The services provided to the Customer (“you” or “Customer”) identified in the Order Form are subject to your agreement to the Order Form, and the terms and conditions of this Service Agreement(s) entered into between Daxko, LLC d/b/a CSI Software (“CSI”) and you, together with any other terms and conditions which may be incorporated by reference herein or therein (collectively, the “Agreement”), which together constitute a binding legal agreement between Customer and CSI.
If CSI makes any change to this Agreement that Customer believes materially adversely affects Customer, Customer may promptly notify CSI in writing detailing the concern. CSI agrees to work in good faith to resolve the issue. If after sixty (60) days we are unable to reach agreement regarding the modification, then at CSI’s option, Customer will either be permitted to continue use of the Services under the previous terms, or CSI will permit Customer to terminate this Agreement without penalty; provided that you shall pay all amounts due for use of the Services through the termination date. This is Customer’s only remedy and CSI’s only obligation for modification to this Agreement.
1. DESCRIPTION OF SERVICES
Pursuant to the terms and conditions of this Agreement, CSI will provide the Services described in the Order Form, including the following:
a. CSI Spectrum Services: Subject to the terms and conditions of this Agreement and the performance by Customer of its obligations under this Agreement, CSI hereby grants to Customer a non-exclusive, revocable, non-transferable, non-sublicensable license during the Term of this Agreement for the authorized users of Customer to access and use the Services for Customer’s internal business purposes at the Authorized Locations described in the Order Form. During the Term, CSI agrees to provide Customer with all updates to the Services which are generally released to CSI’s customers. Customer agrees that Customer’s obligations hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by CSI regarding future functionality or features.
b. Data Conversion: CSI will provide data conversion services necessary to convert Customer’s membership demographic and billing information from a Microsoft Excel file. Customer will be given a template to which the format of the data must adhere. Customer agrees to obtain any and all rights of access required by any third party, with respect to Customer’s data and existing software systems, in order for CSI to perform its Services under this Agreement, and agrees to provide CSI with access to Customer’s operations during normal business hours or at such other times and days as may be mutually agreed to by the parties, in order to perform data conversion under this Agreement. As part of CSI’s best practices, six (6) months after the data conversion process is completed, CSI will irrevocably destroy any copies of the legacy Customer data used in the data conversion process that are still in CSI’s possession.
c. Managed Services: CSI shall be responsible for the hosting, maintenance, and support of all CSI-hosted software and CSI-owned equipment used to perform Services. Customer acknowledges and agrees that as part of this Agreement, Customer shall arrange for, pay for, and maintain the communications lines between CSI’s hosted servers and Customer’s own equipment. Customer shall be solely responsible for establishing and maintaining the telecommunications connection of its choice at Customer’s sole cost and expense. Customer acknowledges that CSI (i) does not control communications via third party telecommunications providers and (ii) shall not be responsible for any error or inaccessibility associated with such telecommunications or any violation of law, rule or regulation applicable to transmission of data via such telecommunications.
d. Technical Support: CSI agrees to provide Customer with technical support for the Services during the Term of the Agreement as follows:
• Phone and e-mail support provided for Customer’s point of contact through a customer care center during normal business hours (7 a.m. to 7 p.m. CST Monday to Friday, exclusive of holidays). Customer’s point of contact is the liaison between CSI and Customer.
• Acknowledgement responses during normal business hours.
• System outages receive red-alert priority, which means that CSI will provide immediate assistance (24 hours per day / 7 days per week) until such outage is resolved. If Customer experiences a system outage then Customer will contact CSI at an emergency cell phone number. CSI will contact Customer regularly, providing status updates until final resolution.
• Customer agrees that from time to time CSI may perform periodic routine scheduled maintenance, provided that Customer is provided with advance notice of the same.
• Customer shall promptly provide CSI with detailed error notices describing all errors at a level of detail sufficient for CSI to resolve errors, and Customer shall assist CSI in recreating errors and resolving errors by providing CSI with any requested information or material.
e. Changes: Upon Customer’s request, CSI may (in CSI’s discretion) add or delete some portion of the Services, without requiring a separately signed agreement, provided that such changes do not increase or decrease the total fees under this Agreement by more than ten percent (10%). CSI reserves the right to modify this Agreement to correct errors and omissions, or substitute Services with reasonably equivalent Services (provided that the change will have no effect on the total fees under the Agreement).
