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EXHIBIT 10.4
FORM OF GATEWAY AGREEMENT
This Agreement ("AGREEMENT") is made as of , 2001 (the
"EFFECTIVE DATE") by and between [Name of Gateway Provider]., a Delaware
corporation (["Gateway Provider"]), having offices at [address of gateway
provider], and Orbis Development, Inc. ("Orbis") having regional sales offices
at 000 Xxx Xxxxx Xxxx Xxxx. Xxxxx 000 Xxxxxx, XX 00000.
WHEREAS, [GATEWAY PROVIDER] operates an electronic payment system(s) through
which [GATEWAY PROVIDER] (i) acts as an intermediary between multiple merchants,
customers, third party processors, issuing banks and acquiring banks to
facilitate payment authorizations and settlement over the Internet, and (ii)
provides management reports, management tools, fraud controls, security and the
capability to interface easily with other computer software and web sites to
share information (collectively with the [Gateway Provider] Site (as defined
below), the "[GATEWAY PROVIDER] POS GATEWAY"); and
WHEREAS, specifically, via the [GATEWAY PROVIDER] POS Gateway, [GATEWAY
PROVIDER] provides Internet gateway transaction payment processing services that
(a) enable providers of goods and services over the Internet ("MERCHANTS") to
access multiple payment systems and to effect payment for goods and services
purchased by consumers through the Merchant; and (b) provide certain account
management tools in connection with the support of Merchants, via the web site
currently located at the URL xxxxx://xxxxxx.[Gateway Provider].com and all other
public servers within the [Gateway Provider] domain on the Internet
(collectively with the web site currently located at the URL www.[Gateway
Provider].com, the "[GATEWAY PROVIDER] SITE"); and
WHEREAS, subject to the terms and conditions of this Agreement, Orbis desires to
obtain services (as set forth in Section 3 below) and to help enable Merchants
to obtain the [GATEWAY PROVIDER] Services (as set forth in Section 3 below) from
[Gateway Provider] and to provide first level support to Merchants;
WHEREAS, subject to the terms and conditions of this Agreement, [GATEWAY
PROVIDER] desires to provide the Services to Orbis and to compensate Orbis for
the referral to [GATEWAY PROVIDER] of Merchants who execute Merchant Agreements
(as set forth in Section 2 below) and pay [Gateway Provider] for the provision
of [Gateway Provider] Services (as set forth in Section 3 below); and
WHEREAS, Orbis may execute a Merchant Agreement in its capacity as a Merchant
and pay [Gateway Provider] for the provision of [GATEWAY PROVIDER] Services (as
set forth in Section 3 below).
NOW THEREFORE, in consideration of the foregoing and the following and other
good and sufficient consideration, the parties hereto agree to the foregoing and
as follows:
1. APPOINTMENT OF ORBIS. Subject to receipt and acceptance by [Gateway
Provider] of this Agreement and completion of the Orbis Application,
attached hereto as Exhibit A, [Gateway Provider] hereby appoints Orbis
as a non-exclusive sales agent for the referral of Merchants to
[Gateway Provider] for the purpose of enabling [Gateway Provider] to
enter into Merchant Agreements (as set forth in Section 2 below) with
such Merchants pursuant to which [GATEWAY PROVIDER] will provide
Services (as set forth in Section 3 below). Orbis hereby accepts the
foregoing appointment as a sales agent for [Gateway Provider] Services
(as set forth in Section 3 below). This Agreement is not exclusive to
Orbis and [Gateway Provider] shall have the unrestricted right (i) to
sell, license, market and distribute and (ii) to grant to others the
right to sell, license, market and distribute the Services. [Gateway
Provider] may accept electronic transmission of the Orbis Agreement in
accordance with its then current policies.
2. MERCHANT AGREEMENT.
2.1 IN GENERAL. The terms and conditions for [Gateway
Provider]'s provision of the [Gateway] Services to
the Merchants is set forth on Exhibit C to this
Agreement (the "MERCHANT AGREEMENT"). Orbis agrees
that it shall obtain and provide to [Gateway
Provider] a Merchant Agreement in the form of Exhibit
C hereto properly executed by an authorized officer
of each Merchant and containing
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proper information to enable [Gateway Provider] to
contact the authorized representative of each
Merchant and to obtain such other and additional
information as [Gateway Provider] may require to
permit each Merchant to become a customer for the
[Gateway Provider] Services. [Gateway Provider] may
accept electronic transmission of Merchant Agreements
in accordance with its then current policies.
2.2 EXECUTION OF A MERCHANT AGREEMENT BY A ORBIS. Orbis
may enter into a Merchant Agreement in the capacity
of a Merchant.
3. [GATEWAY PROVIDER] OBLIGATIONS.
3.1 PROVISION OF SERVICES.
3.1.1 ORBIS SERVICES. During the Term, [Gateway Provider]
will provide certain account management tools to
Orbis in connection with support of Merchants, as
such account management tools are (i) selected by
Orbis upon set up of its account on the [Gateway
Provider] Site and (ii) made available upon Orbis'
successful log in to the [Gateway Provider] Site, as
modified by [Gateway Provider] from time to time (the
"ORBIS SERVICES").
3.1.2 [GATEWAY PROVIDER] SERVICES. Provided that the
Merchant complies with all the terms and conditions
of the Merchant Agreement, including without
limitation those provisions with respect to payment,
[Gateway Provider] agrees to use commercially
reasonable efforts to provide to Merchants the
Internet gateway transaction payment processing
services for which Orbis enrolls Merchant for receipt
in the applicable account configuration section of
the [Gateway Provider] Site, as such services are
modified from time to time (such services being the
"[GATEWAY PROVIDER] SERVICES"), in accordance with
the terms and conditions agreed by [Gateway Provider]
and Merchant in the Merchant Agreement. (As used
herein the [Gateway Provider] Services and Orbis
Services are collectively referred to as the
"SERVICES".)
3.2 ACCEPTANCE OF MERCHANTS AS CUSTOMERS. Upon each occasion of a
receipt by [Gateway Provider] of an original Merchant
Agreement that has been duly executed by Merchant, [Gateway
Provider] shall determine whether such Merchant qualifies (by
reason of standards as [Gateway Provider] may from time to
time impose) to become an [Gateway Provider] customer.
[Gateway Provider] reserves the right to reject a Merchant at
any time. In the event that [Gateway Provider] determines that
the Merchant does not qualify to become an [Gateway Provider]
customer, [Gateway Provider] shall so notify the Merchant and
shall send a copy of such correspondence to Orbis. [Gateway
Provider] may accept and initiate electronic transmissions of
communications in accordance with its then current policies.
3.3 PROVISION OF MARKETING MATERIALS. At no charge to Orbis,
[Gateway Provider] may from time to time provide marketing
materials advertising the [Gateway Provider] Services to Orbis
for distribution by Orbis to its Merchants as part of Orbis'
marketing efforts.
3.4 CHANGES TO PRICING AND SERVICES. [Gateway Provider] reserves
the right to (i) modify charges any time ([Gateway Provider]
shall use commercially reasonable efforts to provide 30 days
prior written notice of such additions, deletions or
modifications to Orbis), and (ii) add, delete or modify the
Services from time to time in its sole discretion.
4. ORBIS OBLIGATIONS.
4.1 DUTIES OF ORBIS. At all times during the Term, Orbis shall:
(a) use best efforts to market, promote and
obtain Merchant Agreements from the
Merchants for the provision by [Gateway
Provider] of the [Gateway Provider]
Services;
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(b) obtain and deliver Merchant Agreements to
[Gateway Provider] in accordance with the
provisions of Section 2;
(c) maintain adequate equipment and other
resources to appropriately demonstrate the
Services and market the Services as the
preferred method of real time, transactions
processing;
(d) place banner ads representing the Services
on Orbis' web page, if any;
(e) co-advertise service in Orbis'
correspondence, newsletter, e-mail, etc. to
existing customers; and
(f) keep [Gateway Provider] informed of any
significant information relating to the
marketing and distribution of the [Gateway
Provider] Services, including:
(i) the market conditions relating to the
[Gateway Provider] Services (including
significant inquiries from Merchants);
(ii) Orbis' activities relating to the
[Gateway Provider] Services (including
significant new inquiries from Merchants);
(iii) information regarding the existence of
new competitors;
(iv) suggestions made by Merchants or
members of Orbis sales force for new
[Gateway Provider] Services or enhancements;
and
(v) any knowledge of any infringement or
attempted infringement by third parties of
[Gateway Provider]'s trademarks or
copyrights and of any disclosures or
misappropriations of [Gateway Provider]'s
Confidential Information (described in
Section 7 hereof); and
(g) designate at least one (but no more than
two) person(s) in its employment to be the
contact person(s) ("ORBIS LIAISON(S)") to be
trained by [Gateway Provider] as the primary
person(s) responsible to train Orbis
personnel ("ORBIS PERSONNEL").
