details of such Professional Services will be set out in a Statement of Work. The SOW will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each SOW will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of an SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the SOW, as applicable, expressly states that it supersedes specific language in the Agreement.
Section 7. WARRANTIES AND DISCLAIMERS
7.1 Limited Warranty. GoTab represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Provided that Merchant notifies GoTab in writing of the breach within thirty (30) days following performance of the defective Services, specifying the breach in reasonable detail, GoTab will, as Merchant’s sole and exclusive remedy, for any breach of the foregoing, re-perform the Services which gave rise to the breach or, at GoTab’s option, refund the fees paid by Merchant for the Services which gave rise to the breach. GoTab further warrants to Merchant that the GoTab Solution will operate free from Errors during the Term, provided that such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (a) any use of the GoTab Solution not in accordance with this Agreement or as specified in the Documentation; (b) any use of the GoTab Solution in combination with other products, equipment, software or data not supplied by GoTab; or (c) any modification of the GoTab Solution by any person other than GoTab or its authorized agents. Provided that Merchant notifies GoTab in writing of any breach of the foregoing warranty during the Term, GoTab will, as Merchant’s sole and exclusive remedy, provide the support described in Section 2.2.
7.2 Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 7.1 IS MADE FOR THE BENEFIT OF MERCHANT ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS,” AND GOTAB MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. GOTAB DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE GOTAB SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE.
Section 8. LIMITATION OF LIABILITY
8.1 Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
8.2 Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES RETAINED BY GOTAB UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL GOTAB’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
8.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 8 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
Section 9. CONFIDENTIALITY
9.1 Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of GoTab.
9.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Merchant) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to GoTab). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
9.3 Exceptions. The confidentiality obligations set forth in Section 9.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
Section 10. INDEMNIFICATION
10.1 By GoTab. GoTab will defend at its expense any suit brought against Merchant, and will pay any settlement GoTab makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the GoTab Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the GoTab Solution becomes, or in GoTab’s opinion is likely to become, the subject of a claim of infringement, GoTab may, at GoTab’s option: (a) procure for Merchant the right to continue using the GoTab Solution; (b) replace the GoTab Solution with non-infringing software or services which do not materially impair the functionality of the GoTab Solution; (c) modify the GoTab Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Merchant will immediately cease all use of the GoTab Solution and Documentation. Notwithstanding the foregoing, GoTab will have no obligation under this Section 10.1 or otherwise with respect to any infringement claim based upon (i) any use of the GoTab Solution not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the GoTab Solution in combination with other products, equipment, software or data not supplied by GoTab; or (iii) any modification of the GoTab Solution by any person other than GoTab or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This Section 10.1 states the sole and exclusive remedy of Merchant and the entire liability of GoTab, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
10.2 By Merchant. Merchant will defend at its expense any suit brought against GoTab, and will pay any settlement Merchant makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, or (b) Merchant’s breach or alleged breach of Sections 5.2. This Section 10.2 states the sole and exclusive remedy of GoTab and the entire liability of Merchant, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
10.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
Section 11. TERM AND TERMINATION
11.1 Term. This Agreement will begin upon the submission of a completed Merchant Application and continue in full force and effect for the initial period specified on the GoTab Merchant Order Form, unless earlier terminated in accordance with the Agreement. Thereafter, the Initial Term will automatically renew until the last day of the current calendar month, and thereafter, will renew monthly at GoTab’s current rates until the last day of the next calendar month, unless either party gives written notice of non-renewal to the other party at least fourteen (14) days prior to the expiration of the then-current term. The Initial Term and any Renewal Terms are herein referred to as the “Term”.
11.2 Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
11.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in the Section 9; and (c) any amounts owed to GoTab under this Agreement will become immediately due and payable. Sections 1, 3.2, 3.3, 3.5, 4, 7.2, 8, 9, 10, 11.4, and 12 will survive expiration or termination of this Agreement for any reason.
Section 12. MISCELLANEOUS
12.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Merchant hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Fairfax County, Virginia for any lawsuit filed there against Merchant by GoTab arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
12.2 Export. Merchant agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from GoTab, or any products utilizing such data, in violation of the United States export laws or regulations.
12.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
12.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
12.6 Compliance with Law. Merchant will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services and Documentation.
12.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, failure of network connections, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
12.8 Independent Contractors. Merchant’s relationship to GoTab is that of an independent contractor, and neither party is an agent or partner of the other. Merchant will not have and will not represent to any third party that it has, any authority to act on behalf of GoTab.
12.9 Notices. All notices required or permitted under this agreement must be delivered in writing, if to GoTab, at 2500 Wilson Blvd. Suite 250, Arlington, VA, 22201 or by emailing firstname.lastname@example.org and if to Merchant by emailing the Merchant Point of Contact email address listed on the Cover Page, provided, however, that with respect to any notices relating to breaches of this Agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Cover Page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
12.10 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Merchant and the GoTab.