2. TERMS & CONDITIONS OF TRANSACTION PROCESSING
a. Customer’s Obligations for Transaction Processing: Customer is solely responsible for obtaining authorization from its customers (“Card Holders”) to perform transactions. Customer is solely responsible for the accuracy and completeness of all data provided by Customer or its authorized users or Card Holders. Customer acknowledges and agrees that: (a) any transactions are between Customer and Customer’s Card Holder; (b) CSI is a third party service provider and payment facilitator for Customer, and not a party to any transaction; (c) CSI is not a buyer or seller in connection with any transaction; (d) CSI will not be responsible for and does not control any aspect of the services provided by Customer; and (e) Customer is solely responsible for disputes with Card Holders regarding payments, and CSI is not a party to and will not be responsible for any such disputes.
b. Transaction Processing Services: CSI collects and relays payment information generated in connection with payment transactions to process the transactions on behalf of Customer using the appropriate networks. CSI, through Daxko Payment Services or a third party provider, will establish a credit transaction gateway to Customer’s merchant account to provide these payment processing services to Customer. Customer acknowledges and agrees that CSI or the third party provider, as applicable, shall have the right to terminate services upon (i) request of Customer’s payment processor or financial institution with which Customer has a merchant account or bank account; (ii) a good faith belief that providing services to Customer will violate a law, regulation or rule of any governmental authority; or (iii) if Customer violates any applicable law or regulation, or if as a result of Customer’s use of the transaction gateway service, the provider or CSI becomes the subject of an investigation by a law enforcement agency or are otherwise threatened with suit or prosecution. Customer acknowledges and agrees that its use of transaction processing services under this Agreement shall be subject to additional terms and conditions, including, without limitation, the terms and conditions of the merchant processing agreements entered into by Customer related to this Agreement. Customer shall maintain valid merchant processing agreements, including for Daxko Payment Services if selected in the Order Form, with providers approved by CSI during the Term of this Agreement. Customer acknowledges that CSI is subject to certain requirements imposed by its service providers, and such service providers may modify such requirements. In the event of any such modification, CSI may modify the terms of this Agreement, provided that Customer (within ten (10) days of receiving notice of the modification) may elect, as its sole and exclusive remedy for such modification, to terminate the payment processing services provided under this Agreement with thirty
(30) days’ notice, but only if the modification materially and adversely affects Customer and CSI Is unable to rectify such situation. The foregoing does not grant Customer any rights of termination with respect to any third party agreements which may be entered into by Customer.
c. Data Transmission. Customer acknowledges that CSI is not a financial or credit reporting institution. CSI is responsible only for providing data transmission to effect or direct certain payment authorizations for Customer (or its customers) and is not responsible for the results of any credit inquiry, the operation of websites or internet service providers, financial institutions, financial processors, the availability of the internet, or for any damages or costs that Customer may suffer or incur as a result of any instructions given, actions taken or omissions made by Customer or its authorized users, Customer’s financial processor, financial institution, or internet service provider.
d. PCI DSS Compliance. CSI adheres to Payment Card Industry Data Security Standards (‘PCI DSS”). Customer agrees to adhere with PCI DSS requirements with respect to any handling of cardholder data. Customer shall be solely responsible for any and all liability related to the handling of cardholder data by Customer or its users. CSI reserves the right to temporarily suspend access to the Services in order to minimize threats to the security and to protect operational stability and security of the Services. CSI does not guarantee the security of the Services and will not be responsible for any infiltration of its security systems so long as CSI has used commercially reasonable efforts to prevent such infiltration. In no event will CSI be liable for transaction processing or other services performed by any third party.
3. TERMINATION; SUSPENSION: This Agreement may be terminated or suspended as follows:
a. Upon Termination of Merchant Processing Agreement(s): In the event that one or more of Customer’s merchant processing agreement(s), including any agreement(s) for Daxko Payment Services, is terminated with the credit card processor utilized in connection with this Agreement, CSI may, in CSI’S sole discretion, elect to terminate this Agreement, or only such portions of this Agreement which are applicable to the payment processing services, and be relieved of any and all of its obligations relating thereto upon written notice to Customer.
b. Termination for Unlawful Use: CSI reserves the right to immediately terminate Customer’s use of the Services, if CSI, in its sole discretion, determines that Customer’s use of the Services is unlawful or if Customer transmits any Prohibited Material (defined in Section 5 hereof).
c. Termination for Insolvency: This Agreement shall be deemed terminated immediately in the event that: (i) Customer files a petition in bankruptcy, makes an assignment for the benefit of its creditors, petitions for the appointment of a receiver or trustee for all or a portion of Customer’s property, or dissolves or liquidates; or (ii) a petition for bankruptcy is filed against Customer, or a receiver or trustee is appointed for all or a portion of Customer’s property; or (iii) Customer admits in writing its inability to pay debts when due. In the event of termination for insolvency of Customer, CSI may block Customer’s access to the Services, and in addition, may retain all payments made hereunder, and recover charges and costs owed by Customer, as well as any other damages CSI may have sustained because of Customer’s insolvency, including, but not limited to, attorney and collection agency fees.