4.1.1 RESPONSIBILITIES REQUIRED BY ORBIS OF ORBIS
PERSONNEL. Orbis shall require that the
Orbis Personnel be responsible to:
(a) receive training from Orbis Liaison(s) in
connection with the Services;
(b) train and support current and new Merchants
in connection with use of the Services; and
(c) use best efforts to assist [Gateway
Provider] in collecting initial set up
information and handling associated matters
needed to promptly provide the [Gateway
Provider] Services to the Merchant,
including without limitation:
(i) facilitating the addition of HTML
or other code to the Merchants' web
pages, in accordance with the
reasonable request and procedure of
[Gateway Provider]; and
(ii) delivering interface technical
specifications to Merchant.
4.2 TECHNICAL SUPPORT. Orbis is required to provide all support to
Merchants. Only the Liaisons are authorized to contact
[Gateway Provider] for any available technical support.
4.3 PROHIBITED USE. Orbis may not attempt to, or actually:
(a) circumvent any security measure of the [Gateway
Provider] POS Gateway;
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(b) access any portion of the [Gateway Provider] POS
Gateway not expressly intended for use by Orbis, as
set forth in this Agreement;
(c) modify, copy or distribute any page (or any code or
programming therein) in the [Gateway Provider] POS
Gateway other than as expressly permitted in writing
by [Gateway Provider] (Orbis acknowledges that any
permitted modification (including of the payment
page) shall be subject to [Gateway Provider]'s final
approval);
(d) create or modify a web page that sends information to
any page of the [Gateway Provider] POS Gateway other
than as expressly permitted in writing by [Gateway
Provider]; or
(e) in any other way, with respect to or with the use of
the Services or the [Gateway Provider] POS Gateway,
engage in any activity, whether or not fraudulent or
illegal, that would violate any party's rights or
that is not expressly permitted by [Gateway Provider]
in writing.
4.4 EFFECT OF UNAUTHORIZED USE. Any attempt to use the Services
provided herein in violation of Section 4.3 above and Section
5.2.2 below may result in additional fees and charges, in
addition to any other remedies and rights of [Gateway
Provider] as set forth in this Agreement or at law, including
without limitation the payment by Orbis to [Gateway Provider]
of any lost revenues as a result of provision by Orbis of the
Services to any unauthorized entities or individuals. Orbis
acknowledges and agrees that such payment would be considered
liquidated damages and not a penalty of any kind.
4.5 REPRESENTATIONS AND WARRANTIES. Orbis represents, warrants and
covenants that Orbis will comply with all applicable federal,
state and local laws, rules and regulations and with all rules
and regulations imposed by entities having authority over
Orbis.
4.6 NO ADDITIONAL REPRESENTATIONS OR WARRANTIES. Orbis agrees that
it shall make no representation, guarantees, or warranties
regarding the [Gateway Provider] Services or Software that
have not been authorized in writing by [Gateway Provider].
Orbis agrees that it shall not claim any affiliation with
[Gateway Provider] and shall not attempt to or actually incur
any liability on behalf of [Gateway Provider] or in any way
pledge or purport to pledge the credit of [Gateway Provider].
4.7 NON-COMPETE/NO SOLICITATION - NO HIRE. Orbis acknowledges
that, as a result of this Agreement, Orbis will have access to
information that is of a confidential and proprietary nature
with respect to the provision of Orbis Services and [Gateway
Provider] Services by [Gateway Provider]. Orbis agrees that it
shall not develop or have developed directly or through a
third party, any product or service that is similar to the
Orbis Services or [Gateway Provider] Services. In addition,
Orbis agrees that it shall not employ or make any offers to
engage as an employee or subcontractor, an employee or former
employee or subcontractor of [Gateway Provider] who is or has
been associated with any of the activities related to this
Agreement.
4.8 NOTICE AND APPROVAL OF MARKETING EFFORTS. Orbis shall provide
to [Gateway Provider] advance notice of all marketing plans,
strategies, tactics and efforts regarding the [Gateway
Provider] Services, and agrees not to engage in any marketing
efforts with respect to the [Gateway Provider] Services that
have not been presented to, and approved in advance by,
[Gateway Provider]. Orbis acknowledges and agrees that
[Gateway Provider] and others shall be entitled to engage in
marketing efforts regarding the [Gateway Provider] Services.
4.9 LIMITED USE AND DISPLAY OF [GATEWAY PROVIDER] SERVICES. Orbis
shall not market, distribute or display the [Gateway Provider]
Services or any portion thereof, either directly or
indirectly, through any agent or otherwise, to any competitor
of [Gateway Provider].
4.10 EXCLUSIVITY. If Orbis elects to accept a branded site during
the Term, Orbis agrees that, in return for such privilege,
Orbis shall not market, license or sell any product or service
that is competitive with the Services at any time during the
Term.
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4.11 SECURITY. The Orbis acknowledges that the security of the
Services is dependent on the protection by the Orbis and the
Merchants of account names, logins and passwords that are
administered as part of the Services. Orbis agrees that it
will be responsible for maintaining its account name, login
and password as confidential and for any activity that occurs
as a result of Orbis enabling or permitting another person or
entity to use its password. Orbis agrees to immediately notify
[Gateway Provider] customer support at support@[Gateway
Provider].com or [Gateway Provider's telephone number] in the
event that (i) Orbis' password is lost or stolen, or (ii)
Orbis becomes aware of any unauthorized use of its password or
of any other breach of security that might affect the
Services. Orbis acknowledges and agrees that [Gateway
Provider] is not responsible for any loss or damage arising
from Orbis' or Merchants' failure to comply with the
provisions of this Section.
4.12 AGREEMENTS WITH MERCHANTS. Orbis shall not enter into any
agreement with a Merchant in connection with the Services that
is not approved in writing by [Gateway Provider].
5. LICENSE GRANTS AND LIMITATIONS.
5.1 GRANT OF SOFTWARE LICENSE BY [GATEWAY PROVIDER].
5.1.1 DISTRIBUTION OF SOFTWARE. [Gateway Provider] grants
Orbis a non-exclusive, non-assignable license with
respect to the software, in HTML or any other format
or programming, all updates and enhancements, new
releases thereof (and all related instructions,
manuals, materials, forms and other documentation)
that [Gateway Provider] provides to Orbis from time
to time, along with any updates thereto provided by
[Gateway Provider] from time to time (the "SOFTWARE")
solely to distribute the software to authorized
Merchants.
5.1.2 LIMITATIONS ON LICENSE. Orbis shall not, and shall
not cause any other party to (i) remove any of the
copyright or other [Gateway Provider] proprietary
notices from the Software; (ii) alter, modify or copy
the Software or create derivative works from the
Software; (iii) reverse engineer, decompile,
disassemble or otherwise attempt to derive source
code from the Software; (iv) license, sell, transfer,
lease or disclose the Software or any of Orbis'
rights under this Agreement, in whole or in part.
5.1.3 NO SUPPORT OBLIGATIONS. Unless otherwise agreed to by
[Gateway Provider] in writing, [Gateway Provider]
shall have no obligation to provide any changes,
maintenance, or support to Orbis or any person with
respect to the Software.
5.1.4 EXPORT CONTROLS. None of the Software or underlying
information or technology may be exported or
re-exported (A) into (or to a national or resident
of): Cuba, Iraq, Libya, Yugoslavia, North Korea,
Iran, Syria or any other country to which the U.S.
has embargoed goods; or (B) to anyone on the U.S.
Treasury Department's list of Specially Designated
Nationals or the U.S. Commerce Department's Table of
Denial Orders. Orbis agrees to the foregoing and
represents and warrants that it is not located in,
under the control of, or a national or resident of
any such country or on any such list.