d. Termination for Breach: Either party may terminate this Agreement in the event of a material breach of this Agreement by the other party, if such breach remains uncured thirty (30) days after receipt of written notice thereof from the non-breaching party; provided, however, CSI, notwithstanding such cure period, may require Customer to cease and discontinue use of the Services during the period of such material breach by Customer. No such termination shall relieve Customer’s obligation to pay fees and miscellaneous charges accrued up to the effective date of the termination. Furthermore, in the event of early termination of this Agreement (other than due to material uncured breach by CSI) prior to the expiration date of the Initial Term or any Renewal Term, Customer shall be obligated to pay to CSI 100% of the fees that CSI would have received if this Agreement had remained in effect until its scheduled expiration date (with the amount of each remaining month’s fee being equal to the average monthly fee charged during the immediately preceding six (6) month period). Such fees shall be paid within thirty (30) days after the effective date of termination. Customer agrees that (a) a breach by Customer under this Agreement is a breach under all other agreements between Customer and CSI, and a breach by Customer under any other agreement between CSI and Customer is a breach of this Agreement, and (b) all other agreements between Customer and CSI are amended to include this provision.
e. Suspension of Services: CSI may suspend Customer’s access to the Services immediately, without notice, if: (i) certain third party licenses or access to third party components of the payment processing services are terminated; (ii) Customer causes or fails to fix a security breach relating to the payment processing services; (iii) CSI reasonably believes Customer’s breach compromises the security of the payment processing services; (iv) CSI reasonably believes fraudulent transactions are being submitted on Customer’s account knowingly or negligently; (v) Customer’s financial processor or financial institution requires such suspension; (vi) Customer fails to pay any fees when due; (vii) Customer fails to upgrade to the most current software version, security updates and/or patches; or (viii) Customer fails to materially comply with this Agreement.
f. Upon any termination or expiration of this Agreement, upon request and payment of all fees due under this Agreement, CSI agrees to provide Customer with an export of Customer Data then in CSI’s possession in accordance with CSI’s data release policy and subject to payment of the then- current customer exit data export fee.
4. ADDITIONAL PAYMENT TERMS
a. On-Site Expenses: Customer will be billed for the expenses incurred in connection with the performance of any services, training, consulting or other services provided on-site at Customer’s location (including in connection with launching the Services), including the reasonable travel and per day expenses of each trainer or consultant. Pre-scheduled services which are to be performed on-site at Customer’s location may not be cancelled or re-scheduled within thirty (30) days of the beginning of such pre-scheduled services. In the event that Customer cancels or reschedules pre-scheduled on-site services within such thirty (30) day period, Customer shall be required to reimburse CSI for any pre-paid non- cancellable pre-scheduled expenses associated with the on-site services.
b. Consulting Fees: Optional consulting services are offered at the then current CSI rate. Customer will provide authorization to CSI before any optional consulting services are performed. Consulting services may include, but are not limited to, data conversion, additional training, programming, and marketing services.
c. Past Due Payments: Interest charges of one and a half percent (1.50%) per month (or the highest rate permissible under applicable law, if less) will accrue daily on all amounts not received by CSI when due. In addition, CSI shall be entitled to block Customer’s access to Services (with or without terminating this Agreement or affecting Customer’s obligation to make payments under this Agreement) if Customer is more than thirty (30) days delinquent on any payments under this Agreement or any other agreement with CSI. The obligation to pay monthly managed service fees and all other amounts due hereunder is an independent, unconditional covenant, and under no circumstances shall Customer have any right to offset its payments to CSI. If for any reason we fail to furnish you with an invoice, you are still obligated to pay in a timely manner. If any amount owed by Customer under this Agreement or any other agreement with CSI is sixty (60) or more days overdue, CSI may, without limiting CSI’s other rights and remedies, accelerate Customer’s unpaid fee obligations under this and such other agreements so that all such obligations become immediately due and payable, and suspend CSI’s Services to Customer until such amounts are paid in full.
d. Taxes: Customer shall pay any and all applicable international, federal, state, and local sales, use, value- added, excise, duty, and any other taxes, fees or duties (other than taxes based on CSI’s net income) that are assessed on or as a result of the Services. Any such taxes, fees and duties collected by CSI from Customer on behalf of a governmental agency shall not be considered a part of, a deduction from, or an offset against, payments due to CSI for the Services hereunder.
5. CUSTOMER RESPONSIBILITIES; COMPLIANCE WITH THE LAW
a. Authorized Representatives: Customer agrees that it will only allow its authorized representatives to have access to Services and that it shall be responsible for any use or misuse of Services by such persons.
b. Compliance with Law; Prohibited Material: Customer represents and warrants that Customer will comply with all laws and regulations applicable to Customer’s use of the Services, and agrees to use Services only as permitted by applicable law, including but not limited to export control laws and financial services laws and regulations. Consult with your own legal, tax, accounting or other advisor for guidance on document and data retention policies applicable to you records. CSI does not provide you with guidance on document and data retention policies applicable to your records or the Customer Data. CSI does not provide you with advice regarding the sufficiency of your document and data retention policies. The transmission of any material in violation of applicable law is prohibited. This prohibition includes, but is not limited to, the transmission of copyrighted material without permission of the copyright holder and the transmission of threatening or obscene material or trade secrets.
BOTH PARTIES AGREE NOT TO POST OR TRANSMIT ANY UNLAWFUL, HARMFUL, THREATENING, ABUSIVE, HARASSING, DEFAMATORY, VULGAR, OBSCENE, PROFANE, HATEFUL, FRAUDULENT, LIBELOUS, PORNOGRAPHIC, RACIALLY, ETHNICALLY OR OTHERWISE OBJECTIONABLE MATERIAL OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY MATERIAL WHICH ENCOURAGES CONDUCT THAT WOULD CONSTITUTE A CRIMINAL OFFENSE, VIOLATE THE RIGHTS OF OTHERS, OR OTHERWISE VIOLATE ANY APPLICABLE LOCAL, STATE, NATIONAL OR INTERNATIONAL LAW (“PROHIBITED MATERIAL”).
CSI reserves the right to terminate Customer’s use of Services, if CSI, in its sole discretion, determines that Customer’s use of Services is in violation of this Agreement, unlawful or inappropriate as described above. Notwithstanding the above, CSI has no obligation to monitor any material posted through the Services. Any liability for any such inappropriate or unlawful material posted by Customer shall be Customer’s.
The federal government and many states and local jurisdictions have enacted regulations limiting commercial telephone, text, email and fax communications, including laws regarding opt-in and opt-out required for commercial communications. Customer represents and warrants that all email addresses used in connection with the Services have been and will be properly obtained and Customer shall follow all provisions of the CAN-SPAM Act (USA), the Telephone Consumer Protection Act (USA), or all Canadian Radio-television and Telecommunications Commission (CRTC) regulations (Canada) and any other applicable laws regarding consumer communications in any applicable jurisdiction. To the extent that CSI may perform Services which involve contacting consumers on your behalf, you agree you are responsible to obtain all necessary consents and provide CSI with all consumer preference information (such as an opt-out) required to ensure that CSI does not contact consumers in violation of such regulations.
c. FTC Safeguards Rule. The Federal Trade Commission (“FTC”) Standards for Safeguarding Customer Information (16 CFR Part 314)(the “Safeguards Rule”) applies to parties considered to be financial institutions within the FTC’s jurisdiction under the Gramm-Leach-Bliley (“GLB”) Act. The Safeguards Rule, effective May 23, 2003, requires those parties to secure records and information from and about customers.
This section applies to the extent you are subject to the Safeguards Rule, you share with us your “customer Information” (as defined in the Safeguards Rule), and in circumstances in which we are a “Service- Provider” (as defined in the Safeguards Rule).
CSI will implement and maintain safeguards appropriate to protect the security, confidentiality, and integrity of your Customer Information (as defined in the Safeguards Rule). It is your responsibility to: (i) disclose to us any relevant risks you identify regarding your Customer Information; and (ii) identify the employee(s) who coordinate your information security program.
You are solely responsible for your compliance obligations under the Safeguards Rule. CSI’s provision of products and services to you does not constitute and shall not be deemed to be a guarantee that your business is in compliance with any statute or regulation. CSI’s review or approval of any of your systems, applications, processes, forms, or procedures does not constitute and shall not constitute the assumption by CSI of any responsibility or liability for compliance by you with any statute or regulation.
You agree that you and third parties acting on your behalf have no right or authority to access or audit CSI’s systems, applications, processes, procedures or practices, except to the extent specifically authorized by CSI.
If you believe CSI’s efforts to safeguard Customer Information affects you in a materially adverse manner and you promptly notify CSI in writing, stating the basis of your belief, CSI will work with you in good faith to resolve the issue. If after sixty (60) days we are unable to resolve the issue, then, at CSI’s option, we will either permit you to discontinue the affected Services without liability, or you will submit to binding arbitration as described below. You shall pay all amounts incurred and remain otherwise fully obligated for any Services up through the effective date of such discontinuance or arbitration decision. THIS IS YOUR SOLE AND EXCLUSIVE REMEDY AND CSI’S ONLY OBLIGATION UNDER THIS SECTION.
6. TITLE TO PRODUCTS AND SERVICES
All title to equipment and software licenses provided by CSI for performing the Services are the property of CSI or its licensors, and remain the property of CSI or its licensors during and after the term of this Agreement. This Agreement is a services agreement and is not intended to and will not constitute a lease or sale of real or personal property. No title, intellectual property rights or copyright in the software or in any modifications of the software shall pass to the Customer under any circumstances. The software is licensed, not sold. To the extent that Customer provides CSI with any feedback relating to the Services (including, without limitation, with respect to any software related thereto, and any feedback related to usability, performance, interactivity, bug reports and test results) (“Feedback”), CSI or its licensors (as appropriate) shall own all right, title and interest in and to such Feedback (and customer hereby makes all assignments necessary to achieve such ownership).