5.2 GRANT OF LICENSE FOR MARKETING PURPOSES BY [GATEWAY PROVIDER].
5.2.1 [GATEWAY PROVIDER] TRADEMARKS. [Gateway Provider]
hereby grants to Orbis a non-exclusive,
non-transferable right and license to use [Gateway
Provider]'s trademarks, service marks, copyrights and
logos solely (i) in connection with advertising and
marketing directed to Merchants in the form that such
materials are provided to Orbis by [Gateway Provider]
and (ii) as approved in writing by
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[Gateway Provider] upon the written request of Orbis.
Orbis agrees that no other public use will be made of
the [Gateway Provider]'s trademarks, service marks,
copyrights or logos.
5.2.2 USE OF ORBIS' AGENTS. The parties hereby agree that
Orbis may use agents to sell the [Gateway Provider]
Services to Merchants. Orbis agrees that it shall not
directly or indirectly cause any such agent or any
other third party to receive access to any Orbis
Services or to the Orbis password or any other
materials or information in connection with the Orbis
Services provided to Orbis by [Gateway Provider].
5.2.3 GRANT OF LICENSE FOR MARKETING PURPOSES BY ORBIS.
Orbis hereby grants to [Gateway Provider] a
non-exclusive, non-transferable right and license to
use Orbis' trademarks, service marks, copyrights and
logos solely (a) for display on the Orbis' branded
site (if any) in the form that they are provided to
[Gateway Provider] by Orbis, (b) for display by
[Gateway Provider] for the purpose of indicating that
Orbis is an authorized Orbis of [Gateway Provider],
and (c) as approved in writing by Orbis upon the
written request of [Gateway Provider]. [Gateway
Provider] agrees that no other public use will be
made of the Orbis' trademarks, service marks,
copyrights or logos.
6 OWNERSHIP OF IDEAS, DATA AND SERVICES.
6.1 IDEAS, TRANSACTION DATA AND SERVICES. Subject to requirements
of all applicable laws, [Gateway Provider] shall own all
right, title and interest to the Services and any information
entered into or captured by the [Gateway Provider] POS Gateway
from any source, any aggregated data sets of, or other work
derived from, such information, and any information that
otherwise results from or is in connection with the provision
of the Services ("TRANSACTION DATA"), and any modifications,
enhancements, or derivative works arising from the provision
of the Services.
6.2 SOFTWARE. [Gateway Provider] shall retain all title, copyright
and other proprietary rights in the Software and any
derivative works thereof. Orbis does not acquire any rights,
express or implied, in the Software and derivative works other
than those specified herein. [Gateway Provider] also retains
title to all media used to supply the Software to Orbis.
6.3 ASSIGNMENT OF OWNERSHIP RIGHTS. Without limiting the
generality of Section 6.1 and Section 6.2, if and to the
extent that Orbis may be entitled to claim any ownership
interest in the Services or any ideas or concepts or materials
developed by [Gateway Provider] pursuant to this Agreement,
Orbis hereby irrevocably transfers, grants, conveys, assigns,
and relinquishes exclusively to [Gateway Provider], without
further consideration, all of the Orbis' right, title, and
interest in and to such ideas, concepts or materials, under
patent, copyright and/or trade secret law, as such exist from
and after the moment of inception. Orbis shall perform any
acts that [Gateway Provider] may reasonably request to
evidence more fully the transfer of ownership of such ideas,
concepts or materials to the fullest extent possible,
including without limitation making written assignments in
such form as may be requested by [Gateway Provider].
7 CONFIDENTIALITY.
7.1 CONFIDENTIAL INFORMATION. "CONFIDENTIAL INFORMATION" means (i)
business or technical information of either party, including,
without limitation, information relating to a party's product
plans, designs, costs, prices, finances, marketing plans,
business opportunities, personnel, research, development,
know-how or the pricing information available to its
customers; and (ii) any information designated "confidential"
or "proprietary"; (iii) Transaction Data; (iv) Software and
(v) the terms and conditions of this Agreement and any
Merchant Agreement or communication.
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7.2 CONFIDENTIALITY OBLIGATIONS. Each party agrees: (i) that it
will not use or disclose to any third person any Confidential
Information disclosed to it by any other party except as
expressly permitted in this Agreement; and (ii) that it will
take all reasonable measures to maintain the confidentiality
of all Confidential Information of the other party in its
possession or control, which measures will in no event be less
than the measures it uses to maintain the confidentiality of
its own information of similar importance.
7.3 EXCLUSIONS. This Section 7 will not prevent either party from
disclosing information that (i) is owned by such party or its
affiliates (including, with respect to [Gateway Provider], any
of the Transaction Data) or is already known by the recipient
party or its affiliates without an obligation of
confidentiality other than under this Agreement, (ii) is
publicly known or becomes publicly known through no
unauthorized act of the recipient party, (iii) is rightfully
received from a third party, provided that the source is not
bound by a confidentiality agreement, or (iv) is independently
developed by employees of a party or an affiliate of a party
without use of the other party's Confidential Information. If
Confidential Information is required to be disclosed pursuant
to a requirement of a governmental authority, such
Confidential Information may be disclosed pursuant to such
requirement so long as the party required to disclose the
Confidential Information, to the extent possible, (a) provides
the other party with timely prior notice of such requirement
and coordinates with such other party in an effort to limit
the nature and scope of such required disclosure and (b) uses
commercially reasonable efforts to ensure that, within
applicable law, such Confidential Information will not be
further disclosed.
1.4 NO LICENSE. Nothing contained in this Section 7 will be construed
as obligating a party to disclose its Confidential Information to
any other party, or as granting to or conferring on a party,
expressly or implied, any patent, copyright, trademark, trade name,
trade secret, or other intellectual property rights or any license
to the Confidential Information of the other party.
1.4 LOSS OF CONFIDENTIAL INFORMATION. In the event of any breach by the
recipient party of this Section 7 that results in a disclosure or
loss of, or inability to account for, any Confidential Information
of the furnishing party, the receiving party shall promptly, at its
own expense: (i) notify the furnishing party in writing; (ii) take
such commercially reasonable actions as may be necessary or
reasonably requested by the furnishing party to minimize the
breach; and (iii) cooperate in all reasonable respects with the
furnishing party to minimize the breach and any damage resulting
therefrom.
8 SAFEGUARDING OF DATA.
8.1 GENERALLY. As between Orbis on the one hand, and [Gateway
Provider] on the other hand, information relating to Merchants
or their respective affiliates or customers, whether or not
marked "confidential" and whether disclosed in tangible or in
intangible (e.g., oral or visual) form, including, without
limitation, all Transaction Data, is Confidential Information
of [Gateway Provider] (regardless of whether Orbis also
executes a Merchant Agreement). Subject to the provisions of
Section 7, Orbis shall have access to and may make use of
Transaction Data to the extent reasonably necessary to verify
payment and provide service to its Merchants and as the
Merchant otherwise may expressly authorize and not for any
other purpose. Upon expiration or termination of this
Agreement for any reason, or upon [Gateway Provider]'s
request, Orbis shall promptly return to [Gateway Provider] all
of the Transaction Data in Orbis' possession, including backup
and archival copies (and shall destroy any electronic copies
of the Transaction Data that it may have, in whatever form),
except to the extent that Orbis is lawfully required to
maintain such information.
8.2 SAFEGUARDING OF DATA. Orbis shall maintain appropriate
safeguards, consistent with prevailing industry standards,
against the destruction, inappropriate disclosure (including
display of the Transaction Data on a non-secure browser),
wrongful access or use, loss or alteration of the Transaction
Data in its possession, but in no event less than reasonable
safeguards.
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9. FEES; PAYMENT. Fees are as set forth on Exhibit B, as such Exhibit B is
modified from time to time by [Gateway Provider] with thirty (30) days'
notice to Orbis.
9.1 METHODOLOGY. [Gateway Provider] will invoice and may collect
amounts due only from the Orbis, except as otherwise set forth
in Section 9.3. Orbis shall pay to [Gateway Provider] all
amounts invoiced by [Gateway Provider] as set forth in this
Section 9.