Except as otherwise permitted in this Agreement, Customer shall not: (i) modify, translate, or create derivative works based on the Services; (ii) frame or mirror any content contained or accessible from the Services, unless expressly authorized in writing by CSI; (iii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services; or (iv) access or modify the Services in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Services. Furthermore, unless otherwise authorized in writing by CSI, Customer agrees to access the Services only through the interface that is provided by CSI for use in accessing the Services. Customer agrees not to use any automated means, including but not limited to agents, robots, scripts, spiders, and screen scraping tools, to access, monitor, download or copy all or any part of the Services, unless CSI has provided prior written consent.
CSI acknowledges that the Customer Data belongs to Customer, and that CSI will access, copy or use the Customer Data only for authorized purposes. Customer Data” means data and information that Customer (or a user) loads, transmits to or enters into the Services, including data of Customer that the Services are configured to obtain from Customer’s servers or systems or from third parties on Customer’s behalf, but specifically excluding any Derivative Data, which Derivative Data (defined below) shall be owned by CSI. Customer represents and warrants that Customer has all rights and authority to the Customer Data to grant the rights and approvals in this Agreement, and that Customer approves and grants to CSI the non- exclusive, non-terminable, royalty-free license to access, copy, use, modify, create derivative works of, and distribute the Customer Data in connection with the following activities to which Customer consents: (i) to perform the Services under this Agreement, (ii) to diagnose, monitor and optimize the performance of the Services, (iii) to compile and aggregate statistical data provided that (a) CSI agrees to maintain as confidential and not disclose to any third party any Customer Data identifying an individual consumer (except as otherwise permitted as necessary to provide the Services), and (b) CSI will use the Customer Data solely to create analyses in aggregated or derivative form in a manner that does not permit identification of Customer, Customer’s employees, or individual consumers, and (iv) for any other access or use to which you expressly consent. Any aggregate non-identifiable data compiled or collected by CSI shall be “Derivative Data” owned by CSI under this Agreement, and not subject to the foregoing limitations. “Derivative Data” shall also include all modifications, compilations, derivative works and results from processing (including analyses, usage statistics and patterns, datasets, databases, reports, recommendations and visual representations) created or developed from Customer Data or on the basis of Customer’s use of the Services.
In the event that Customer is a U.S. government user, any software licensed in connection with the Services is provided with restricted rights: (a) If the Customer is a civilian agency, the software: (i) was developed at private expense and is existing computer software and no part was developed with government funds; (ii) is a trade secret of CSI for all purposes of the Freedom of Information Act; (iii) is a commercial item and thus, pursuant to Section 12.212 of the Federal Acquisition Regulations (FAR), the government’s (and any government agency’s) use, duplication or disclosure of the software is subject to the restrictions set forth in this Agreement; (iv) is in all respects proprietary data of CSI and all rights are reserved under the copyright laws of the United States; (b) If the Customer is part of the Department of Defense, the Software is commercial computer software (and commercial computer software documentation), and pursuant to DFAR § 227.7202, use, duplication or disclosure of the software is subject to the restrictions set forth in this Agreement. In the event any technical data are not covered by these provisions, it shall be deemed “technical data-commercial items” pursuant to DFAR § 252.227-7015(a). Any use, modification, reproduction, release, performing, displaying, or disclosing of such technical data shall be governed by the terms of DFAR § 252.227-7015(b).
7. TRADEMARK AND DOMAIN NAME RIGHTS
Customer grants to CSI and its affiliates a limited, non-exclusive license to use the name, trademarks, trade names, logos, slogans and copyrights related thereto of Customer in connection with providing the Services, and for promotional and marketing purposes related to this Agreement, provided that all such uses shall inure to Customer’s benefit. Customer shall be solely responsible for the selection, registration, payment, maintenance and defense of any domain name or trademark utilized by Customer. Customer agrees to indemnify and hold CSI and its affiliates harmless from any claims relating to or against Customer’s domain name, copyrights or trademarks, including but not limited to any claims with respect to infringement or dilution of trademarks.
8. TREATMENT OF CONFIDENTIAL INFORMATION
From time to time one party (the “Receiving Party”) may receive from the other party (the “Disclosing Party”) proprietary and confidential information (“Confidential Information”), including, without limitation, the terms and conditions of this Agreement, financial information, pricing, business plans, usernames, passwords, CSI Technology, and any information that is marked as “confidential” or should be reasonably understood to be confidential or proprietary to the Disclosing Party. The Receiving Party agrees that the Receiving Party will not disclose the Confidential Information to any third party, nor use the Confidential Information, for any purpose not permitted under this Agreement. Customer acknowledges and agrees that CSI may disclose Confidential Information to third party service providers as necessary for the performance of the Services under this Agreement. The Receiving Party agrees to use at least the same degree of care that it uses to protect the confidentiality of its own information, but in any event, no less than a reasonable degree of care. The nondisclosure obligations set forth in this paragraph shall not apply to information that the Receiving Party can document (i) is generally available to the public (other than through breach of this Agreement), or (ii) was already lawfully in the Receiving Party’s possession at the time of receipt of the information from the Disclosing Party, or (iii) was obtained by the Receiving Party from a third party without a breach by the third party of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information. “CSI Technology,” for purposes of this Agreement, means the proprietary technology of CSI, including hardware designs, algorithms, software, software tools, user interface designs, architecture, class libraries, objects, documentation, know-how, trade secrets, and any related intellectual property rights, and also including any derivatives, improvements, enhancements or extensions of any of the foregoing conceived, reduced to practice, or developed by or on behalf of CSI (including, without limitation, any Feedback), whether during the term of this Agreement or otherwise.
Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information pursuant to applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction (a “Legal Order”), provided that the Receiving Party shall first make commercially reasonable efforts to provide the Disclosing Party with (a) prompt written notice if such requirement so that Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy and (b) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. As between CSI and Customer: (i) CSI shall own all CSI Confidential Information and, except as expressly provided herein, Customer shall not have any right, title, or interest therein; and (ii) Customer shall own all Customer Confidential Information and, except as expressly provided herein, CSI shall not have any right, title, or interest therein.
9. WARRANTIES; DISCLAIMERS; LIMITATIONS OF LIABILITY
a. CSI warrants that:
(i) all software and equipment utilized by CSI in providing Services will, on the date installed and during the term of this Agreement, be in good working order and will substantially conform in all material respects to CSI’s service specifications;
(ii) all work performed by CSI in providing Services will be performed in a good and workmanlike manner;
(iii) CSI has good and valid title, or has otherwise licensed such rights as are necessary, with respect to all software and equipment utilized to provide Services; and
(iv) CSI has sufficient legal rights to provide Services to Customer.
b. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE, CSI PROVIDES, AND CUSTOMER ACCEPTS, THE SERVICES IN “AS-IS” CONDITION; AND CSI DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (STATUTORY, EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE SERVICES OR ANY PART THEREOF, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, ACCURACY, OR FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE (WHETHER OR NOT CSI KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING. CSI SHALL HAVE NO LIABILITY ARISING FROM CARD HOLDER DATA TRANSMISSION WHICH OCCURS PRIOR TO ENCRYPTION AND RECEIPT BY SERVERS OWNED OR CONTROLLED BY CSI. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CSI SHALL HAVE NO LIABILITY FOR DAMAGES RESULTING FROM FRAUD, EMBEZZELMENT, THEFT, IDENTIFY THEFT, OR INVASION OF PRIVACY BY ANY THIRD PARTY. CSI DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. CSI EXPRESSLY DISCLAIMS ANY WARRANTY AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY SERVICES OR PRODUCTS PROVIDED BY THIRD PARTIES. CSI EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN CUSTOMER WITH RESPECT TO THE SERVICES OR ANY PART THEREOF. SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO CERTAIN OF THE ABOVE EXCLUSIONS MAY NOT APPLY. TO THE EXTENT THAT THIS AGREEMENT MAY BE INTERPRETED UNDER THE LAWS OF A STATE NOT ALLOWING ANY SUCH A LIMITATION ON DAMAGES, THE FOREGOING PROVISION SHALL BE INTERPRETED TO PROVIDE THE MAXIMUM BENEFIT OF THE FOREGOING PROVISION ALLOWED BY THAT STATE’S LAWS. IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES, LOSS OF DATA, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CSI’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID FOR THE MONTH IN WHICH THE BREACH, OUTAGE OR DEFAULT OCCURRED. ALL DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE MADE ON BEHALF OF BOTH CSI AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFIALIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS.
c. In the event of any default by CSI hereunder, Customer’s sole and exclusive remedies shall be the adjustment, repair or replacement of the goods or services as deemed mutually appropriate by Customer and CSI. Customer agrees that any claim that the foregoing warranties have been materially breached or violated must be described in sufficient detail in a written notification to CSI pursuant to the notification requirement of this Agreement. Such written notification must be provided to CSI within thirty (30) days of the occurrence of the breach or violation, or else such alleged breach or violation shall be deemed immaterial and waived by Customer.
d. Certain portions of the Services provided under the Agreement may be provided by third party service providers (“Third Party Services”). Customer acknowledges that in order to receive the Third Party Services Customer may be required to agree to separate and additional terms and conditions with such third party service providers (“Third Party Agreement”) and that CSI is not responsible for the services or products of such third parties.