9.2 METHOD OF PAYMENT TO [GATEWAY PROVIDER]. [Gateway Provider]
will invoice Orbis by Internet email or other electronic means
as agreed by the parties by the 3rd of the month for amounts
due and any costs resulting from non-payment by Orbis of any
amounts due hereunder. Orbis agrees that, on or after the 10th
of each month during the term of this Agreement, [Gateway
Provider] may use (i) an ACH debit or (ii) the Orbis credit
card for the collection of payment for amounts due.
9.3 NON-PAYMENT BY ORBIS. Orbis will be considered in breach of
this Agreement if payment of any amounts due hereunder is not
received by [Gateway Provider] by the 10th of each month. In
such event, Orbis agrees [Gateway Provider] may invoice, and
collect fees due directly from, Merchants.
10. TERM AND TERMINATION; EQUITABLE RELIEF.
10.1 TERMINATION BY EITHER PARTY. Either party may terminate this
Agreement for any reason, or for no reason, upon 30 days prior
written notice.
10.2 MATERIAL DEFAULT. Notwithstanding the provisions of Section
10.1, in the event that Orbis has failed to pay any amount
when due or is in breach or default of any other material
obligation set forth in this Agreement, [Gateway Provider]
may:
(i) terminate this Agreement if such breach remains
uncured for a period of 5 days after such notice,
provided, however, that if Orbis is in breach of
Sections 4.3, 5.1.2, 5.2.2 or 7, [Gateway Provider]
shall have the right to terminate this Agreement
immediately; and
(ii) exercise any right or remedy available to it at law
or in equity.
10.3 OBJECTIONABLE PRACTICES. Notwithstanding the provisions of
Section 10.1, [Gateway Provider] reserves the right to monitor
the practices of Orbis to determine, in the sole discretion of
[Gateway Provider], if the practices are detrimental to or
inconsistent with the achievement of [Gateway Provider]'s
business objectives and overall marketing strategy, and, if
[Gateway Provider] makes such a determination, [Gateway
Provider] may terminate this Agreement at any time by
providing 5 days' prior written notice to Orbis.
10.4 EFFECT OF TERMINATION. UPON TERMINATION OF THIS AGREEMENT,
ORBIS WILL CEASE USING ANY OF THE SERVICES, AND WILL ALSO
CEASE USING AND WILL RETURN OR DESTROY, ALL COPIES OF THE
SOFTWARE IN ORBIS' POSSESSION. ORBIS' OBLIGATION TO PAY
AMOUNTS FOR [GATEWAY PROVIDER] SERVICES RECEIVED HEREUNDER
SHALL SURVIVE TERMINATION OF THIS AGREEMENT FOR ANY REASON.
10.5 EQUITABLE RELIEF. NOTWITHSTANDING ANY PROVISION HEREIN TO THE
CONTRARY, ORBIS UNDERSTANDS THAT IN THE EVENT OF ITS BREACH OR
THREATENED BREACH OF ANY OF SECTIONS 4.3, 5.1.2, 5.2.2, OR 7,
[GATEWAY PROVIDER] WILL NOT HAVE A SUFFICIENT REMEDY AT LAW IN
DAMAGES, AND ACCORDINGLY SHALL BE ENTITLED TO INJUNCTIVE
RELIEF, AND NO SPECIFIC LEGAL OR EQUITABLE REMEDY SET FORTH
HEREIN SHALL BE CONSTRUED AS A WAIVER OF ANY LEGAL OR
EQUITABLE REMEDY AVAILABLE TO [GATEWAY PROVIDER] IN THE EVENT
OF A BREACH OR THREATENED BREACH OF SUCH SECTIONS BY ORBIS.
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11. LIMITATION OF WARRATIES; LIMITATION OF LIABILITY.
11.1 LIMITATION OF WARRANTIES. THE USE OF THE SERVICES AND SOFTWARE
IS SOLELY AT ORBIS' OWN RISK. THE SERVICES AND SOFTWARE ARE
PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. [GATEWAY
PROVIDER] EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH
RESPECT TO THE SERVICES AND SOFTWARE, WHETHER EXPRESS OR
IMPLIED INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
[GATEWAY PROVIDER] MAKES NO WARRANTY THAT THE SERVICES OR
SOFTWARE WILL MEET ORBIS' REQUIREMENTS, OR WILL BE
UNINTERRUPTED, TIMELY, SECURE, CURRENT, ACCURATE, COMPLETE OR
ERROR-FREE OR THAT THE RESULTS THAT MAY BE OBTAINED BY USE OF
THE SERVICES AND SOFTWARE WILL BE ACCURATE OR RELIABLE. ORBIS
UNDERSTANDS AND ACKNOWLEDGES THAT ORBIS' SOLE AND EXCLUSIVE
REMEDY WITH RESPECT TO ANY DEFECT IN OR DISSATISFACTION WITH
THE SERVICES AND SOFTWARE IS TO CEASE TO USE THE SERVICES OR
SOFTWARE.
11.2 LIMITATION OF LIABILITY. ORBIS EXPRESSLY UNDERSTANDS AND
AGREES THAT [GATEWAY PROVIDER] SHALL NOT BE LIABLE FOR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR
EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR
LOSS OF PROFITS, GOODWILL, USE, DATA LOSS OR CORRUPTION,
STOLEN OR MISUSED PASSWORDS, OR BREACHES IN SYSTEM SECURITY,
OR OTHER LOSSES (EVEN IF [GATEWAY PROVIDER] HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (I) THE
USE OF, OR INABILITY TO USE, THE SERVICES OR SOFTWARE, (II)
THE COST OF PROCUREMENT OF ANY SUBSTITUTE PRODUCTS AND/OR
SERVICES AND/OR SOFTWARE RESULTING FROM ANY PRODUCTS, DATA,
INFORMATION OR SERVICES OBTAINED OR WHICH ORBIS WAS UNABLE TO
OBTAIN OR TRANSACTIONS EFFECTED OR FAILED TO BE EFFECTED,
(III) ANY LINK PROVIDED IN CONNECTION WITH THE SERVICES OR
SOFTWARE, (IV) ANY UNAUTHORIZED ACCESS TO TRANSACTION DATA, OR
(V) ANY MATTER OTHERWISE RELATED TO ORBIS' OR ANY MERCHANT'S
USE OF THE [GATEWAY PROVIDER] SITE OR THE SERVICES OR
SOFTWARE. ORBIS AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY WITH
RESPECT TO THE SERVICES AND SOFTWARE IS TO CEASE TO USE THE
SERVICES OR SOFTWARE.
12. INDEMNIFICATION. Each of the parties agrees to indemnify, hold harmless
and defend the other party and its affiliates and their respective
officers, directors, shareholders, employees, and agents against any
third party claim or action brought against such other party or any of
its affiliates, and its respective officers, directors, shareholders,
employees, and agents, relating to or arising out of (a) any action for
intellectual property infringement relating to acts and/or materials
supplied or approved by the other party, (b) any claim of fraudulent,
misleading or deceptive advertising based upon advertising materials or
content supplied or approved by the other party with respect to such
party's products or services and (c) any breach of any representation
and warranty contained in Section 4. THE PROVISIONS OF SUBSECTIONS (A)
AND (B) OF THIS SECTION 12 SET FORTH THE SOLE AND EXCLUSIVE REMEDY OF
THE INDEMNITEES, AND THE ENTIRE OBLIGATION AND LIABILITY OF THE
INDEMNITOR, AS TO ANY INFRINGEMENT CLAIMS IN CONNECTION WITH THIS
AGREEMENT.
13. GENERAL PROVISIONS.
13.1 FORCE MAJEURE. [Gateway Provider] shall not be liable for any
delay or failure due to acts of God, natural disaster, labor
shortages or disputes, changes in law, riots, war, epidemics,
acts or omissions of vendors or suppliers, transportation,
communication or energy difficulties, disruptions, delays,
suspensions or terminations or other occurrences which are
beyond [Gateway Provider]'s reasonable control.
13.2 GENERAL PRACTICES REGARDING STORAGE. Orbis understands and
agrees that [Gateway Provider] may from time to time establish
and revise practices and limitations concerning
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10
Orbis' use of the Services. Orbis agrees that [Gateway
Provider] shall have no liability for the deletion or failure
to store any communications or other content maintained on the
site used in connection with the provision of the Services or
transmitted using the Services.