Except as provided below, Customer agrees to defend, indemnify, and hold harmless CSI and its directors, members, officers, employees, licensors and agents, from and against any and all claims, losses, damages, suits, fees, judgments, costs, and expenses, including attorneys’ fees, arising from (a) Customer’s breach of the terms and conditions of this Agreement, or (b) Customer’s infringement, or infringement by any of Customer’s users, of any intellectual property or other right of any person or entity, or (c) any act or omission by Customer in connection with collecting, using or disclosing Customer Data or Sensitive Information, or Customer’s failure to obtain necessary consents and permissions from consumers in compliance with Customer’s obligations under this Agreement; provided that CSI (a) gives Customer prompt written notice of any such claim, (b) permits Customer to have sole control and authority with respect to the defense or settlement of any such claim, and (c) provides Customer all reasonable cooperation, information, and assistance in connection with the defense or settlement of any such claim, at Customer’s cost and expense.
Except as provided below, CSI agrees to defend, indemnify, and hold harmless Customer and its directors, members, officers, employees, and agents, from and against any and all claims, losses, damages, suits, fees, judgments, costs, and expenses, including reasonable attorneys’ fees, arising out of any and all third party claims that the Services infringe a valid U.S. patent or copyright or misappropriate a trade secret of a third party provided that Customer (a) gives CSI written notice of any such claim within fifteen (15) days of Customer’s receipt of such claim, (b) permits CSI to have sole control and authority with respect to the defense or settlement of any such claim, and (c) provides CSI all reasonable cooperation, information, and assistance in connection with the defense or settlement of any such claim. If the Services becomes, or in CSI’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, CSI may, at its option and expense, (i) procure the right to allow Customer to continue to use the Services or (ii) modify or replace the Services or infringing portions thereof to become non-infringing, without loss of material functionality. If CSI is unable to provide one of the remedies in (i) or (ii) within forty-five (45) days of notice of the claim, CSI shall have the right to terminate this Agreement. Notwithstanding the foregoing, CSI shall have no liability or obligations with respect to any patent, copyright, or trade secret infringement claim based upon or arising out of (i) any modification or alteration to the Services not approved by CSI, (ii) any combination or use of the Services with products or services not supplied by CSI or approved in writing by CSI in advance of such combination, (iii) any patent, copyright or trade secret in which Customer or its affiliates have an interest, or (iv) use of the Services not in accordance with its documentation or outside the scope of the license granted under this Agreement. Customer agrees to defend, indemnify, and hold harmless CSI and its directors, members, officers, employees, and agents, from and against any and all claims, losses, damages, suits, fees, judgments, costs, and expenses, including reasonable attorneys’ fees, arising out of any and all third party claims enumerated in clauses (i) through (iv) above. The foregoing states the entire liability of CSI with respect to infringement of patents, copyrights, trade secrets, or other proprietary rights by the Services or any part thereof. Customer will immediately inform CSI as soon as Customer becomes aware of any threatened or actual liability claim by a third party relating to the Services.
All notices required or permitted under this Agreement shall be in writing and shall be deemed delivered when delivered in person or deposited in the United States mail, postage prepaid, or via a recognized national overnight delivery service addressed as specified in the Order Form. Such address may be changed from time to time by either party by providing written notice to the other in the manner set forth above.
a. Customer’s rights to use Services are personal to Customer, are non-exclusive, non-transferable and non-sub licensable. Customer shall not attempt to assign or transfer any rights or obligations under this Agreement without the prior written approval of CSI. Any attempt to assign this Agreement in violation of the provisions of this paragraph will be void and of no force or effect. Customer and any attempted transferee shall be jointly and severally liable to CSI for any costs or damages incurred by CSI in connection with attempted assignments not permitted by this paragraph. This Agreement shall inure to the benefit of the parties hereto and is not intended to inure to the benefit of Customer’s clients nor any other third parties.
b. Customer acknowledges that CSI has set its prices and entered into this Agreement in reliance upon the limitations and exclusions of liability, the disclaimers of warranties and damages and Customer’s indemnification obligations set forth herein and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if this Agreement is found to have failed of its essential purpose.
c. CSI’s performance hereunder shall be excused where delayed or hindered by war, riots, civil unrest, embargoes, strikes or other concealed acts of workmen, casualties, accidents, acts of nature (including flood or earthquake), computer attacks (whether by government/nation entities or otherwise), or other occurrences beyond CSI’s control. Customer agrees that CSI is not responsible or liable for acts of God or Internet blackouts and brownouts beyond the control of CSI. CSI shall notify Customer in the event of any of the foregoing occurrences. Should such occurrence continue for more than thirty (30) days, CSI or Customer may terminate this Agreement with no further obligation, except for the payment of fees incurred prior to the event giving rise to the termination.
d. Any legal action arising out of CSI’s provisioning of Services, including the failure, malfunction or defect in the Services, shall be brought within one (1) year of the occurrence or deemed waived.
e. Neither party to this Agreement will solicit for employment nor knowingly employ any then current employee of the other party either directly or indirectly through a third party during the term of this Agreement, including any renewal thereof, without the mutual agreement of the parties.