13.3 NO WAIVER. The delay or omission by a party to exercise or
enforce any right or power of any provision of this Agreement
shall not be construed as a waiver or relinquishment to any
extent of such party's right to assert or rely upon any such
provision or right in that or any other instance. A waiver by
a party hereto of any of the covenants to be performed by any
other or any breach thereof shall not be construed to be a
waiver of any succeeding breach thereof or of any other
covenant herein contained.
13.4 ENTIRE AGREEMENT. This Agreement and the exhibits hereto,
together constitute the complete and exclusive agreement
between the parties hereto, and supersede any and all prior
agreements of the parties with respect to the subject matter
hereof, unless Orbis also enters into a Merchant Agreement
with [Gateway Provider], in which case both the Merchant
Agreement and this Agreement shall be effective and
enforceable. This Agreement may only be modified, or any
rights under it waived, by a written document executed by the
parties. The foregoing provisions of this Section 13.4 shall
not limit [Gateway Provider]'s right to modify Exhibit B with
thirty (30) days' notice to Orbis as set forth in Article 9.
13.5 PUBLICITY. Except as required by law or provided in this
Agreement, no party will make, directly or indirectly, any
public comment, statement, press release or other announcement
or communication relating to the terms and conditions of this
Agreement without the prior written approval of all other
parties. If a party is required by law to make any such
disclosure, it first shall provide notice to the other party
of the content of the proposed disclosure, the reason(s) that
such disclosure is required by law, and the time and place
that the disclosure will be made. Notwithstanding the
foregoing provisions, [Gateway Provider] shall have the right
to list Orbis on the [Gateway Provider] Site or in [Gateway
Provider] marketing materials as a customer of [Gateway
Provider].
13.6 ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Agreement shall be
binding on the parties hereto and their respective successors
and permitted assigns. Orbis shall not assign, sell, trade,
cause to be assumed, or otherwise transfer this Agreement or
any rights granted to Orbis herein without the prior written
consent of [Gateway Provider]. For the purposes of this
Section 13.6, any assignment by operation of law, under an
order of any court or pursuant to any plan of merger,
consolidation or liquidation shall be deemed an assignment for
which prior consent is required, and any assignment made
without such consent shall be void and of no effect as between
the parties.
13.7 LIMITATIONS; GOVERNING LAW. Merchant agrees that any cause of
action arising out of or relating to this Agreement must
commence within one (1) year after the cause of action arose;
otherwise, such cause of action is permanently barred. This
Agreement will be governed by and construed in accordance with
the laws of the State of Illinois without regard to or
application of conflicts of law rules or principles. The
parties each consent to exclusive jurisdiction of the state
and federal courts sitting in Xxxx County, Illinois.
A NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed given if sent by
prepaid registered or certified United States mail, return
receipt requested, overnight mail with a nationally recognized
overnight mail courier, or sent by facsimile or similar
communication, and confirmed by such mail, postage prepaid,
addressed to another party at the address shown below or at
such other address for which such party gives notice
hereunder. In the case of notice from [Gateway Provider] to
Orbis, the parties agree that, except in the case of
termination of this Agreement, [Gateway Provider] may, in its
sole discretion, provide notice by electronic means (including
without limitation, by e-mail). Notices will be deemed given 5
business days after deposit in the U.S. Mail, two business
days after deposit with an overnight mail courier, or when
confirmation of receipt is obtained if sent by facsimile or
similar communication, or if by personal delivery, when
received, as applicable:
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11
[GATEWAY PROVIDER]: WITH A COPY TO:
ORBIS: WITH A COPY TO:
____________________________________ ____________________________________
____________________________________
13.9 NO AGENCY. The parties are independent contractors and will
have no power or authority to assume or create any obligation
or responsibility on behalf of each other, except as expressly
provided herein. This Agreement will not be construed to
create or imply any partnership, agency or joint venture.
13.10 INTEREST. Any payment due to [Gateway Provider] under this
Agreement, which is not paid when due, shall accrue interest
at a rate equal to 1.5% per month or the highest amount
allowed by law.
13.11 SEVERABILITY. If for any reason a court of competent
jurisdiction finds any provision or portion of this Agreement
to be unenforceable, that provision of the Agreement will be
enforced to the maximum extent permissible so as to effect the
intent of the parties, and the remainder of this Agreement
will continue in full force and effect.
13.12 SURVIVAL. Sections 4.3, 4.4, 4.5, 4.7, 6, 7, 8, 10, 11 and 12
and this Section 13 shall survive termination or expiration of
this Agreement for any reason.
13.13 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
13.14 HEADINGS. Section headings are included for convenience of
reference only and do not describe the sections to which they
relate.
13.15 EFFECTIVE. This Agreement shall not be enforceable against
[Gateway Provider] until signed by an authorized [Gateway
Provider] representative.
IN WITNESS WHEREOF, the undersigned duly authorized representatives of the
parties executed this Agreement as of the Effective Date.
[NAME OF GATEWAY PROVIDER}. ORBIS DEVELOPMENT, INC.
NAME:
NAME: _______________________________________
TITLE: CHIEF EXECUTIVE OFFICER TITLE: ________________________________________
DATE: ________________________________________ DATE: ________________________________________
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12
EXHIBIT C
MERCHANT APPLICATION
[NAME OF GATEWAY PROVIDER}.
MERCHANT GATEWAY PROCESSING AGREEMENT
This Merchant Gateway Processing Agreement (this "Agreement") is made
by and between [Name of Gateway Provider], a Delaware corporation ("Provider"),
having offices [address of Gateway Provider], and
________________________________________________ ("Merchant"), having offices at
______________________________________________________________________________.
In consideration of the premises set forth herein, Provider and Merchant hereby
agree as follows:
1 DEFINITIONS.
a CONFIDENTIAL INFORMATION. "Confidential Information" means (i)
business or technical information or materials of Provider,
including, without limitation, information relating to Provider's
product plans, designs, costs, prices, finances, marketing plans,
business opportunities, personnel, research, development, know-how
or the pricing information available to Provider's customers; (ii)
any information designated "confidential" or "proprietary"; (iii)
Transaction Data; (iv) Software; and (v) the terms and conditions
of this Agreement or any other communication.
a CUSTOMER. "Customer" means any customer, client, member or entity
that directly purchases goods or services from Merchant.
a PROVIDER POS GATEWAY. "Provider POS Gateway" means the electronic
payment system(s) through which Provider (i) acts as an
intermediary between multiple merchants, customers, third party
processors, issuing banks and acquiring banks to facilitate payment
authorizations and settlement over the Internet, and (ii) provides
management reports, management tools, fraud controls, security and
the capability to interface easily with other computer software and
web sites to share information, collectively with the Provider
Site.
a PROVIDER SITE. "Provider Site" means collectively the web site
located at the URL xxxxx://xxxxxx.[Gateway Provider].com and the
web site located at the URL www.[Gateway Provider].com and all
other public servers within the Provider domain on the Internet.
a ORBIS. "Orbis" means the entity that enrolls Merchant for receipt
of Internet gateway transaction payment processing services in the
applicable account configuration section of the Provider Site.
a SERVICES. "Services" means the Internet gateway transaction payment
processing services for which Orbis enrolls Merchant for receipt in
the applicable account configuration section of the Provider Site,
as such services are modified from time to time.
a SOFTWARE. "Software" means the software in HTML or any other format
or programming, all updates and enhancements, and new releases
thereof (and all related instructions, manuals, materials, forms
and other documentation) that Provider or Orbis provides to
Merchant from time to time, along with any updates thereto.
a TRANSACTION DATA. "Transaction Data" means any information entered
into or captured by the POS Gateway from any source, any aggregated
data sets of, or other work derived from, such information, and any
information that otherwise results from or is in connection with
the provision of the Services.
1 SERVICES. On the terms and conditions set forth in this Agreement, Provider
agrees to provide the Services. Provider reserves the right to add, delete
or modify the Services from time to time in its sole discretion.