f. The Services are subject to CSI’s sunset or discontinuation policy (“Sunset Policy”) and CSI reserves the right to discontinue all support for the Services, or for any features, services or content accessible through the Services, in accordance with such Sunset Policy, which is expressly incorporated by reference herein. From time to time, CSI may change the terms and conditions of the Sunset Policy. CSI will notify Customer of any such change. For the latest version of the Sunset Policy, go to http://daxko.com/csi-sunset-policy or such other site designated by CSI. Customer’s continued use of the Services will indicate Customer’s agreement to any change in the Sunset Policy.
g. The headings used in this Agreement are for convenience only and do not affect the meaning or interpretation of this Agreement. The provisions of 2.a, 2.c, 2.d, 3 – 8, 9.b, 9.c, and 11 – 13 of this Service Agreement shall survive any termination or expiration of the Agreement.
h. Governing Law; Dispute Resolution. This Agreement and the relationship between you and CSI shall be governed by the laws of the State of Alabama, without regard to its conflict of law provisions. Any claim or dispute arising out of this Agreement, unless otherwise excluded below, shall be determined exclusively by binding arbitration to take place in Jefferson County in the State of Alabama. Such arbitration shall be conducted in accordance with the American Arbitration Association rules and before an American Arbitration Association certified Arbitrator. The arbitrator shall be mutually agreed upon by the parties. In the event that a single arbitrator cannot be agreed upon, you shall select an arbitrator, and CSI shall select an arbitrator, and these two arbitrators will select a third arbitrator. In the event that the two arbitrators selected cannot agree on a third arbitrator, the third arbitrator will be selected by a judge presiding over the circuit court in Jefferson County, Alabama. All arbitrators shall be attorneys and shall swear an oath of neutrality. The parties shall each be responsible for initial payment of fifty-percent (50%) of any arbitration fees but the losing party to the arbitration shall be responsible to reimburse the prevailing party’s costs, expenses and arbitration fees, including, without limitation, reasonable attorneys’ fees.
The Federal Arbitration Act (“FAA”), not state law, controls and applies to the arbitration of any non- excluded dispute between the parties, and shall govern all aspects of the arbitration. The outcome of any arbitration, including the award of any damages, shall be confidential. The arbitrator will not have authority to award any punitive or exemplary damages, or any penalties, relating to any dispute arbitrated or litigated. The scope of the depositions, requests for production and the extent of the parties’ obligations to respond will be governed by the Federal Rules of Civil Procedure.
Notwithstanding the foregoing, the following claims and disputes (“Excluded Disputes”) are not subject to binding arbitration: (1) any non-equitable claims or disputes in which CSI is seeking to collect past- due amounts under the Agreement with an amount in controversy less than $75,000 and (2) any claim for a temporary restraining order, injunction, specific performance and/or any other equitable relief. The parties specifically agree that non-equitable claims or disputes described in subpart (1) above shall be resolved exclusively in the court of appropriate jurisdiction in Jefferson County, Alabama and shall be governed by the rules of procedure and evidence for civil cases for the State of Alabama without reference to the choice of law principles of any other state. The parties specifically waive the right to bring such non-equitable claims or suits in any other jurisdiction and/or venue. The parties also agree that the damages awarded, if any, in any litigation conducted pursuant to this Agreement shall be determined in accordance with the state law of Alabama.
The Customer further acknowledges that a breach or threatened breach of the Agreement by the Customer or its representatives may cause irreparable harm to CSI for which monetary damages would not be an adequate remedy. As such, Customer agrees that in the event of a breach or a threatened breach by Customer or its representatives, CSI shall, in addition to any and all other rights and remedies available at law (which are not waived by the exercise of any rights hereunder), be entitled to seek a restraining order, injunction, specific performance and/or any other equitable relief available from a court of competent jurisdiction, and the parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.
The prevailing party in any Excluded Dispute shall be entitled to be reimbursed for its costs and expenses, including, without limitation, reasonable attorneys’ fees.
i. Exclusivity. During the Term, Customer agrees that Company will be the exclusive provider of the Services at all present or future locations, sites, or facilities that Customer owns or controls. Customer shall not solicit bids, quotes, or contracts another provider of the Services during the Term of this Agreement for the provision of Services to such additional locations, sites, or facilities not presently covered by this Agreement.
13. ENTIRE AGREEMENT
This Service Agreement and all order forms, schedules, attachments, and terms and conditions, including, without limitation, the Order Form, which are incorporated by reference herein, or in an applicable Order Form, collectively represent the complete agreement and understanding between CSI and Customer with respect to the subject matter herein and supersede any other written or oral agreement. The terms and conditions of this Agreement may only be modified in writing and must be signed by CSI and Customer; provided, however, that from time-to-time, CSI may update and revise this Service Agreement and such updates and revisions shall become a part of this Agreement upon CSI providing notice of the updated and revised terms to Customer.