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13
1 MERCHANT OBLIGATIONS.
a MERCHANT APPLICATION. Merchant shall complete the Merchant
Application, attached hereto as Exhibit A.
i APPLICATION CONFIRMATION. From time to time, Merchant
shall confirm the accuracy of the Merchant application
information that has been provided by Merchant and Orbis,
in accordance with the reasonable request and procedure
of Provider.
ii VERIFICATION OF MERCHANT INFORMATION. Merchant hereby
authorizes Provider to investigate and verify the
information herein and the information concerning
Merchant provided by Merchant or Orbis. For this purpose,
Provider may utilize credit bureau or reporting agencies
or other entities, including agents of Provider.
a MERCHANT USE OF SERVICES.
i MERCHANT'S RIGHTS OF USE. Merchant understands that
Merchant has the non-exclusive, non-transferable right to
use the Services only to process orders of the Customers
and that Merchant may not use the Services on behalf of
any other entity or individual.
ii PROHIBITED USE. Merchant may not attempt to, or actually:
A circumvent any security measure of the Provider
POS Gateway;
A access any portion of the Provider POS Gateway
not expressly intended for use by Merchant, as
set forth in this Agreement;
B modify, copy or distribute any page (or any code
or programming therein) in the Provider POS
Gateway other than as expressly permitted in
writing by Provider (Merchant acknowledges that
any permitted modification (including of the
payment page) shall be subject to Provider's
final approval);
A create or modify a web page that sends
information to any page of the Provider POS
Gateway other than as expressly permitted in
writing by Provider; or
A in any other way, with respect to or with the
use of the Services or the Provider POS Gateway,
engage in any activity, whether or not
fraudulent or illegal, activity or any activity
that would violate any party's rights or that is
not expressly permitted by Provider in writing.
iii EFFECT OF UNAUTHORIZED USE. Any attempt to use the
Services provided herein in violation of clauses (i) and
(ii) above may result in additional fees and charges, in
addition to any other remedies and rights of Provider as
set forth in this Agreement or at law, including without
limitation the payment by Merchant to Provider of any
lost revenues as a result of provision by Merchant of the
Services to any unauthorized entities or individuals.
Merchant acknowledges and agrees that such payment would
be considered liquidated damages and not a penalty of any
kind.
a FEES AND PAYMENT.
i FEES. Merchant shall pay Orbis the amounts that are
required by any agreement between Orbis and Merchant;
provided, however, that if Orbis does not timely provide
to Provider such portion of such amounts that is required
by Provider, Merchant shall pay Provider the applicable
amounts as set forth in Provider's Orbis pricing, as
modified by Provider from time to time. Orbis and (if
applicable pursuant to the prior sentence) Provider
reserve the right to modify fees and charges from time to
time in its sole discretion and shall use commercially
reasonable efforts to provide 30 days prior written
notice to Merchant.
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14
ii PAYMENT.
A METHOD OF PAYMENT. Merchant agrees that, on the
first of each month during the term of this
Agreement, Orbis, or as applicable Provider, may
use (i) an ACH debit or (ii) the Merchant credit
card for the collection of payment for amounts
due.
A FAILURE TO TIMELY PAY; REACTIVATION. If amounts
due have not been paid to Orbis or Provider by
the first business day following the 10th day of
the month, Merchant will be deemed in default
and (i) Merchant will incur a $10 collection
charge and (ii) the Services will be
disconnected. The Services may be restored upon
Merchant's payment in full of all past due and
collection charges and fees, plus interest
accruing at a rate equal to 1.5% per month or
the highest amount allowed by law (whichever is
higher), in addition to a $25 reactivation fee.
Merchant agrees to pay all costs and expenses of
whatever nature, including attorneys' fees and
other legal expenses, incurred by or on behalf
of Orbis or Provider in connection with the
collection of any unpaid charges and fees.
a SECURITY. The Merchant acknowledges that the security of the
Services is dependent on the protection by the Merchant of its
account name, login and password that are administered as part of
the Services. Merchant agrees that it will be responsible for
maintaining its account name, login and password as confidential
and for any activity that occurs as a result of Merchant enabling
or permitting another person or entity to use its password.
Merchant agrees to immediately notify Provider customer support at
support@[Gateway Provider].com or 847-490-7980 in the event that
(i) Merchant's password is lost or stolen, or (ii) Merchant becomes
aware of any unauthorized use of its password or of any other
breach of security that might affect the Services. Merchant
acknowledges and agrees that Provider is not responsible for any
loss or damage arising from Merchant's failure to comply with the
provisions of this Section.
a NON-COMPETE. Merchant acknowledges that, as a result of this
Agreement, Merchant will have access to information that is of a
confidential and proprietary nature with respect to the provision
of Services. Merchant agrees that it shall not develop or have
developed directly or through a third party, and shall not directly
or indirectly market, license or sell, any product or service that
is similar to or competitive with the Services at any time during
the term of this Agreement and for a period of two (2) years after
the expiration or termination of this Agreement.
1 LICENSE GRANTS AND LIMITATIONS.
a USE OF SOFTWARE.
i GRANT OF LICENSE. Subject to the terms and conditions set
forth herein, including but not limited to Section 3(c),
Provider hereby grants to Merchant a non-exclusive,
non-assignable license to use the Software solely for the
purposes expressly permitted in writing by Provider (the
"Authorized Usage"). Merchant does not acquire any
rights, express or implied, in the Software, other than
those specified in this License.
ii LIMITATIONS ON LICENSE. Merchant shall not, and shall not
cause any other party to (i) remove any of the copyright
or other Provider proprietary notices from the Software;
(ii) alter, modify or copy the Software or create
derivative works from the Software other than as
expressly described in the documentation of such
Software; (iii) reverse engineer, decompile, disassemble
or otherwise attempt to derive source code from the
Software; (iv) license, sell, transfer, lease or disclose
the Software or any of Merchant's rights under this
Agreement, in whole or in part.
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15
iii NO SUPPORT OBLIGATIONS. Unless otherwise agreed to by
Provider in writing, Provider shall have no obligation to
provide any changes, maintenance, or support to Merchant
or any person with respect to the Software.
v EXPORT CONTROLS. None of the Software or underlying
information or technology may be exported or re-exported
(A) into (or to a national or resident of): Cuba, Iraq,
Libya, Yugoslavia, North Korea, Iran, Syria or any other
country to which the U.S. has embargoed goods; or (B) to
anyone on the U.S. Treasury Department's list of
Specially Designated Nationals or the U.S. Commerce
Department's Table of Denial Orders. Merchant agrees to
the foregoing and represents and warrants that it is not
located in, under the control of, or a national or
resident of any such country or on any such list.
a LICENSE TO USE MERCHANT TRADEMARKS. Merchant hereby grants to
Provider a non-exclusive, non-transferable right and license to use
Merchant's trademarks, service marks, copyrights and logos in
connection with the set-up of Version 2 of the Payment Form as
found on the Provider POS Gateway and in connection with the use of
the Services by Merchant. Provider agrees that no other public use
will be made of Merchant's trademarks, service marks, copyrights or
logos.
1 SUPPORT. Merchant acknowledges and agrees that Orbis will provide customer
support to Merchant and that Provider shall not be responsible for providing
customer support to Merchant. Merchant shall refer all of its customer
support requests to Orbis.
1 OWNERSHIP.
a IDEAS, TRANSACTION DATA AND SERVICES. Subject to requirements of
all applicable laws, Provider shall own all right, title and
interest to the Services, the Transaction Data and any
modifications, enhancements, or derivative works arising from the
provision of the Services; provided, however, that to the extent
that Provider has obtained, solely under this Agreement, personally
identifying information of either Merchant or any customer of
Merchant, Provider shall not sell such information to any third
party.
a SOFTWARE. Provider shall retain all title, copyright and other
proprietary rights in the Software and any derivative works
thereof. Merchant does not acquire any rights, express or implied,
in the Software or such derivative works other than those specified
herein. Provider also retains title to all media used to supply the
Software to Merchant.
a ASSIGNMENT OF OWNERSHIP RIGHTS. Without limiting the generality of
Section 6(a) and Section 6(b), if and to the extent that Merchant
may be entitled to claim any ownership interest in the Services or
any ideas or concepts or materials developed by Provider pursuant
to this Agreement, Merchant hereby irrevocably transfers, grants,
conveys, assigns, and relinquishes exclusively to Provider, without
further consideration, all of the Merchant's right, title, and
interest in and to such ideas or concepts or materials, under
patent, copyright and/or trade secret law, as such exist from and
after the moment of inception. Merchant shall perform any acts that
Provider may reasonably request to evidence more fully the transfer
of ownership of such ideas or concepts or materials to the fullest
extent possible, including without limitation, making written
assignments in such form as may be requested by Provider.
1 SAFEGUARDING OF DATA.
a GENERALLY. As between Merchant on the one hand, and Provider on the
other hand, information relating to Customers, whether or not
marked "confidential" and whether disclosed in tangible or in
intangible (e.g., oral or visual) form, including, without
limitation, all Transaction Data, is Confidential Information of
Provider. Subject to the provisions of Section 9, Merchant shall
have access to and may make use of Transaction Data to the extent
reasonably necessary to verify payment and provide service to its
Customers and as the Customer otherwise may expressly authorize and
not for any other purpose. Upon expiration or termination of this
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16
Agreement for any reason, or upon Provider's request, Merchant
shall promptly return to Provider all of the Transaction Data in
Merchant's possession, including backup and archival copies (and
shall destroy any electronic copies of the Transaction Data that it
may have, in whatever form), except to the extent that Merchant is
lawfully required to maintain such information.
a SAFEGUARDING OF DATA. Merchant shall maintain appropriate
safeguards, consistent with prevailing industry standards, against
the destruction, inappropriate disclosure (including display of the
Transaction Data on a non-secure browser), wrongful access or use,
loss or alteration of the Transaction Data in its possession, but
in no event less than reasonable safeguards.
1 MERCHANT WARRANTIES. Merchant makes the following representations and
warranties to Provider:
a Statements made by Merchant in this Agreement, and all statements
in any other document relating to the subject matter hereof, by
Merchant or on Merchant's behalf, are true, accurate and complete
in all material respects.
a Merchant is duly licensed to conduct business under the laws of any
state, county and city in which Merchant is located.
a Merchant and Customer use of the Services and Software shall be
only for lawful purposes and shall not violate any federal, state,
or local laws.
2 CONFIDENTIALITY.
a CONFIDENTIALITY OBLIGATIONS. Merchant agrees: (i) that it will not
use or disclose to any third person any Confidential Information
disclosed to it by any other party except as expressly permitted in
this Agreement; and (ii) that it will take all reasonable measures
to maintain the confidentiality of all Confidential Information in
its possession or control, which measures will in no event be less
than the measures Merchant uses to maintain the confidentiality of
its own information of similar importance.
a NO LICENSE. Nothing contained in this Section 9 will be construed
as obligating Provider to disclose its Confidential Information to
any other party, or as granting to or conferring on Merchant,
expressly or implied, any patent, copyright, trademark, trade name,
trade secret, or other intellectual property rights or any license
to the Confidential Information of Provider.
a LOSS OF CONFIDENTIAL INFORMATION. In the event of any breach by
Merchant of this Section 9 that results in a disclosure or loss of,
or inability to account for, any Confidential Information, the
Merchant shall promptly, at its own expense: (i) notify Provider in
writing; (ii) take such commercially reasonable actions as may be
necessary or reasonably requested by Provider to minimize the
breach; and (iii) cooperate in all reasonable respects with
Provider to minimize the breach and any damage resulting therefrom.
1 INDEMNIFICATION; INFRINGEMENT REMEDIES.
a MERCHANT INDEMNIFICATION. Merchant agrees to indemnify, hold
harmless, protect and defend Provider and its affiliates and their
officers, directors, shareholders, employees, and agents
(individually and collectively, "Indemnitee") against any claim,
action, loss, damages, demands or liability, including without
limitation attorneys' fees, brought against Indemnitee, in any way
relating to or arising out of:
i any action for intellectual property infringement
relating to acts and/or information or content supplied
or approved by Merchant and its affiliates and their
officers, directors, shareholders, employees, and agents
(individually and collectively, "Indemnitor");
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17
ii any breach of this Agreement, including but not limited
to any breach of any representation and warranty
contained in Section 8 by Merchant;
iii any negligent, fraudulent, willful, or intentional acts
or omissions of Indemnitor;
iv any claim that Indemnitor violated any law, rule or
regulation;
v any failure of Provider to provide, or delay in the
provision of, the Services; or
vi any use by Merchant or Customers of the Services.
vii This Section 10(a) shall survive expiration or
termination of this Agreement for any reason.
a SERVICES OR SOFTWARE REMEDIES. If the Services or Software are held
or believed by Provider to infringe any third party's rights,
Provider shall have the option, at its expense, to (a) modify the
Services and Software to be non-infringing; or (b) obtain for
Merchant a license to continue using the Services or Software. If
it is not commercially reasonable to perform either of the above
options, then Provider may terminate the license with respect to
the infringing portion of the Services or Software. THIS SECTION 10
STATES PROVIDER'S ENTIRE LIABILITY AND MERCHANT'S EXCLUSIVE REMEDY
FOR ANY INFRINGEMENT.
1 TERMINATION; EQUITABLE RELEIF.
a TERMINATION BY EITHER PARTY. Either party may terminate this
Agreement for any reason, or for no reason, upon 30 days prior
written notice.
b MATERIAL DEFAULT. Notwithstanding the provisions of Section 11(a),
in the event that Merchant has failed to pay any amount when due or
is in breach or default of any other material obligation set forth
in this Agreement, Provider may:
i terminate this Agreement if such breach remains uncured
for a period of 5 days after such notice, provided,
however, that if Merchant is in breach of Sections 3(b),
4(a)(ii) or 9, Provider shall have the right to terminate
this Agreement immediately; and
ii exercise any right or remedy available to it at law or in
equity.
a OBJECTIONABLE PRACTICES. Notwithstanding the provisions of Section
11(a), Provider reserves the right to monitor the practices of
Merchant to determine, in the sole discretion of Provider, if the
practices are detrimental to or inconsistent with the achievement
of Provider's business objectives and strategy, and, if Provider
makes such a determination, Provider may terminate this Agreement
at any time by providing 5 days' prior written notice to Merchant.
a EFFECT OF TERMINATION. Upon termination of this Agreement, Merchant
will cease using any of the Services, and will also cease using and
will return or destroy, all copies of the Software in Merchant's
possession.
a EQUITABLE RELIEF. NOTWITHSTANDING ANY PROVISION HEREIN TO THE
CONTRARY, MERCHANT UNDERSTANDS THAT IN THE EVEN OF ITS BREACH OR
THREATENED BREACH OF ANY OF SECTIONS 3(B), 4(A)(II) OR 9, PROVIDER
WILL NOT HAVE SUFFICIENT REMEDY AT LAW IN DAMAGES, AND ACCORDINGLY
SHALL BE ENTITLED TO INJUNCTIVE RELIEF, AND NO SPECIFIC LEGAL OR
EQUITABLE REMEDY SET FORTH HEREIN SHALL BE CONSTRUED AS A WAIVER OF
ANY OTHER LEGAL OR EQUITABLE REMEDY AVAILABLE TO PROVIDER IN THE
EVENT OF A BREACH OR THREATENED BREACH OF SUCH SECTIONS BY
MERCHANT.
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18
1 LIMITATION OF WARRANTIES; LIMITATION OF LIABILITY.
a LIMITATION OF WARRANTIES. THE USE OF THE SERVICES AND SOFTWARE IS
SOLELY AT MERCHANT'S OWN RISK. THE SERVICES AND SOFTWARE ARE
PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. Provider EXPRESSLY
DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICES
AND SOFTWARE, WHETHER EXPRESS OR IMPLIED INCLUDING IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. Provider MAKES NO WARRANTY THAT THE SERVICES OR
SOFTWARE WILL MEET MERCHANT'S REQUIREMENTS, OR WILL BE
UNINTERRUPTED, TIMELY, SECURE, CURRENT, ACCURATE, COMPLETE OR
ERROR-FREE OR THAT THE RESULTS THAT MAY BE OBTAINED BY USE OF THE
SERVICES AND SOFTWARE WILL BE ACCURATE OR RELIABLE. MERCHANT
UNDERSTANDS AND ACKNOWLEDGES THAT MERCHANT'S SOLE AND EXCLUSIVE
REMEDY WITH RESPECT TO ANY DEFECT IN OR DISSATISFACTION WITH THE
SERVICES IS TO CEASE TO USE THE SERVICES AND SOFTWARE.
a LIMITATION OF LIABILITY. MERCHANT EXPRESSLY UNDERSTANDS AND AGREES
THAT Provider SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING
WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA
LOSS OR CORRUPTION, STOLEN OR MISUSED PASSWORDS, OR BREACHES IN
SYSTEM SECURITY, OR OTHER LOSSES (EVEN IF Provider HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OF,
OR INABILITY TO USE, THE SERVICES OR SOFTWARE, (ii) THE COST OF
PROCUREMENT OF ANY SUBSTITUTE PRODUCTS AND/OR SERVICES AND/OR
SOFTWARE RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR SERVICES
OBTAINED OR WHICH MERCHANT WAS UNABLE TO OBTAIN OR TRANSACTIONS
EFFECTED OR FAILED TO BE EFFECTED, (iii) ANY LINK PROVIDED IN
CONNECTION WITH THE SERVICES OR SOFTWARE (iv) ANY UNAUTHORIZED
ACCESS TO TRANSACTION DATA, OR (v) ANY MATTER OTHERWISE RELATED TO
MERCHANT'S OR CUSTOMERS' USE OF THE POS GATEWAY OR THE SERVICES OR,
IN MERCHANT'S CASE, THE SOFTWARE. MERCHANT AGREES THAT ITS SOLE AND
EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICES OR SOFTWARE IS TO
CEASE TO USE THE SERVICES OR SOFTWARE.
1 GENERAL PROVISIONS.
a FORCE MAJEURE. Provider shall not be liable for any delay or
failure due to acts of God, natural disaster, labor shortages or
disputes, changes in law, riots, war, epidemics, acts or omissions
of vendors or suppliers, transportation, communication or energy
difficulties, disruptions, delays, suspensions or terminations or
other occurrences which are beyond Provider's reasonable control.
a GENERAL PRACTICES REGARDING STORAGE. Merchant understands and
agrees that Provider may from time to time establish and revise
practices and limitations concerning Merchant's use of the
Services. Merchant agrees that Provider shall have no liability for
the deletion or failure to store any communications or other
content maintained on the site used in connection with the
provision of the Services or transmitted using the Services.
a NO WAIVER. The delay or omission by a party to exercise or enforce
any right or power of any provision of this Agreement shall not be
construed as a waiver or relinquishment to any extent of such
party's right to assert or rely upon any such provision or right in
that or any other instance. A waiver by a party hereto of any of
the covenants to be performed by any other or any breach thereof
shall not be construed to be a waiver of any succeeding breach
thereof or of any other covenant herein contained.
a ENTIRE AGREEMENT. This Agreement and the Schedule hereto together
constitute the complete and exclusive agreement between the parties
hereto, and supersede any and all prior agreements of the parties
with respect to the subject matter hereof, unless Merchant has also
entered into a Orbis Agreement with Provider, in which case both
the Merchant Agreement and this Agreement shall be effective and
enforceable. This Agreement may be amended by Provider at any time
upon five (5) days prior notice, in accordance with paragraph (h)
below.
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19
a PUBLICITY. Except as required by law or provided in this Agreement,
no party will make, directly or indirectly, any public comment,
statement, press release or other announcement or communication
relating to the terms and conditions of this Agreement without the
prior written approval of all other parties. If a party is required
by law to make any such disclosure, it first shall provide notice
to the other party of the content of the proposed disclosure, the
reason(s) that such disclosure is required by law, and the time and
place that the disclosure will be made. Notwithstanding the
foregoing provisions, Provider shall have the right to list
Merchant on the Provider Site or in Provider marketing materials as
a customer of Provider.
a ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Agreement shall be binding
on the parties hereto and their respective successors and permitted
assigns. Merchant shall not assign, sell, trade, cause to be
assumed, or otherwise transfer this Agreement or any rights granted
to Merchant herein without the prior written consent of Provider.
For the purposes of this Section 13(f), any assignment by operation
of law, under an order of any court or pursuant to any plan of
merger, consolidation or liquidation shall be deemed an assignment
for which prior consent is required, and any assignment made
without such consent shall be void and of no effect as between the
parties.
a LIMITATIONS; GOVERNING LAW. Merchant agrees that any cause of
action arising out of or relating to this Agreement must commence
within one (1) year after the cause of action arose; otherwise,
such cause of action is permanently barred. This Agreement will be
governed by and construed in accordance with the laws of the State
of Illinois without regard to or application of conflicts of law
rules or principles. The parties each consent to exclusive
jurisdiction of the state and federal courts sitting in Xxxx
County, Illinois.
a NOTICES. Any notice required or permitted by this Agreement shall
be in writing and shall be deemed given if sent by prepaid
registered or certified United States mail, return receipt
requested, overnight mail with a nationally recognized overnight
mail courier, or sent by facsimile or similar communication, and
confirmed by such mail, postage prepaid, addressed to another party
at the address shown below or at such other address for which such
party gives notice hereunder. In the case of notice from Provider
to Merchant, the parties agree that, except in the case of
termination of this Agreement, Provider may, in its sole
discretion, provide notice by electronic means (including without
limitation, by e-mail). Notices will be deemed given 5 business
days after deposit in the U.S. Mail, two business days after
deposit with an overnight mail courier, or when confirmation of
receipt is obtained if sent by facsimile or similar communication,
or if by personal delivery, when received, as applicable:
PROVIDER: WITH A COPY TO:
MERCHANT: WITH A COPY TO:
____________________________________ _____________________________________
____________________________________ _____________________________________
____________________________________ _____________________________________
____________________________________ _____________________________________
Fax: _______________________________ Fax: ________________________________
Attn: ______________________________ Attn: _______________________________
a NO AGENCY. The parties are independent contractors and will have no
power or authority to assume or create any obligation or
responsibility on behalf of each other, except as expressly
provided herein. This Agreement will not be construed to create or
imply any partnership, agency or joint venture.
a INTEREST. Any payment under this Agreement, which is not paid when
due, shall accrue interest at a rate equal to 1.5% per month or the
highest amount allowed by law.
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20
a SEVERABILITY. If for any reason a court of competent jurisdiction
finds any provision or portion of this Agreement to be
unenforceable, that provision of the Agreement will be enforced to
the maximum extent permissible so as to effect the intent of the
parties, and the remainder of this Agreement will continue in full
force and effect.
a SURVIVAL. Sections 3(b), 3(f), 6, 7, 8, 9, 10, 11 and 12 and this
Section 13 shall survive termination or expiration of this
Agreement for any reason.
a HEADINGS. Section headings are included for convenience of
reference only and do not describe the sections to which they
relate.
b EFFECTIVE. This Agreement shall not be enforceable against Provider
until signed by an authorized Provider representative.
IN WITNESS WHEREOF, the undersigned duly authorized representatives of the
parties have executed this Agreement as of the Effective Date.
[NAME OF GATEWAY PROVIDER}. MERCHANT
--------------------------------------
NAME: NAME: /S/
--------------------------------------
TITLE: CHIEF EXECUTIVE OFFICER TITLE:
--------------------------------------
DATE: DATE:
--------------------------------------- -----------------------------------------
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21
EXHIBIT A (Continued)
MERCHANT APPLICATION
PRIMARY WEBSITE INFORMATION
--------------------------------------------------------------------------------
Name of Website
--------------------------------------------------------------------------------
Website URL
--------------------------------------------------------------------------------
Site Tag
--------------------------------------------------------------------------------
Webmaster's Name
--------------------------------------------------------------------------------
Webmaster's Phone Number
--------------------------------------------------------------------------------
Webmaster's E-mail Address
--------------------------------------------------------------------------------
THIRD PARTY NOTICE RECIPIENT CONTACT INFORMATION
--------------------------------------------------------------------------------
Company Name
--------------------------------------------------------------------------------
Contact Name
--------------------------------------------------------------------------------
Contact Email Address
--------------------------------------------------------------------------------
Fax
--------------------------------------------------------------------------------
Street
--------------------------------------------------------------------------------
City
--------------------------------------------------------------------------------
State
--------------------------------------------------------------------------------
Zip Code
--------------------------------------------------------------------------------
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